COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

JAMAL R. BRENT, s/k/a 

 JAMAL RAHIM BRENT 

v. Record No. 2049-94-2 MEMORANDUM OPINION* BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA FEBRUARY 6, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Joseph F. Spinella, Judge Designate 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender; Office of 

the Public Defender, on brief), for 

appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Jamal Rahim Brent was convicted in a bench trial of 

malicious wounding and felonious use of a firearm. On appeal, 

Brent contends that the trial court erred by refusing hearsay 

evidence that a third party admitted shooting the victim. We 

find no error and affirm the judgment of the trial court. 

 On February 23, 1994, at approximately 9:00 p.m., Douglas 

Cheatham was shot five times outside his home. On the night of 

the shooting, in a photographic lineup, and in court, he 

identified Brent as the shooter. Cheatham testified that on the 

night he was shot, he saw Brent standing in the alley beside his 

neighbor's front yard. Cheatham had walked out onto his porch to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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watch for his wife. As he walked through his gate towards the 

street, he heard two shots, both of which struck him in the back. 

 As he fell, he was shot three more times, twice in the arm and 

once in the chest. Cheatham testified that he tried to see who 

shot him and that he saw Brent standing about four to five feet 

away smiling at him. 

 Brent denied shooting Cheatham. He contends that Demartric 

Gray fired the shots. He testified that Gray confessed to him 

and to his cousins, Tarsha Brent and China Walker, that Gray shot 

Cheatham. The trial court refused to admit this testimony, 

ruling that it was inadmissible hearsay. Brent contends that the 

statement is admissible as a declaration against penal interest 

because Gray was unavailable. 

 After the defense rested, the trial court allowed it to 

reopen its case and to call Gray as a witness. The court wanted 

to compare the appearances of Gray and Brent. Gray testified 

that he had heard about the shooting, that he had seen Cheatham 

on Robinson Street before, but that he had no involvement in the 

shooting. Defense counsel did not question Gray about his 

alleged statement that he had shot Cheatham. After Gray 

testified, the Commonwealth called Cheatham to testify. Once 

again, Cheatham identified Brent as the shooter. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion." Jackson v. 
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Commonwealth, 13 Va. App. 599, 603, 413 S.E.2d 662, 665 (1992) 

(citations omitted). "As a general rule, hearsay evidence is 

incompetent and inadmissible." Neal v. Commonwealth, 15 Va. App. 

416, 420, 425 S.E.2d 521, 524 (1992) (citing Coureas v. Allstate 

Ins. Co., 198 Va. 77, 83, 92 S.E.2d 378, 383 (1956)). "The party 

seeking to rely upon an exception to the hearsay rule has the 

burden of establishing admissibility." Id. at 421, 425 S.E.2d at 

524. 

 A statement that is against the penal interest of the 

declarant at the time it is made is admissible as a 

"declaration against interest" exception to the hearsay 

prohibition. However, before such a statement is 

admitted, the party offering it must prove that the 

declarant is unavailable to testify at trial. 

Ferguson v. Commonwealth, 16 Va. App. 9, 11, 427 S.E.2d 442, 444 

(1993) (citations omitted). 

 Demartric Gray was not unavailable as a witness at Brent's 

trial. When Brent moved for the admission of the expected 

hearsay testimony, he failed to prove that Gray was unavailable. 

 Gray had not taken the witness stand and had not refused to 

testify. A witness is unavailable if he is not physically 

present or he takes the stand and refuses to testify. See Morris 

v. Commonwealth, 229 Va. 145, 326 S.E.2d 693 (1985). A refusal 

to testify cannot be assumed. See Scaggs v. Commonwealth, 5 Va. 

App. 1, 5, 359 S.E.2d 830, 832 (1987). Furthermore, Gray was 

called as a witness and testified without invoking his Fifth 

Amendment privilege against self-incrimination. Thus, he was not 

unavailable and his statement did not fall within the declaration 
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against interest exception to the hearsay rule. 
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 We affirm the judgment of the trial court. 

 Affirmed.