COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

DEQUAN SHAKEITH SAPP 

 OPINION BY 

v. Record No. 0483-00-1 JUDGE G. STEVEN AGEE 

 MAY 22, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 (David B. Olson; Cope, Olson & Yoffy, P.L.C., 

on brief), for appellant. Appellant 

submitting on brief. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 The Circuit Court of the City of Newport News convicted 

Dequan Shakeith Sapp (Sapp) in a bench trial of robbery, maiming 

and two counts of using a firearm in the commission of those 

felonies. He was sentenced to serve a total of eleven years for 

these offenses. 

 Sapp contends on appeal the trial court erred when it 

permitted the prior recorded preliminary hearing testimony of the 

victim and an eyewitness to be admitted into evidence where both 

witnesses were present at trial but refused to testify. Finding 

no error by the trial court, we affirm the convictions. 
Background 

 On Sunday, April 4, 1999, Sean McClellan (McClellan) 

dropped Billy Perkins (Perkins) off near his home after a 

shopping trip. As Perkins began walking toward his home, two 

cars pulled up next to him. Sapp and four other men jumped out 

of the vehicles and surrounded Perkins. Sapp asked Perkins, 

"where's my brother's shit," which Perkins understood as a 

reference to cocaine. When Perkins denied that he had any 

cocaine, Sapp ran over to his car, pulled out a Tech 9 gun and 

returned to Perkins. Pointing the gun at Perkins' face, Sapp 

grabbed the gold chain hanging on Perkins' neck and pulled it 

off. As Perkins backed up so that he was seated on one of the 

cars, the group of men repeatedly punched him and rifled through 

his pockets, stealing his pager. Perkins heard someone say, 

"slit his wrist, slit his wrist." Perkins managed to get to his 

feet and flee. He was later treated at a hospital where wounds 

to his hand and lip were stitched. 

 McClellan witnessed the crimes from his vehicle. 

 On August 24, 1999, both Perkins and McClellan testified at 

length in the preliminary hearing and were cross-examined 

extensively by two defense counsel. Sapp changed counsel 

between the preliminary hearing and trial. 

 At trial on December 21, 1999, both Perkins and McClellan 

were sworn as witnesses but refused to testify, each telling the 

trial judge he was afraid for his life. Perkins testified: 

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I'm too scared, you know, to say anything, 

testify, for the simple fact I'd be 

jeopardizing my life . . . . I know what 

happened, but I'm too scared, you know, to 

say . . . . 

 Similarly, McClellan testified: 

I don't want to testify. I don't want to 

testify . . . . I don't feel safe 

testifying. 

McClellan also testified that he "forgot a lot of stuff." 

 Perkins and McClellan both stated in open court that they 

were refusing to testify. Upon examination by the 

Commonwealth's attorney, both Perkins and McClellan affirmed 

that they remembered their appearance at the preliminary hearing 

and that the testimony given at the preliminary hearing had been 

truthful. Neither could identify specific threats from Sapp or 

persons acting for Sapp, but both had heard "talk on the street" 

threatening their personal safety if they testified at trial. 

 The Commonwealth moved to have Perkins' and McClellan's 

testimony from the preliminary hearing entered into the record, 

on the basis that each witness "is declaring himself 

unavailable." In its motion, the Commonwealth cited our 

decision in Jones v. Commonwealth, 22 Va. App. 46, 467 S.E.2d 

841 (1996), as recognizing a hearsay exception for prior 

testimony of an unavailable witness. Sapp's trial counsel 

timely objected to the introduction of the preliminary hearing 

testimony and asked the trial court to use its contempt power to 

compel Perkins and McClellan to testify. 

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 The trial judge conducted a colloquy with each witness to 

verify he knew the refusal to testify meant his prior testimony 

would be read into the trial record. The trial judge opined 

that he could not use the contempt power in this setting. The 

judge, citing Jones, then denied Sapp's motion and admitted into 

the record the preliminary hearing testimony of Perkins and 

McClellan. Sapp was convicted and later sentenced. 

Analysis 

 On appeal, Sapp alleges several grounds for his contention 

that the trial court erred when admitting the prior testimony. 

All of Sapp's arguments are tied to his constitutional right to 

confront the witnesses against him. (U.S. Const. amend. VI; Va. 

Const., art. I, § 8). Citing Longshore v. Commonwealth, 260 Va. 

3, 530 S.E.2d 146 (2000), Sapp argues the case law requirements 

for introducing prior testimony were not met. 

 In Longshore, the Supreme Court of Virginia reiterated the 

general standards under which prior testimony of an unavailable 

witness may be admitted at a later proceeding as an exception to 

the rules of evidence regarding hearsay. 

[T]he preliminary hearing testimony of a 

witness who is absent at a subsequent 

criminal trial may be admitted into evidence 

if the following conditions are satisfied: 

(1) that the witness is presently 

unavailable; (2) that the prior testimony of 

the witness was given under oath (or in a 

form of affirmation that is legally 

sufficient); (3) that the prior testimony 

was accurately recorded or that the person 

who seeks to relate the testimony of the 

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unavailable witness can state the subject 

matter of the unavailable witness's 

testimony with clarity and in detail; and 

(4) that the party against whom the prior 

testimony is offered was present, and 

represented by counsel, at the preliminary 

hearing and was afforded the opportunity of 

cross-examination when the witness testified 

at the preliminary hearing. 

Id. at 3-4, 530 S.E.2d at 146-47 (citations omitted). 

Essentially, Sapp alleges conditions one and four were not met 

in this case. No error is alleged as to the second and third 

requirements. 

 As to the "unavailability" of the witnesses, Sapp argues 

his case is distinguishable from our ruling in Jones because the 

reluctant witness there was "unavailable" due to real or feigned 

memory loss. Because Perkins and McClellan claimed fear, not 

memory loss, as their reason not to testify, Sapp argues Jones

should not apply. Sapp also avers that the witnesses could have 

been made "available" had the trial court threatened them with 

contempt, which the court refused to do. 

 As to the last condition in Longshore, Sapp argues that 

because trial counsel, as opposed to his counsel at the 

preliminary hearing, could not cross-examine Perkins and 

McClellan, he was denied his constitutional right to confront 

the witnesses against him. 

I. The Unavailable Witness 

 Both the United States Supreme Court and the Supreme Court 

of Virginia have long recognized the admissibility in a criminal 

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trial of prior recorded testimony of an unavailable witness 

under certain circumstances. Mattox v. United States, 156 U.S. 

237 (1985); Fisher v. Commonwealth, 217 Va. 808, 232 S.E.2d 798 

(1977). The preliminary condition which must be met is that the 

declarant, whose former testimony is to be admitted into 

evidence as a hearsay exception, must be "unavailable." Doan v. 

Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 398, 405 (1992). 

 "The party offering the hearsay testimony has the burden of 

establishing the witness' 'unavailability.' Determining whether 

the offering party has met its burden and, thus, whether the 

declarant is 'unavailable,' is left to the trial court's 

discretion." Jones, 22 Va. App. at 50, 467 S.E.2d at 843. 

 While we have recognized a number of factors which may 

satisfy the foundational requirement of "unavailability" of a 

witness (i.e., the witness dies), it is clear there is no 

exclusive list. Id. at 50-51, 467 S.E.2d at 843; see also

Charles E. Friend, The Law of Evidence in Virginia § 18-9 (4th 

ed. 1993). To the contrary, the Supreme Court of Virginia's 

long-standing rule is "that a sufficient reason is shown why the 

original witness is not produced." Wise Terminal Co. v. 

McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907); accord

Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 664 (1954). 

 Based on this precedent, we held in Jones that the prior 

testimony of Brown was admissible because Brown's testimony was 

unavailable even though he was present in court. 

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[T]he trial court did not abuse its 

discretion in finding that Brown's memory 

loss at trial, whether real or feigned, 

rendered him unavailable. Brown's testimony 

at trial was not forthcoming, despite the 

Commonwealth's repeated questions, its 

attempt to refresh his memory, and its grant 

of immunity. Brown admitted that he simply 

did not want to testify and ultimately could 

not be compelled to "remember." Thus, 

although Brown appeared in court and 

testified to his present lack of memory, he 

was "unavailable" for purposes of the 

exception. In such cases, the focus of the 

inquiry is not the unavailability of the 

witness but the unavailability of the 

testimony. 

22 Va. App. at 52, 467 S.E.2d at 844 (emphasis added). 

 We see no meaningful distinction between the unavailable 

witness testimony by reason of memory loss in Jones and the 

unavailable witness testimony of Perkins and McClellan by reason 

of fear. The unavailable testimony of a fearful witness is as 

unavailable as if the witness had forgotten the events or become 

incapacitated. The testimony is simply not available, and no 

means is extant to make it so. 

 Contrary to Sapp's contention that Jones only refers to 

witnesses with failed memory, the reluctant witness there 

"simply did not want to testify." Id. Perkins' and McClellan's 

refusals here are not mere recalcitrance, but were based on a 

real fear of retribution or retaliation if they testified. The 

testimony of Perkins and McClellan was uncontradicted as to the 

fear for their safety should they testify at trial. 

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 The trier of fact was uniquely and appropriately situated 

to observe the demeanor of both witnesses and ascertain whether 

or not their testimony of fear-induced silence was real or 

feigned. Witness credibility, the weight accorded the testimony 

and the inferences to be drawn from proven facts are matters to 

be determined by the fact finder, and the trial court's judgment 

will not be disturbed on appeal unless it is plainly wrong or 

without evidence to support it. See Code § 8.01-680; see also

Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 

(1989). 

 An exception to the hearsay rule on unavailability of the 

declarant due to the witness' refusal to testify based on fear 

appears to be a question of first impression in Virginia. Other 

states and the federal courts have dealt with such a refusal to 

testify, have found the fearful witness "practically 

unavailable," and have ruled that the witness' prior testimony 

was admissible as a valid hearsay exception and not violative of 

the Confrontation Clause. 

 In Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000), the 

United States Court of Appeals for the Second Circuit, applying 

New York state law in a habeas corpus proceeding, ruled that 

where a witness refuses to testify out of fear, and the 

prosecutor demonstrates that the witness has been threatened, 

the witness is "practically unavailable" for purposes of the 

hearsay exception for prior testimony. Id. at 9-10. 

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 In Geraci, an eyewitness to a stabbing testified before a 

state grand jury that he saw the defendant stab the victim. It 

was later discovered that the grand jury minutes were missing, 

and, just prior to trial, the witness quit his well-paying job 

without notice and fled from his home. When he subsequently was 

located in Florida, the witness stated that he had been 

approached by a person who showed him the grand jury minutes 

describing his testimony and that both he and his family were 

threatened. In addition, he had been offered and received 

substantial sums of money for staying away from New York until 

after the trial. None of these events, though, could be 

personally connected to Geraci, the defendant. 

 Prior to testifying at trial, the witness indicated to 

prosecutors that he would change the story he had given under 

oath before the grand jury. The witness followed through with 

his plan and testified that he had not seen the stabbing. He 

explained the discrepancy between this testimony and his 

testimony before the grand jury on the ground that when he first 

testified he was unsure of the facts because the club had been 

dark and he had been drinking. 

 The state trial court determined that the witness was 

"markedly evasive" in this testimony. The trial court also 

found that the prosecution had demonstrated by clear and 

convincing evidence that someone acting on Geraci's behalf 

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threatened the witness and that if required to testify, the 

witness would do so falsely. As a result, the trial court found 

the witness "practically unavailable" and permitted the use of 

his grand jury testimony in the prosecution's case. Geraci was 

convicted, and the appellate courts of New York affirmed. The 

Second Circuit held, "'a witness who is so fearful that he will 

not testify' or will testify falsely, 'is just as unavailable as 

a witness who is dead or cannot be found.'" Id. at 9 (citations 

omitted). 

 We find no merit in Sapp's claim that the trial court erred 

by not using the contempt power to compel Perkins and McClellan 

to testify. As at trial, Sapp cites no authority for this 

argument. The use of the court's contempt power is 

discretionary, not mandatory, and cannot be applied in all 

situations. Code § 18.2-456; see also Higginbotham v. 

Commonwealth, 206 Va. 291, 142 S.E.2d 746 (1965). The record 

does not reflect the trial judge acted improperly or abused his 

discretion in this regard. To the contrary, the trial judge 

pointed out to each witness that his preliminary hearing 

testimony would be used against Sapp if the witness continued to 

refuse to testify. Thus, the trial judge clearly informed each 

witness he could not escape the use of his testimony. 

 We conclude the first condition of Longshore was satisfied. 

The witnesses, Perkins and McClellan, were unavailable because 

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they refused to testify based on uncontradicted evidence of 

their fear for their personal safety. 

II. Opportunity of Cross-Examination 

 Sapp argues that the last prong of Longshore was violated 

in this case because his trial attorney did not cross-examine 

Perkins and McClellan at the preliminary hearing. Accordingly, 

Sapp avers his Confrontation Clause right was thwarted. We 

disagree. 

Longshore and prior case law are manifestly clear that it 

is the "opportunity of cross-examination" which must be 

available at the prior proceeding. Longshore, 260 Va. at 4, 530 

S.E.2d at 147 (citations omitted). There is no support for 

Sapp's argument that this "opportunity" is provided only if 

trial counsel is the person afforded that opportunity. 

 The record plainly reflects Perkins and McClellan were 

subject to extensive cross-examination at the preliminary 

hearing by two attorneys. Between the preliminary hearing and 

trial, Sapp changed counsel. Without question, Sapp received 

and exercised the opportunity of cross-examination. We find no 

merit to his contention that such opportunity should apply only 

to his last counsel of record. 

 For the foregoing reasons, we hold Sapp's Confrontation 

Clause rights were met. The witnesses' preliminary hearing 

testimony was properly admitted at trial because they were 

effectively unavailable and Sapp had been adequately afforded 

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the opportunity of cross-examination at the prior proceeding. 

Accordingly, all of Sapp's convictions are affirmed. 

Affirmed. 

 

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Benton, J., dissenting. 

 The Sixth Amendment provides, in part, that "[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . 

to be confronted with the witnesses against him." The United 

States Supreme Court has held that this right of confrontation 

is fundamental and is made obligatory on the States through the 

Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 

(1965). While the Confrontation Clause and the hearsay rules 

have similar aims, their prohibitions are not equivalent. Idaho 

v. Wright, 497 U.S. 810, 814. "The Confrontation Clause . . . 

bars the admission of some evidence that would otherwise be 

admissible under an exception to the hearsay rule." Id. In 

order to satisfy the Confrontation Clause, the prosecution must 

establish that use of the prior testimony is necessary because 

the declarant is unavailable and the evidence bears adequate 

"indicia of reliability," such as where it falls within a firmly 

rooted hearsay exception. Id. at 814-15. 

 The rule is well established in Virginia concerning the 

admission of such evidence as an exception to the hearsay rule. 

As a prerequisite to the admission into evidence of testimony 

given at a former hearing, the record must establish the 

"unavailability" of the witness. Burton v. Oldfield, 195 Va. 

544, 549-50, 79 S.E.2d 660, 664 (1954). 

 In this case, the Commonwealth failed to satisfy the 

"unavailability" requirement necessary to conform to the 

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strictures of both the Confrontation Clause and the hearsay 

rule. The record clearly establishes that Sean McClellan and 

Billy Perkins were present in the courtroom and testified under 

oath. In no sense can we say either was "an absent witness," 

which was the circumstance existing in Longshore v. 

Commonwealth, 260 Va. 3, 3, 530 S.E.2d 146, 146 (2000). 

 In addition, the testimony of each witness establishes that 

he was not "unavailable." As we noted in Jones v. Commonwealth, 

22 Va. App. 46, 467 S.E.2d 841 (1996), Virginia precedent has 

established a partial list of reasons why a declarant may be 

"unavailable," including death, illness and the opposing party's 

causing the declarant's absence. 22 Va. App. at 50-51, 467 

S.E.2d at 843. In Jones, we expressly decided as an issue of 

first impression in Virginia "[w]hether a witness' lack of 

memory renders the witness 'unavailable.'" Id. at 50, 467 

S.E.2d at 843 (emphasis added). The record in that case 

established the following: 

 At Jones' trial, the Commonwealth called 

both Johnson and Brown as witnesses. Both 

men testified that they did not remember 

either the incident or having spoken with 

the police. Brown further claimed that he 

did not know Jones and that he had no memory 

of the events leading to Watson's death. In 

response to the Commonwealth's questions, 

Brown asserted his Fifth Amendment right 

against self-incrimination. The 

Commonwealth then granted immunity to Brown, 

but Brown claimed that he did not want to 

testify. Brown continued to maintain that 

he could not remember the crime. He also 

maintained that he could not remember his 

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statement to the police, or testimony at the 

preliminary hearing. 

Id. at 49, 467 S.E.2d at 843. Under these circumstances, the 

trial judge "concluded that Brown's inability to remember his 

preliminary hearing testimony rendered him an 'unavailable' 

witness." Id. at 49-50, 467 S.E.2d at 843. We affirmed the 

trial judge's decision to allow the use of the witness' prior 

testimony, and we held that "although [the witness] appeared in 

court and testified to his present lack of memory, he was 

'unavailable.'" Id. at 52, 467 S.E.2d at 844. We did not hold 

that mere unwillingness to testify was sufficient to make a 

witness "unavailable." 

 Citing Geraci v. Senkowski, 211 F.3d 6, 8 (2d Cir. 2000), 

the Commonwealth argues that general fear of testifying makes a 

witness unavailable. In Geraci, however, the record established 

the following: 

 The trial court determined that Terranova 

had been "markedly evasive" in his testimony 

at the hearing. The trial court also found 

that the prosecution had demonstrated by 

clear and convincing evidence that Terranova 

had been threatened by [the accused] or 

someone acting on [the accused's] behalf, 

and that if required to testify, he would do 

so falsely. As a result, the trial court 

found Terranova "practically unavailable" 

and permitted the use of his grand jury 

testimony in the prosecution's case. 

Id. at 8. 

 Upon these findings, the court in Geraci held that the 

witness "was 'practically unavailable' because of threats 

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against him and his family made on behalf of [the accused]." 

Id. at 9. In other words, Geraci merely restates the well 

established, unremarkable proposition that "[an accused] who 

procures a witness's absence waives the right of confrontation 

for all purposes with regard to that witness, not just to the 

admission of sworn hearsay statements." United States v. 

Aguiar, 975 F.2d 45, 47 (2d Cir. 1992). 

 I believe that we eviscerate the Confrontation Clause and 

the hearsay rule by expanding the meaning of "unavailability" to 

include a generalized fear of harm. This unprecedented 

expansion unreasonably curtails an accused's right to confront 

the witnesses against him or her any time a witness simply 

refuses to testify without identifying a specific, credible 

threat. The majority's position imposes a limitation that 

hinders the accused's right of confrontation and the 

fact finder's ability to determine the truth of a matter.1 

 Furthermore, the Commonwealth has not borne its burden of 

proving that Sapp caused or contributed to the reluctance of 

these witnesses to testify. No evidence in this case tends to 

prove that Sapp or anyone acting on his behalf threatened or 

 1

 The position taken by the majority and the trial judge is 

further undermined by the fact that the witnesses' preliminary 

hearing testimony was admitted despite the witnesses' fear that 

they would be harmed if they testified. In effect, these 

witnesses were allowed to control the presentation of their 

testimony. Rather than acquiesce to these conditions, the trial 

judge should have explored every avenue that might have led them 

to testify, including use of the contempt power. 

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intimidated these witnesses. The evidence proves only that 

McClellan and Perkins were reluctant to testify and expressed 

only a general fear because of "hearing talk here and there in 

the streets." This evidence was not sufficient to prove the 

witnesses were unavailable and would not have testified under 

proper circumstances and safeguards. 

 I would hold that the mere unwillingness of a witness to 

testify because of a generalized fear is insufficient to make 

the witness "unavailable." Accordingly, I would hold that the 

trial judge erred by admitting into evidence at trial, as an 

exception to the hearsay rule and the commands of the 

Confrontation Clause, the witnesses' prior testimony given at a 

preliminary hearing. 

 I dissent. 

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