COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

ALVIN J. COOPER, S/K/A 

 ALVIN JERMAINE COOPER 

 OPINION BY 

v. Record No. 0489-97-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 Charles E. Haden (J. Robert Harris, III, on 

brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Richard Cullen, Attorney General; 

Kimberley A. Whittle, Assistant Attorney 

General, on brief), for appellee. 

 Alvin J. Cooper (defendant) was convicted in a bench trial 

for robbery and the related use of a firearm in violation of Code 

§§ 18.2-53.1 and 18.2-58. On appeal, he complains that the trial 

court erroneously admitted into evidence the written statement of 

a codefendant and challenges the sufficiency of the evidence to 

support the convictions. Finding no error, we affirm the 

decision of the trial court. 

 In accordance with well established principles, we consider 

the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 

S.E.2d 534, 537 (1975). 

 At approximately 6:00 a.m. on April 27, 1996, Kentwan Boone, 
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Charles Scott, and defendant approached the victim as he prepared 

to enter his truck. While standing within "two or three feet" of 

the victim, one of the three pointed a firearm at him and 

demanded money. The other two were positioned "[b]ehind the 

truck a couple of feet," and "[o]ff to the right," approximately 

"15 to 20" feet away. The victim recalled that the weapon 

"looked like a handgun . . . [with] a copper metallic look" but 

"[w]hether it was real or not, [he] could not tell." Fearful, 

the victim emptied his pockets onto the ground. One assailant 

grabbed the victim's keys, another removed the victim's 

"portfolio" from his truck, and the perpetrators then fled in a 

vehicle driven by defendant and owned by his father. 

 A nearby resident observed the robbery and alerted police. 

Soon thereafter, Virginia State Trooper Stephen Harris stopped 

the vehicle and ascertained that defendant was the driver, Boone 

and Scott the passengers. The victim's checkbook and operator's 

license were found on the front seat. Minutes later, another 

officer brought the victim to the scene, and he identified the 

three suspects as the robbers. 

 Both Boone and defendant provided investigators with written 

statements. Boone admitted that the threesome were "planning to 

rob someone" when they initially observed the victim. He 

recalled that Scott wielded the weapon, a "real" gun, and that 

defendant had discarded the victim's portfolio as he drove the 

getaway vehicle from the crime scene. Defendant acknowledged 
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only "watching" the robbery, "kick[ing]" the victim's keys, and 

driving his companions away. He denied involvement in planning 

the offense, explaining that the men were en route "to meet a guy 

named Kevin" when they observed the victim, "walking." He 

claimed that Boone then "pulled out the water gun" and demanded 

that the victim "stop looking at where they were going." When 

police asked defendant why the victim was "chosen to be robbed," 

he responded that "[h]e was the only one out, watching us." 

 The Commonwealth subpoenaed Boone for trial on three 

separate occasions,1

 always at the same address. The sheriff's 

returns reported personal service on Boone in the first instance 

on October 3, 1996, for trial October 21, 1996, and "posted" 

service on October 30, 1996, for trial November 5, and, again, on 

November 18, 1996, for the actual trial date, January 10, 1997. 

Nevertheless, Boone failed to appear at trial and the 

Commonwealth offered his statement to police as evidence against 

defendant, relying upon Boone's unavailability to testify as an 

exception to the hearsay rule. Overruling defendant's objection, 

the court concluded that "looking at the totality of the 

circumstances, . . . [Boone's] absence here today would lead me 

to believe that he is unavailable, so I declare him to be a 

witness that's unavailable," and Boone's confession was received 

into evidence. 

 1Trial was twice continued, but these delays are not in 

issue. 
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The Third Party Statement

 In Virginia, for a declaration against 

penal interest to be admissible, it must meet 

the following requirements: (1) the 

declarant must be "unavailable to testify at 

trial," (2) the statement must be against the 

declarant's interest at the time it was made; 

and (3) the declarant must be aware at the 

time the statement is made that it is against 

his or her interest to make it. While it is 

settled . . . that a declaration against 

penal interest is recognized as an exception 

to the hearsay rule, "'such a declaration 

made out of court by . . . [an] unavailable 

witness is admissible only upon a showing 

that the declaration is reliable.'" 

Randolph v. Commonwealth, 24 Va. App. 345, 355, 482 S.E.2d 101, 

105-06 (1997) (citations omitted). Defendant challenges only 

Boone's unavailability to testify and the reliability of his 

statement to police. 

 "[A] declarant is unavailable if the party seeking to 

introduce the statement has been unable by diligent inquiry to 

locate the declarant." McDonnough v. Commonwealth, 25 Va. App. 

120, 127, 486 S.E.2d 570, 573 (1997) (citations omitted). "Due 

diligence requires only a good faith, reasonable effort; it does 

not require that every possibility, no matter how remote, be 

exhausted." Id. at 129, 486 S.E.2d at 574 (citations omitted). 

However, "at a minimum, . . . a party [must] attempt to subpoena 

the witness or provide a reasonable explanation of why a subpoena 

was not issued." Id. "'The party offering [the] hearsay 

testimony has the burden of establishing the witness' 

"unavailability." Determining whether the offering party has met 
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its burden and, thus, whether the declarant is "unavailable," is 

left to the trial court's discretion,'" and "will be reversed on 

appeal only if plainly wrong or without evidence to support it." 

Id. at 127, 486 S.E.2d at 573; see also Wise Terminal Co. v. 

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

Commonwealth, 15 Va. App. 87, 102, 422 S.E.2d 398, 406 (1992). 

 Here, the record clearly discloses the Commonwealth's 

diligence in seeking to compel Boone's presence when the subject 

indictments were scheduled for trial. Timely subpoenas, issued 

only weeks apart to the same address, had resulted in both 

personal and posted service on Boone. Nothing suggested that 

Boone had relocated or was otherwise unaware of the subpoenas. 

Under such circumstances, the court properly exercised sound 

discretion in concluding that the Commonwealth had acted 

responsibly to secure Boone's attendance at trial and thereby 

established his unavailability.2

Reliability

 "'[W]hen one person accuses another of a crime under 

circumstances in which the declarant stands to gain by 

inculpating another, the accusation is presumptively suspect and 

must be subjected to the scrutiny of cross-examination.'" 

McDonnough, 25 Va. App. at 131, 486 S.E.2d at 575 (quoting Lee v. 

 

 2On appeal, defendant contends the trial court found Boone 

unavailable only because the Commonwealth anticipated an 

invocation of his Fifth Amendment rights. However, this 

assertion is unsupported by the record. 
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Illinois, 476 U.S. 530, 541 (1986)). "'But where proffered 

hearsay has sufficient guarantees of reliability to come within a 

firmly rooted exception to the hearsay rule, the Confrontation 

Clause is satisfied.'" Id. (quoting White v. Illinois, 502 U.S. 

346, 356 (1992)). Thus, 

 "'once it has been established that a 

third-party confession has been made, the 

crucial issue is whether the content of the 

confession is trustworthy. And determination 

of this issue turns upon whether . . . the 

case is one where "there is anything 

substantial other than the bare confession to 

connect the declarant with the crime."'" 

Randolph, 24 Va. App. at 356, 482 S.E.2d at 106 (quoting Morris 

v. Commonwealth, 229 Va. 145, 147, 326 S.E.2d 693, 694 (1985) 

(citation omitted)). "[T]he Virginia Supreme Court has made '"no 

attempt . . . to delineate the quality or quantity of evidence 

necessary to establish reliability; the question must be left to 

the sound discretion of the trial court, to be determined upon 

the facts and circumstances of each case."'" Id. (citations 

omitted). 

 Here, Boone and defendant were among three men apprehended 

in a vehicle driven by defendant, moments after an armed robbery 

and in possession of property stolen during the offense. Within 

minutes, all were identified by the victim. Boone confessed to a 

detective shortly thereafter, naming defendant, Scott, and 

himself as the perpetrators. Moreover, defendant subsequently 

admitted complicity in a statement to the same investigator. 

Thus, the reliability inherent in Boone's admissions against his 
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penal interest was substantially enhanced by other evidence 

relating both Boone and defendant to the crimes, and the court 

correctly found the statement sufficiently trustworthy. See

Randolph, 24 Va. App. at 356-57, 482 S.E.2d at 106. 

Sufficiency of the Evidence

 Boone's confession, together with the victim's 

identifications, defendant's statements, and the circumstances of 

his apprehension, provided ample evidence to support the robbery 

conviction. With respect to the firearm offense, the victim 

testified that the weapon "looked like a handgun . . . [with] a 

copper metallic look," Boone described it as "real," and 

defendant testified that he "assume[d]" Boone "would know what 

kind of gun it was." Thus, viewed in the light most favorable to 

the Commonwealth, the evidence provided ample support for both 

convictions. 

 Accordingly, we affirm the judgment of the trial court. 

 Affirmed.