COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Willis and Bray 

Argued at Norfolk, Virginia 

SHAMONT DAMON BURRELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1680-95-1 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 1, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

John E. Clarkson, Judge 

 Michael Morchower (Anthony G. Spencer; Lee W. 

Kilduff; Morchower, Luxton & Whaley, on 

brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Shamont Damon Burrell appeals his jury convictions for 

murder, malicious wounding, conspiracy and two counts of using a 

firearm in the commission of a felony. He contends: (1) that 

the trial court erred in admitting into evidence a transcript of 

an unavailable witness' prior testimony, and (2) that the 

evidence was insufficient to sustain his convictions. We affirm 

the convictions. 

 Under familiar notions of appellate review, "we review the 

evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). 

 

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

designated for publication. 
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 In the early morning hours of January 17, 1994, following a 

skating party, a fight erupted between two rival groups of 

students from Norfolk State University. Burrell was associated 

with one of the groups, which included students from the New York 

City area. Gerard Edwards was identified with the other group, 

which included students from the Washington, D.C. area. Burrell 

and Edwards fought each other during the brawl. 

 Later that evening, Burrell gathered with several friends in 

Room 228 of Scott Hall, a university dormitory. Burrell was 

still angry with Edwards and stated that "he wanted to get the 

D.C. boys." The understanding among the group was that they were 

going to shoot Edwards. Derrick Washington testified that he 

agreed to be a lookout, and Burrell was to be the "gunman." He 

testified that Burrell announced that he knew the combination 

lock to Edwards' dorm room. Burrell had lived with Edwards 

previously. 

 Washington testified that Burrell, wearing a rubber glove, 

punched in the combination to Edwards' door and entered the room 

with Tony Britton. Washington heard gunshots, and Burrell fled 

from Edwards' room, handing Washington the gun as he ran past. 

 Christopher Skinner had also agreed to act as a lookout. He 

testified that prior to the shooting Burrell was wearing black 

pants and a brown hooded sweatshirt. Ten minutes after the 

shooting, Skinner saw Burrell in the first floor lobby in a 

T-shirt and shorts. Skinner stated that he agreed to Burrell's 
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request that he would say that Burrell was downstairs with him 

during the shooting. 

 Ronald Richardson testified that he lived with Edwards in 

Room 225 of Scott Hall. Before retiring on the night of January 

17, Edwards pushed a desk against the door, and placed a baseball 

bat beside his bed. Richardson noted that Edwards appeared 

fearful. Richardson was awakened during the night by a loud 

crash. He saw the door of the room open, and flashes coming from 

a gun. Shot at least six times, Edwards died from his wounds. 

Richardson also suffered serious injuries from gunshot wounds. 

 I.

 At the preliminary hearing on April 1, 1994, Donald Toatley, 

a student at Norfolk State University, was examined and 

cross-examined under oath regarding the events that occurred at 

the skating rink. He testified that he had seen Burrell and 

Edwards fighting in a brawl at the skating rink, and saw Burrell 

attempt to hit Edwards. He stated that he asked Burrell and the 

others to "let it ride," and quit fighting. Burrell responded: 

"F___ that, I'll kill him." 

 Toatley was subpoenaed by the Commonwealth, but failed to 

appear at trial. The subpoena had been served several months 

prior to trial by posting at Toatley's residence. Toatley's 

appearance at previous proceedings had been secured by the same 

method of service. On the second day of trial, the Commonwealth 

learned that Toatley had not appeared. The trial court issued a 
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capias for Toatley's arrest, and Police Investigator Glen Ford 

attempted to locate Toatley by telephoning and visiting his 

residence. Toatley's roommate told Ford that he had not seen 

Toatley for two days, and did not know where he worked. Ford 

determined that Toatley was not in custody in any neighboring 

jurisdiction. 

 Because Toatley could not be located for trial, the 

Commonwealth proffered into evidence his prior recorded testimony 

from the preliminary hearing. The trial court admitted the 

transcript into evidence. 

 First, Burrell argues that the Commonwealth failed to show a 

diligent and good faith effort to locate Toatley. 

 Before admitting a transcript of prior 

testimony, the court must be satisfied 

"'that a sufficient reason is shown why 

the original witness is not produced.'"[] 

Thus, for a witness to be deemed unavailable, 

the proponent of the evidence bears the 

burden of proving to the satisfaction of 

the court that one of the following 

conditions exists: . . . (5) The party has 

been unable by diligent inquiry to locate the 

declarant. . . . 

Doan v. Commonwealth, 15 Va. App. 87, 100-01, 422 S.E.2d 398, 

405-06 (1992) (citations and footnote omitted). "'[I]t is well 
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settled that the sufficiency of the proof to establish the 

unavailability of a witness is largely within the discretion of 

the trial court, and, in the absence of a showing that such 

discretion has been abused, will not be interfered with on 

appeal.'" Doan, 15 Va. App. at 102, 422 S.E.2d at 406 (quoting 

Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 665 (1954)). 

 Upon reviewing the record, we conclude that the evidence 

does not support the trial court's finding that the Commonwealth 

exercised due diligence to secure Toatley's appearance. Cf.

Doan, 15 Va. App. at 101-02, 422 S.E.2d at 406 (holding that 

reasonable diligence not demonstrated where witness not 

subpoenaed and no evidence shown of other measures to secure his 

appearance). The Commonwealth did not confirm that Toatley 

actually received the subpoena. It had no contact with him from 

the issuance of the subpoena to the time of trial, and thus 

developed no continuing assurance of his appearance. It did 

not check for his appearance before the commencement of the 

trial. Its frantic efforts to locate him upon discovering his 

non-appearance were insufficient to compensate for a lack of 

appropriate pretrial precaution. 

 While we hold that the trial court erred in ruling that the 

Commonwealth had exercised due diligence to procure Toatley's 

appearance, we find that error to be harmless. The events 

described by Toatley bore only tangentially on the circumstances 

surrounding the murder. Furthermore, Toatley's testimony was 
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only cumulative. 

 Second, Burrell contends that he was denied an adequate 

opportunity to cross-examine Toatley at the preliminary hearing. 

 He argues that he was unable to question Toatley regarding the 

circumstances under which Toatley identified Burrell as having 

threatened to kill Edwards. Burrell also asserts that because 

the preliminary hearing was held prior to his indictment for 

conspiracy to murder Edwards, he was unable to fully 

cross-examine Toatley regarding the statements and actions of 

others who may have conspired to kill Edwards. 

 An accused's right to confrontation is 

satisfied with respect to the admission 

of prior testimony when the prior testimony 

was given under oath in an adversary 

proceeding, such as a preliminary hearing, 

 at which the accused had an adequate 

opportunity to cross-examine the witness on 

the issues which later develop at trial. 

Jones v. Commonwealth, 22 Va. App. 46, 52, 467 S.E.2d 841, 844 

(1996) (citing Fisher v. Commonwealth, 217 Va. 808, 813, 232 

S.E.2d 798, 801-02 (1977); Lassiter v. Commonwealth, 16 Va. App. 

605, 614, 431 S.E.2d 900, 905 (1993)). 

 Burrell's counsel availed himself of the opportunity to 

cross-examine Toatley at the preliminary hearing. While counsel 

declined to explore whether the photographic identification by 

Toatley of Burrell was unduly suggestive, he was not denied 

adequate opportunity to do so. The subsequent indictment for 

conspiracy did not render Burrell's prior opportunity to confront 
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Toatley at the preliminary hearing inadequate. The issues at the 

preliminary hearing, and at trial, about which Toatley could 

testify, concerned the events witnessed at the skating rink. The 

skating rink brawl occurred prior to the formation of the 

conspiracy, prior to the murder of Edwards, and prior to the 

malicious wounding of Richardson. Because the issues at the 

preliminary hearing were the same or similar to the issues which 

later developed at trial, the addition of the conspiracy charge 

was of no consequence in guaranteeing Burrell an adequate 

opportunity to cross-examine Toatley. 

 II.

 Burrell contends next that the evidence was insufficient to 

sustain his convictions because Christopher Skinner and Derrick 

Washington benefitted from their testimony and gave conflicting 

accounts of what transpired. We disagree. 

 When the law says that it is for the 

triers of fact to judge the credibility of a 

witness, the issue is not a matter of degree. 

 So long as a witness deposes as to facts 

which, if true, are sufficient to maintain 

their verdict, then the fact that the 

witness' credit is impeached by contradictory 

statements affects only the witness' 

credibility; contradictory statements by a 

witness go not to competency but to the 

weight and sufficiency of the testimony. If 

the trier of fact sees fit to base the 

verdict upon that testimony there can be no 

relief in the appellate court. 

Swanson v. Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 

(1989) (citation omitted). 

 The jury accepted the Commonwealth's evidence, and rejected 
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Burrell's testimony that he was not involved in the shooting of 

Edwards and Richardson. Our review of the record reveals 

sufficient credible evidence to sustain Burrell's convictions. 

Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.