COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Fitzpatrick 

Argued at Richmond, Virginia 

AUDLEY C. McDONNOUGH 

 OPINION BY 

v. Record No. 2947-95-2 JUDGE SAM W. COLEMAN III 

 JUNE 24, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 Stephen T. Harper (Bradford F. Johnson; 

Johnson & Walker, P.C., on brief), for 

appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The defendant, Audley McDonnough, was convicted in a jury 

trial of possessing cocaine and distributing cocaine. On appeal, 

he contends the trial court erred by admitting into evidence the 

hearsay statement of the person to whom he sold the drugs. The 

court admitted the statement under the "declaration against 

interest" exception to the hearsay rule. The defendant asserts 

the Commonwealth failed to prove that the declarant was 

unavailable to testify at trial or that the declarant's statement 

was against his penal interest. The defendant also asserts that 

admission of the statement violated his Sixth Amendment right of 

confrontation. 

 The evidence fails to prove that the Commonwealth issued a 

subpoena for the hearsay declarant, who was known to have 

recently resided in Richmond. We hold, therefore, that the 
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evidence fails, as a matter of law, to support the trial court's 

findings that the Commonwealth exercised due diligence in 

attempting to obtain the declarant's presence at trial and that 

the declarant was "unavailable." However, because the other 

evidence of the defendant's guilt is overwhelming, we hold that 

the error in admitting the declarant's hearsay statement was 

harmless. Accordingly, we affirm the defendant's convictions.1

 

 On appeal we view 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). While Richmond City 

Police Officer Schnupp was conducting surveillance in the 3400 

block of East Marshall Street in Richmond, he observed the 

defendant engaged in what appeared to be drug transactions from 

the porch of a house. Between 8:00 and 9:00 p.m., Officer 

Schnupp observed three or four individuals approach and speak 

with the defendant on the porch. After some discussion with each 

person, the defendant would place a plastic bag containing a 

rock-like object on the porch. The individual would then pick up 

the bag containing the rock-like object and place down cash which 

the defendant would retrieve after the person left. After each 

transaction, the defendant would go inside the house, a light 

would come on briefly upstairs, and then the light would go off 

 

 1 Because the trial court erred by admitting the hearsay 

statement, we need not decide whether the statement was against 

the declarant's penal interest. 
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before the defendant would reappear on the porch. Schnupp 

described the defendant as a black male with dreadlocks wearing a 

red University of Maryland sweatshirt, glasses, a stud earring in 

his left ear and a dark hat. This description matched the 

defendant's appearance when he was arrested later that evening. 

 Around 9:00 p.m., a dark-colored Renault stopped and a white 

male, later identified as Robert Henshaw, exited the automobile 

and went to the house. The defendant stepped down from the 

porch, approached Henshaw, and handed him a plastic baggie in 

exchange for money. As Henshaw drove away, Officer Schnupp 

called for a "takedown" unit to apprehend Henshaw and for another 

unit to arrest the defendant. 

 Henshaw was stopped in his car about ten seconds after 

Officer Schnupp ordered the "takedown" call. There were three 

other occupants in Henshaw's car. Henshaw consented to be 

searched, and, as a result the officers found a glass pipe and a 

plastic baggie containing a rock of cocaine in Henshaw's jacket 

pocket. A search of the other occupants disclosed no drugs. 

After Henshaw's arrest, he told the police that he had just 

bought the cocaine from a black male, approximately twenty-three 

years old, with dreadlocks, wearing a red sweatshirt, and that he 

paid $25 for it. Henshaw told the police that he had purchased 

cocaine from this person "about a hundred times." The police 

officer transcribed Henshaw's statement and Henshaw signed it. 

 Several hours after Henshaw's arrest, the police executed a 
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search warrant at the Marshall Street house where the defendant 

had engaged in the transactions. In the bedroom where Officer 

Schnupp had observed the light go on and off, the police officers 

found a locked tackle box containing four bags of cocaine, a set 

of digital scales, and a small black purse. They also found a 

shoe and a pair of jeans containing cocaine and $214 in cash. 

Corey Jones, the owner of the house, initially told police that 

the drugs found in the house were his, however, at trial, he 

testified that the cocaine in the tackle box belonged to the 

defendant and that the defendant had given him cocaine to sell. 

Jones said that the defendant had the key to the tackle box and 

did not allow Jones to open it. 

 In a search of the defendant incident to his arrest, the 

police found $621 in cash, a pager, and a wallet containing two 

keys. One of the keys fit the lock on the tackle box found in 

the bedroom of the house. 

"DECLARATION AGAINST INTEREST" HEARSAY EXCEPTION

 In order to fall under the "declaration against interest" 

exception to the hearsay rule, the party offering the statement 

must prove that the declarant is unavailable, that the statement 

was against the declarant's interest at the time it was made, and 

that the declarant was aware, at the time the statement was made, 

that it was against his interest. Boney v. Commonwealth, 16 Va. 

App. 638, 643, 432 S.E.2d 7, 10 (1993); 2 Charles E. Friend, The 

Law of Evidence in Virginia, § 18-12 (4th ed. 1993). "The party 
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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 

v. Commonwealth, 22 Va. App. 46, 50, 467 S.E.2d 841, 843 (1996) 

(citations omitted). 

 In Virginia, a declarant is unavailable if the party seeking 

to introduce the statement has been unable by diligent inquiry to 

locate the declarant. See Doan v. Commonwealth, 15 Va. App. 87, 

101, 422 S.E.2d 398, 406 (1992); Friend, supra, § 18-9. Whether 

a party has used due diligence is a factual question that will be 

reversed on appeal only if it is plainly wrong or without 

evidence to support it. See Wise Terminal Co. v. McCormick, 107 

Va. 376, 379, 58 S.E. 584, 585 (1907); Doan, 15 Va. App. at 102, 

422 S.E.2d at 406. 

 Here, in order to prove that Henshaw was unavailable, the 

Commonwealth had the burden of showing that it exercised due 

diligence in attempting to locate Henshaw in order to have him 

testify at trial. The record does not indicate that the 

Commonwealth had a subpoena issued for Henshaw. The Commonwealth 

called two witnesses to prove that they had been diligent in 

attempting to locate Henshaw and have him "available" at trial. 

Officer Zohab testified that five "informants" had been searching 

for Henshaw for one month before trial. Zohab also testified 

that he had asked several officers who knew Henshaw to look for 
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him. Additionally, Officer Zohab had information that Henshaw 

had been staying in several hotels on Richmond's northside, so he 

went to those hotels in an attempt to locate Henshaw, without 

success. On cross-examination, Officer Zohab admitted that he 

had not gone to Henshaw's last known address, but he testified 

that he knew that address to be "bad." The officer also 

acknowledged that he did not check with Henshaw's probation 

officer, even though he knew that Henshaw had been in jail within 

the last year for violating probation. Officer Zohab testified 

that he did not know whether Henshaw was on probation at the time 

he was trying to locate him for this case. Officer Zohab 

acknowledged that he had seen Henshaw within the last "two or 

three" months before trial. 

 Officer Hines testified that he went to Henshaw's last known 

address approximately three weeks before trial and was told that 

Henshaw no longer lived there. He also attempted to locate 

Henshaw by driving around Henshaw's former neighborhood at night. 

 After the trial judge heard Officers Zohab's and Hines' 

testimony, he ruled that the Commonwealth had exercised due 

diligence in trying to locate Henshaw. Thus, he held that 

Henshaw's hearsay statement describing the person from whom he 

had purchased cocaine, which was essentially identical to Officer 

Schnupp's description of the defendant, was admissible under the 

"declaration against interest" exception to the hearsay rule. 

 Due diligence is that amount of prudence "as is properly to 
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be expected from, and ordinarily exercised by, a reasonable and 

prudent man under the particular circumstances." Black's Law 

Dictionary 457 (6th ed. 1990). See also State v. Armstrong, 771 

P.2d 889, 890 (Ariz. Ct. App. 1989) ("Although the question of 

due diligence necessarily turns upon the details of each case, 

the standard is constant: whether the state took reasonable 

steps to locate the accused based upon all of the information 

that it possessed."). Due diligence requires only a good faith, 

reasonable effort; it does not require that every possibility, no 

matter how remote, be exhausted. See, e.g., People v. Watkins, 

530 N.W.2d 111, 113 (Mich. Ct. App. 1995); Commonwealth v. 

Cottman, 476 A.2d 40, 42 (Pa. Super. Ct. 1984). Thus, although 

the circumstances arguably may have required the police to 

contact Henshaw's probation officer in their efforts to locate 

him, that omission alone is not fatal to the determination that 

the Commonwealth exercised due diligence. 

 We hold, however, that due diligence requires, at a minimum, 

that a party attempt to subpoena the witness or provide a 

reasonable explanation why a subpoena was not issued. When the 

evidence proves that the issuance of a subpoena would be of no 

avail because the witness is deceased, incompetent, or beyond the 

reach of the court, then in those or similar circumstances the 

party is not required to engage in a futile act. But, an effort 

by a party, either the Commonwealth or a defendant, to locate a 

witness or obtain a promise from a witness to appear without 
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attempting to subpoena the witness cannot be considered due 

diligence in the absence of an explanation of the reason that the 

subpoena cannot be served. See State v. Terry, 359 So. 2d 172, 

173 (La. 1978) ("Generally, the 'due diligence' requirement . . . 

is not satisfied when defense counsel fails to have the potential 

witness subpoenaed."); John W. Strong, 2 McCormick on Evidence

§ 253(a), at 134 (4th ed. 1992). We have applied a similar 

requirement for establishing due diligence in order to obtain a 

continuance due to the absence of a material witness. In 

Cherricks v. Commonwealth, we said "[h]ad the witness in fact not 

been subpoenaed, the appellant would be in no position to dispute 

the denial of a continuance. Such a lack of [due] diligence on 

his part would bar him from contesting the trial court's ruling." 

 11 Va. App. 96, 100, 396 S.E.2d 397, 400 (1990). See also

Shiflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319-20 

(1977) (holding that accused did not exercise due diligence in 

obtaining witness for trial by issuing a subpoena two days before 

trial). Here, we are very mindful of the fact that the 

Commonwealth provided an explanation of extensive efforts by 

"informants" and Officers Zohab and Hines to locate Henshaw. 

However, their difficulty or inability in locating him does not 

provide a reason or explanation as to why the issuance of a 

subpoena would be futile. Furthermore, to the extent that 

Henshaw might have been avoiding the officers who had arrested 

him or the "informants" attempting to locate him in order not to 
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be called as a witness, the issuance of a subpoena may have been 

a more effective means of locating him. Moreover, an officer 

charged with the duty of serving a subpoena may determine whether 

a witness has a new address, can be located in another 

jurisdiction, or is subject to process in another state or 

country. Although an officer with a subpoena may have 

accomplished no more than Officers Zohab and Hines, the issuance 

of a subpoena assures an effort by law enforcement authorities in 

the Commonwealth to secure the presence of witnesses. 

 Rule 3A:12(a) provides that a subpoena may be issued 

ordering the attendance of witnesses in criminal cases. A 

subpoena for a witness is a judicial order directed to law 

enforcement officers to "summon the witness to appear at the time 

and place specified in the subpoena for the purpose of giving 

testimony . . . ." Rule 3A:12(a). Because a subpoena is a 

court's order, it carries with it the force and command of the 

state to find the witness and order the witness to appear; it 

carries more force than a request from a police officer or the 

Commonwealth's attorney or defense counsel for a witness to 

appear in court on a date certain. Although the testimony of 

Officers Zohab and Hines proved that considerable effort was made 

to locate Henshaw, we hold that the evidence is insufficient as a 

matter of law to prove that the Commonwealth made a good faith 

reasonable effort in the absence of proof that a subpoena was 

issued or a reasonable explanation as to why the issuance of a 
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subpoena would have been futile. The issuance of a subpoena 

alone, in the absence of other efforts to locate and secure the 

attendance of a witness, will not establish due diligence, but 

the issuance of a subpoena or proof as to why it would be a 

futile act is necessary to prove that a party was diligent in 

obtaining a witness' attendance. Accordingly, the trial court 

erred in finding that the Commonwealth had used due diligence to 

locate the witness and in ruling that the witness was 

unavailable. 

SIXTH AMENDMENT RIGHT OF CONFRONTATION

 "[T]he Sixth Amendment's right of an accused to confront the 

witnesses against him is . . . a fundamental right . . . made 

obligatory on the States by the Fourteenth Amendment." Pointer 

v. Texas, 380 U.S. 400, 403 (1965). "[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." Lee v. Illinois, 476 U.S. 530, 541 (1985). 

"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." White v. 

Illinois, 502 U.S. 346, 356-57 (1992); see also Raia v. 

Commonwealth, 23 Va. App. 546, 549, 478 S.E.2d 328, 331 (1996). 

"Where the [hearsay] exception does not require unavailability, 

it is unlikely that the [Supreme] Court will hold that the 
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Constitution requires it. Where the [hearsay] exception requires 

unavailability, the [Confrontation] clause will also require such 

a finding and will likely require a more rigorous demonstration 

by the prosecution than by other parties." McCormick on 

Evidence, supra, § 252, at 128. 

 Here, we will assume without deciding that the admission of 

Henshaw's hearsay statement without sufficient proof of Henshaw's 

unavailability violated the Confrontation Clause. See Barber v. 

Page, 390 U.S. 719, 724-25 (1968) ("In short, a witness is not 

'unavailable' for purpose of the ['prior testimony under oath'] 

exception to the confrontation requirement unless the 

prosecutorial authorities have made a good faith effort to obtain 

his presence at trial."). However, a violation of the 

defendant's Sixth Amendment confrontation rights does not 

"foreclose the possibility that this error was harmless when 

assessed in the context of the entire case against [McDonnough]." 

Lee, 476 U.S. at 547. 

HARMLESS ERROR

 Although the trial court erred by admitting Henshaw's 

statement, we find the error to have been harmless. "A defendant 

is entitled to a fair trial but not a perfect one." Lutwak v. 

United States, 344 U.S. 604, 619 (1953). "Even though testimony 

is objectionable as hearsay, its admission is harmless error when 

the content of the extrajudicial declaration is clearly 

established by other evidence." Schindel v. Commonwealth, 219 
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Va. 814, 817, 252 S.E.2d 302, 304 (1979). 

 Furthermore, assuming that the admission of Henshaw's 

statement violated the Confrontation Clause, the error was still 

harmless. "Constitutional error . . . is harmless only when the 

reviewing court is 'able to declare a belief that it was harmless 

beyond a reasonable doubt.'" Lavinder v. Commonwealth, 12 Va. 

App. 1003, 1005, 407 S.E.2d 910, 911 (1991). "[T]he appellate 

court must determine on the basis of its own reading of the 

record the probable impact of the evidence on the minds of the 

jury and whether the admission was sufficiently prejudicial to 

require reversal." Arnold v. Commonwealth, 4 Va. App. 275, 282, 

356 S.E.2d 847, 851 (1987). 

 Henshaw's admission that he purchased cocaine and his 

description of the defendant as the person from whom he purchased 

the drugs proved that a sale of cocaine had, in fact, taken place 

and effectively identified the defendant as the person who sold 

him the cocaine. Although this hearsay evidence is prejudicial 

in that it is direct evidence proving that a drug sale occurred, 

the remaining evidence which proves that the defendant sold 

Henshaw cocaine is overwhelming. Officer Schnupp, who was 

watching the house, observed the defendant selling what appeared 

to be a rock-like object to several individuals, including 

Henshaw, on the night in question. Within ten seconds of having 

observed a transaction between the defendant and Henshaw, Henshaw 

was stopped and found to be in possession of a rock-like object 
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that proved to be cocaine. The officer gave an accurate 

description of the defendant on that night and identified the 

defendant as the person he had seen make the sales. Moreover, 

Corey Jones testified that the defendant had been selling cocaine 

and was the owner of the cocaine found in the tackle box in the 

house when the search warrant was executed. A key found on the 

defendant fit the tackle box in which the police found cocaine 

and other drug paraphernalia. Other sales by the defendant of a 

similar nature in which Officer Schnupp had observed the 

defendant exchange a rock-like substance for money had occurred 

in the preceding hour. On these facts, no reasonable fact finder 

could have found that a reasonable doubt existed as to whether 

the defendant sold cocaine to Henshaw. 

 Due to the overwhelming evidence of the defendant's guilt, 

we hold that the admission of Henshaw's statement in this case 

constituted harmless error. Thus, we affirm the defendant's 

convictions. 

Affirmed.