PRESENT: All the Justices 

DEQUAN SHAKEITH SAPP 

 OPINION BY 

v. Record No. 011244 JUSTICE DONALD W. LEMONS 

 March 1, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the trial court abused 

its discretion by admitting into evidence prior testimony given 

at a preliminary hearing by two witnesses who did not wish to 

testify at trial and were therefore deemed “unavailable.” 

I. Facts and Proceedings Below 

 Dequan Shakeith Sapp (“Sapp”) was charged with robbery, 

malicious wounding, and two counts of use of a firearm in the 

commission of those felonies. The victim, Billy W. Perkins, Jr. 

(“Perkins”), and a witness to the crimes, Sean McClellan 

(“McClellan”), testified at the preliminary hearing in general 

district court and were subject to extensive cross-examination 

by counsel for Sapp and counsel for a co-defendant. The general 

district court certified the charges to the grand jury, and the 

grand jury subsequently returned four indictments against Sapp. 

 At a bench trial where Sapp was represented by different 

counsel than his preliminary hearing counsel, Perkins and 

McClellan were sworn as witnesses, but both refused to testify 

concerning the substance of the allegations. Perkins told the 

Commonwealth that he was “too scared, you know, to say anything, 
testify, for the simple fact I’d be jeopardizing my life.” The 

Commonwealth asked Perkins if he had been threatened and he 

replied, “[n]ot officially, but maybe one or two verbal 

threats.” When asked if he remembered the events in question, 

Perkins said, “I know what happened, but I’m too scared, you 

know, to say, petrified. I got a little daughter to live for.” 

 At this point, the trial court and the Commonwealth further 

inquired about Perkins’ fear of testifying: 

COURT: Mr. Perkins, I can understand where 

you’re coming from. The Court is not going 

to force you to testify . . . . I’m not 

going to force you. 

PERKINS: Judge, that will lead now to me 

being the cause of somebody dying or 

somebody being the cause of my death, which, 

I can just flee out of state right now where 

my daughter lives. You see what I’m saying? 

COURT: I can’t argue that. But is that the 

way you want to live the rest of your life? 

PERKINS: Yeah. See, I don’t want to be 

affiliated with this. 

COMMONWEALTH: Are you refusing to testify, 

Mr. Perkins? 

PERKINS: Yes. 

 The Commonwealth then sought to have Perkins’ preliminary 

hearing testimony read into the record. Before permitting the 

introduction of prior transcribed testimony, the following 

exchange took place: 

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COURT: Mr. Perkins, you have previously 

been on the stand and you are aware that 

there is a charge of robbery pending against 

Dequan Shakeith Sapp in which you were named 

as the victim in the indictment. You have 

told the Court that you remember the facts 

of this situation which occurred, 

apparently, on April 4, 1999, but that you 

refused to relate those facts to the Court 

at this time. You have received, you said, 

I believe verbal threats and that you have 

fear for your safety at this time if you 

testify. Is this correct, everything that I 

have just stated? 

PERKINS: Correct. Yeah. 

COURT: And I’m giving you an opportunity at 

this point to either change your position, 

that is, that you will testify, or – as I 

say, I cannot compel you to testify, as I 

told you previously, and won’t, but I just 

want to be absolutely sure, for the record, 

that this is your position, that you refuse 

to testify. 

PERKINS: Correct. 

COURT: Now, I’m going to go one step 

further. This is not to intimidate you in 

any manner. This is not a threat in any 

manner. Under the law, if you refuse to 

testify in a case where you have given 

testimony previously in the case, that 

testimony can be read into the record and I 

am here to tell you that it will be read 

into the record. And it is still your 

position that you refuse to testify? 

PERKINS: Yes. 

 The Commonwealth continued the questioning by confirming 

that Perkins remembered testifying under oath at the preliminary 

hearing and remembered being questioned by both the 

3
Commonwealth’s Attorney and the defense attorneys. Citing Jones 

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

trial court permitted the introduction into evidence of Perkins’ 

prior sworn testimony. Sapp objected, arguing that in Jones the 

witness was unable to remember his former testimony. However, 

Perkins suffered no problems with memory; he simply refused to 

testify. Sapp further argued that the trial court could compel 

Perkins’ testimony by threat of contempt. 

 McClellan took the witness stand and similarly stated: “I 

don’t want to testify.” The trial court then inquired of 

McClellan: 

COURT: Why don’t you want to testify? 

McCLELLAN: Because I don’t feel comfortable 

testifying. 

COURT: What do you mean, you don’t feel 

comfortable testifying? 

McCLELLAN: I don’t feel safe testifying. 

. . . . 

COURT: What do you mean, you don’t feel 

safe? . . . What reason do you have to 

believe that you aren’t safe if you testify? 

. . . . 

McCLELLAN: I just don’t feel safe. 

COURT: Well, that’s not a reason. . . . 

Has somebody given you a reason that you 

don’t feel safe? 

4
McCLELLAN: I mean just hearing talk here 

and there in the streets. 

COURT: Hearing talk in the streets? What 

kind of talk? 

McCLELLAN: Like, “Don’t go to court,” talk. 

COURT: Do you know who said that? 

McCLELLAN: No. It’s just getting back to 

me word of mouth . . . . I didn’t really 

want to come [to court this morning]. 

COURT: I understand that you didn’t want to 

come. Have you testified previously in this 

case at the preliminary hearing? 

. . . . 

McCLELLAN: I think I did. Yeah. 

COURT: Did you tell what happened at that 

time? 

McCLELLAN: Uh-huh. 

COURT: Well, why, if you told at that time, 

why don’t you feel you could do it today? 

McCLELLAN: Because I realize that I made a 

mistake testifying from the beginning. 

COURT: Do you mean you made a mistake in 

judgment or do you mean you told something 

below in the District Court that wasn’t 

true? 

McCLELLAN: I mean in judgment. 

COURT: So what you testified to in the 

District Court was true, but you just don’t 

want to testify today to the same thing? 

McCLELLAN: Yeah. I think I forgot a lot of 

the stuff I testified to, because it’s been 

so long and I do so much stuff. 

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COURT: Do you want the Commonwealth to 

refresh your memory on it and then you 

testify or are you just refusing to testify? 

McCLELLAN: I mean if I’m going to jail for 

refusing to testify –- I mean I just don’t 

feel safe testifying, period. I mean I just 

don’t feel safe. 

COURT: Well, I understand that and I can’t 

tell you that I’m going to protect you or 

the police are going to protect you. I 

can’t do that. I wish I could. 

. . . . 

McCLELLAN: It’s been so long that –- like 

they was asking me a lot of questions out 

there and I forgot a lot of it because, like 

I said, I thought that all this was over 

with and I just realized that it wasn’t over 

with. 

. . . . 

COURT: If [the Commonwealth] refreshes your 

memory with it, would that help you? 

McCLELLAN: I really don’t even want to 

speak about it. 

COURT: I understand that you don’t want to, 

but I’m going to tell you that if you refuse 

to testify, that your testimony from the 

District Court is going to go into the 

record and it’s going to be used. 

McCLELLAN: Nothing can happen to me for 

refusing to testify? 

COURT: I’m not going to put you in jail for 

refusing to testify, no. 

McCLELLAN: Okay. Then I don’t want to 

testify. 

6
COURT: You are refusing to testify? 

McCLELLAN: Yes. 

COURT: Even though the Court has told you 

that I’m going to use your testimony 

previously given? 

McCLELLAN: Yes. 

 The Commonwealth then questioned McClellan to confirm that 

he remembered testifying under oath at the preliminary hearing. 

McClellan stated that he did remember testifying under oath, but 

he “was smoking a lot of marijuana around that time, so [he] 

forget[s] a lot of stuff.” He clarified that he “was telling 

the truth that day,” but further stated that he “forget[s] so 

much stuff.” Defense counsel also questioned McClellan about 

his former testimony. When asked whether his mind was “messed 

up” when he previously testified, McClellan replied that he 

didn’t remember, “it’s been so long, I can’t even answer that 

question truthfully.” McClellan further stated: “[I]f I was 

under oath, I told the truth, but I can’t remember that exact 

day. . . .” When asked if he was “absolutely sure” that he 

would tell the truth under oath, he answered, “Yes, [if I was] 

under oath.” 

 The Commonwealth moved to introduce McClellan’s prior 

recorded testimony into evidence. Sapp made the same objections 

that he made to the admission of Perkins’ former testimony. 

Over Sapp’s objections, McClellan’s former testimony was read 

7
into evidence. Sapp was subsequently convicted of all four 

charges and sentenced. 

 Sapp appealed his conviction to the Court of Appeals of 

Virginia which affirmed the judgment of the trial court. Sapp 

v. Commonwealth, 35 Va. App. 519, 529, 546 S.E.2d 245, 250 

(2001). The Court of Appeals held that the two witnesses 

against Sapp were “unavailable” by virtue of the “uncontradicted 

evidence of their fear for their personal safety.” Id. at 528, 

546 S.E.2d at 250. The Court of Appeals held that there was 

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. 

Id. at 526, 546 S.E.2d at 249. 

 The Court of Appeals further held that Perkins and 

McClellan were subject to “extensive cross-examination at the 

preliminary hearing by two attorneys”; therefore the court 

concluded that Sapp had received and exercised his right of 

cross-examination, regardless of the fact that he had different 

representation at trial. Id. at 528-29, 546 S.E.2d at 250. 

Sapp appeals from the adverse judgment of the Court of Appeals. 

8
 On appeal to this Court, Sapp argues that both Perkins and 

McClellan were physically available at trial and actually 

testified under oath about their concerns. Sapp maintains that 

their refusal to testify about the alleged criminal offense 

because of generalized concern for their safety was insufficient 

to establish the unavailability of their testimony and that the 

trial court erred in permitting the introduction of prior 

testimony from the preliminary hearing. 

II. Standard of Review 

 We review the trial court’s determination of 

“unavailability” of a witness for the purpose of establishing 

admissibility of prior sworn testimony utilizing an abuse of 

discretion standard. Burton v. Oldfield, 195 Va. 544, 550, 79 

S.E.2d 660, 665 (1954). 

III. Analysis 

 We have previously held that: 

[P]reliminary 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 unavailable witness can 

state the subject matter of the 

unavailable witness’s testimony with 

clarity and in detail; and (4) that the 

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party against whom the prior testimony is 

offered was present, and represented by 

counsel, at the preliminary hearing and 

was afforded the opportunity of crossexamination when the witness testified at 

the preliminary hearing. 

Longshore v. Commonwealth, 260 Va. 3, 3-4, 530 S.E.2d 146, 146 

(2000). The determination of the “unavailability” of a witness 

is committed to the sound discretion of the trial court. 

Burton, 195 Va. at 550, 79 S.E.2d at 665 (1954). Although the 

focus of the inquiry is often directed to the absence of a 

witness, the analysis also applies to circumstances when the 

witness is present, but for sufficient reasons the witness’s 

testimony is “unavailable.” In the case before us, Perkins 

cited only fear as the basis of his refusal to testify, while 

McClellan cited both fear and loss of memory. Our analysis is 

confined to the adequacy of the trial court’s factual findings 

and procedures to determine the unavailability of these two 

witnesses. 

In cases involving absent witnesses, we have required “that 

a sufficient reason be shown why the original witness is not 

produced; and that it is impossible, fairly speaking, for the 

person offering the evidence to produce the living witness or to 

take his deposition.” Wise Terminal Co. v. McCormick, 107 Va. 

376, 379, 58 S.E. 584, 585 (1907). We have held that: 

 In order to establish a right to 

introduce testimony of a witness given at 

10
a former trial, it is incumbent upon the 

proponent of such evidence to lay a proper 

predicate for its introduction by showing 

the unavailability of the witness who gave 

the testimony sought to be produced. In 

other words, the burden of satisfying the 

court of the validity of the excuse for 

nonproduction of witness lies upon the 

party seeking to introduce the testimony 

given by him at the former trial. It must 

be shown either that the witness is dead, 

insane, or beyond the jurisdiction of the 

court or on diligent inquiry cannot be 

found or that some other circumstance 

exists which shows that the witness who 

gave the testimony at the former trial 

cannot be produced as witness on the 

second trial. 

Burton, 195 Va. at 549-50, 79 S.E.2d at 664. Use of such 

language as “impossible, fairly speaking . . . to produce the 

living witness,” and “diligent inquiry,” demonstrates a clear 

preference for live testimony and cross-examination rather than 

resorting to recitation of prior testimony. 

 The significance of the determination of “unavailability” 

was emphasized in our recent opinion in Paden v. Commonwealth, 

259 Va. 595, 529 S.E.2d 792 (2000). In Paden, a co-defendant 

who was present in the courtroom was not called to the stand and 

never asserted his Fifth Amendment right against selfincrimination. The Commonwealth argued that the witness was 

unavailable because he could not be compelled to give evidence 

against himself. Id. at 596, 529 S.E.2d at 793. The codefendant’s statement was introduced under an exception to the 

11
hearsay rule as a statement against penal interest as recounted 

by a police detective. Id. We held that the Commonwealth 

failed to establish the unavailability of the witness and that 

the trial court erred in admitting the detective’s testimony 

because, “until [the witness] asserted those rights, he remained 

available to testify.” Id. at 597, 529 S.E.2d at 793. The 

witness’s refusal to testify had not been tested by appropriate 

procedures available to provide sufficient proof of 

unavailability of the testimony. 

 The narrow question before the Court in the present case is 

whether the trial court abused its discretion in finding the 

unavailability of both Perkins and McClellan and in admitting 

prior testimony from the preliminary hearing. On this record, 

we hold that the inquiry and procedures of the trial court 

constituted an insufficient basis for determining unavailability 

as a predicate to admission of prior testimony. 

 The proponent of hearsay testimony of an unavailable 

witness must demonstrate a “sufficient reason” for not producing 

the live testimony. Wise Terminal Co., 107 Va. at 379, 58 S.E. 

at 585. Before concluding that testimony is unavailable, the 

inquiry must include exploration of the subject matter of the 

testimony that prompts the reluctance of the witness and the 

reasons for refusal. Vague assertions of discomfort or 

generalized statements of fear or concern cannot rise to the 

12
same level of significance as evidence of specific threats. 

While it is the litigants’ responsibility to produce the 

evidence, appropriate judicial pressure should be employed to 

test the resolve of the witness. At a bare minimum, refusal to 

testify should be met with an order from the trial court 

directing the witness to testify.1 Although use of contempt 

powers is clearly subject to the discretion of the trial court, 

a contempt order in response to continued refusal to testify 

after being ordered to do so should be carefully considered. As 

the United States Court of Appeals for the Second Circuit has 

observed: 

It is always possible that a recalcitrant 

witness who does not respond to judicial 

pressure will testify when ordered to do 

so rather than face contempt proceedings 

for refusal to obey the court’s order. 

Once ordered to testify, a recalcitrant 

witness who has been bent on helping a codefendant by not testifying may then point 

to the court’s order as forcing him to do 

so. 

United States v. Oliver, 626 F.2d 254, 261 (2d Cir. 1980). We 

are not unmindful of the realities of witness intimidation and 

 the potential necessity of utilizing prior testimony when a 

witness refuses to testify. Nonetheless, the evidentiary 

foundations for utilizing hearsay testimony demand that the 

 1

 Federal Rule of Evidence 804 has similar requirements in 

its treatment of “unavailability.” 

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resolve of the witness be significantly tested before the 

testimony is declared unavailable. 

 In the case before the Court, little if any judicial 

pressure was employed to test the resolve of Perkins’ and 

McClellan’s refusals to testify. Immediately upon Perkins 

expressing reluctance to testify based upon fear, the trial 

court assured him that the court was not going to require his 

testimony. The trial court stated, “Mr. Perkins, I can 

understand where you’re coming from. The Court is not going to 

force you to testify . . . . I’m not going to force you.” Later 

in the colloquy with the witness, the trial court stated, “as I 

say, I cannot compel you to testify, as I told you previously, 

and won’t.” Although there was reference by Perkins to “maybe 

one or two verbal threats” that Perkins characterized as not 

“official,” the court made no inquiry concerning the nature and 

character of the threats, who made them, when they were made, or 

if the threats were specifically related to the case before the 

trial court. Any semblance of judicial pressure was completely 

removed when the trial court assured Perkins that nothing would 

happen to him as a result of his refusal to testify and that his 

prior testimony would be utilized instead. 

 McClellan followed Perkins to the witness stand and quickly 

informed the trial court that he did not want to testify because 

he did not “feel comfortable testifying.” He further stated 

14
that he did not feel safe and cited “hearing talk here and there 

in the streets. . . . Like, ‘Don’t go to court,’ talk.” He 

could not identify the nature and character of any threat, when 

the alleged threats were made, or who made them. Additionally, 

McClellan appeared to seek refuge in a claim of lack of memory 

based upon his use of marijuana. When the trial court asked if 

his memory could be refreshed, McClellan responded, “I really 

don’t even want to speak about it.” McClellan even asked the 

trial court, “Nothing can happen to me for refusing to testify?” 

To which the trial court responded, “I’m not going to put you in 

jail for refusing to testify, no.” As with Perkins, any 

semblance of judicial pressure was completely removed when the 

trial court assured McClellan that nothing would happen to him 

as a result of his refusal to testify and that his prior 

testimony would be utilized instead. 

 When lack of memory is legitimate and refreshing of memory 

is not efficacious, judicial pressure to testify may result in 

untrustworthy testimony. However, the bona fides of a claim of 

loss of memory must be tested. The subject matter of lost 

memory must be established because a witness may have 

recollection of some matters and not of others. Lack of memory 

relates to capacity to testify. Feigned lack of memory is 

nothing more than refusal to testify which should be met with an 

order of the trial court to testify and careful consideration of 

15
utilization of contempt powers as a sanction against continued 

refusal. Of course, the trial court is in a unique position to 

evaluate the demeanor of the witness, and after proper inquiry, 

the decision of the trial court is entitled to great deference. 

Upon persistent refusal to testify despite judicial pressures 

and an order to testify, or demonstrated bona fide lack of 

memory, the testimony of a witness may be declared unavailable 

and prior testimony may be admitted, provided that the 

additional evidentiary foundations, not at issue in this case, 

are met.2

 On this record, we hold that the trial court abused its 

discretion in finding that the testimony of Perkins and 

McClellan was unavailable and thereafter admitting evidence of 

prior testimony from the preliminary hearing. Because we decide 

this case based upon evidentiary requirements for admission of 

hearsay under state law, it is unnecessary to address 

Confrontation Clause issues under the Sixth Amendment to the 

United States Constitution. We will reverse the judgment of the 

Court of Appeals and vacate the judgment of conviction in the 

trial court. The case will be remanded to the Court of Appeals 

with directions to remand to the trial court for a new trial if 

the Commonwealth be so advised. 

 2

 We do not address in this opinion legitimate claims of 

privilege, physical or mental illness, or any other proffered 

16
Reversed and remanded. 

 

reasons for unavailability of testimony. 

17