COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Agee 

Argued at Richmond, Virginia 

LESTER FRIZZELL MORRIS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2905-00-2 JUDGE LARRY G. ELDER 

 JANUARY 15, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Ernest P. Gates, Judge Designate 

 (Linwood T. Wells, III, on brief), for 

appellant. Appellant submitting on brief. 

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Lester Frizzell Morris (appellant) appeals from his bench 

trial convictions for grand larceny of an automobile, reckless 

driving, eluding a police officer, and driving on a suspended 

license. These convictions were rendered in a new trial 

following the reversal of his original convictions for these 

same offenses based on the trial court's improper failure to 

strike a juror for cause. See Morris v. Commonwealth, No. 

0060-99-2 (Va. Ct. App. May 16, 2000). In this second appeal, 

appellant contends the trial court erroneously permitted the 

assistant Commonwealth's attorney prosecuting the case to call 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
as a witness another member of the Commonwealth's Attorney's 

office to give testimony regarding the claimed unavailability 

for the second trial of one of the Commonwealth's witnesses, a 

police officer. Appellant also contends the trial court abused 

its discretion by accepting into evidence at his second trial 

the transcribed testimony of the police officer and four other 

witnesses, all of whom testified at appellant's first trial, and 

the testimony of a sixth witness who was deposed before she 

moved out-of-state prior to the first trial. 

We hold that the admission of the testimony of an assistant 

Commonwealth's attorney was not error under the facts of this 

case. We also hold that, to the extent appellant preserved such 

arguments for appeal, the evidence supported the trial court's 

admission into evidence of the prior deposition and trial 

testimony of the witnesses unavailable for appellant's second 

trial. Therefore, we affirm appellant's convictions. 

I. 

A. 

TESTIMONY OF PROSECUTOR 

 "[I]t is not desirable for the Commonwealth's Attorney to 

testify as a witness on a material point in a case." Bennett v. 

Commonwealth, 236 Va. 448, 464, 374 S.E.2d 303, 313 (1988). 

"[A] Commonwealth's attorney [who] expects to testify on a 

material point . . . should retire from the case and let another 

be appointed to prosecute." Durrette v. Commonwealth, 201 Va. 

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735, 745, 113 S.E.2d 842, 849 (1960); cf. Va. Rules of 

Professional Conduct, Rule 3.7 (noting that lawyer or member of 

his firm may testify in proceedings in which he is an advocate 

if "the testimony relates to an uncontested issue"); Matney v. 

Cedar Land Farms, Inc., 216 Va. 932, 937, 224 S.E.2d 162, 165-66 

(1976) (citing former Va. Code of Prof. Resp., DR 5-101(B)(2)) 

(permitting law partner of defendant's trial counsel to testify 

about preparation of deed because testimony "'relate[d] solely 

to a matter of formality and there [was] no reason to believe 

that substantial evidence [would] be offered in opposition to 

the testimony'"). However, "[d]ecisions of this kind must be 

left to the sound discretion of the trial court," Bennett, 236 

Va. at 464, 374 S.E.2d at 313, and where allowing the testimony 

"result[s] in no prejudice to the defendant," the trial court 

does not abuse its discretion in permitting the testimony, 

Durrette, 201 Va. at 745, 113 S.E.2d at 849. "[I]f the 

testimony will be uncontested, the ambiguities in the 

[attorney's] dual role are purely theoretical." Va. Rules of 

Professional Conduct, Rule 3.7, cmt. [3]; see also Matney, 216 

Va. at 937, 224 S.E.2d at 165-66. Thus, the mere fact that the 

challenged testimony helps establish some matter on which the 

Commonwealth bears the burden of proof does not necessarily 

render that testimony material or prejudicial to the accused. 

 Here, the issue on which the Commonwealth offered the 

testimony of James O'Connell, an assistant Commonwealth's 

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attorney, related only to the unavailability of a witness, 

Officer Mark Drennan, to testify and not to appellant's guilt or 

innocence on the underlying charges. Thus, it was more in the 

nature of a "formality" than "a material point." Bennett, 236 

Va. at 464, 374 S.E.2d at 313; Matney, 216 Va. at 937, 224 

S.E.2d at 166. Further, appellant did not offer any evidence in 

opposition to O'Connell's testimony that Officer Drennan had 

moved out-of-state. Although offering O'Connell's testimony may 

have been ill-advised and it may have been possible for the 

Commonwealth to have offered this same testimony through one of 

Drennan's former colleagues at the police department, this 

possibility did not render the trial court's admission of 

O'Connell's testimony on Drennan's whereabouts an abuse of 

discretion. 

B. 

ADMISSIBILITY OF TRANSCRIPTS 

"Both the United States Supreme Court and the Supreme Court 

of Virginia have long recognized the admissibility in a criminal 

trial of prior recorded testimony of an unavailable witness 

under certain circumstances." Sapp v. Commonwealth, 35 Va. App. 

519, 525, 546 S.E.2d 245, 248 (2001). The party offering the 

testimony must prove, as a "preliminary condition," that "the 

declarant, whose former testimony is to be admitted into 

evidence as a hearsay exception, [is] 'unavailable.'" Id.

(quoting Doan v. Commonwealth, 15 Va. App. 87, 100, 422 S.E.2d 

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398, 405 (1992)). Even if the party offering the prior 

testimony proves the witness is unavailable, the testimony will 

be inadmissible if it violates the other party's right of 

confrontation. See, e.g., Jones v. Commonwealth, 22 Va. App. 

46, 52, 467 S.E.2d 841, 844 (1996). 

 Two recognized bases for establishing the requisite 

unavailability of a witness are (1) that "'[t]he declarant is 

absent from the state and the party is unable to obtain the 

declarant's deposition'" and (2) that "'[t]he party has been 

unable by diligent inquiry to locate the declarant.'" Doan, 15 

Va. App. at 101, 422 S.E.2d at 406 (quoting Charles E. Friend, 

The Law of Evidence in Virginia § 231 (3d ed. 1988)). "[D]ue 

diligence requires, at a minimum, that a party attempt to 

subpoena the witness or provide a reasonable explanation why a 

subpoena was not issued[, by providing, for example,] evidence 

that . . . the witness is . . . beyond the reach of the court." 

McDonnough v. Commonwealth, 25 Va. App. 120, 129, 486 S.E.2d 

570, 574 (1997). 

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. Id. at 127, 486 S.E.2d 

at 573. "[T]he 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 

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appeal." Burton v. Oldfield, 195 Va. 544, 550, 79 S.E.2d 660, 

665 (1954). 

The Commonwealth concedes appellant preserved for appeal 

the confrontation issue but contends he failed to preserve the 

due diligence issue. As set out above, the Commonwealth, as the 

party offering the prior testimony into evidence, bore the 

burden of proving the witnesses' unavailability, which included

proof that it used due diligence to attempt to locate those 

witnesses. Here, the Commonwealth argued the witnesses were 

unavailable, and the trial court expressly discussed and 

considered the issue of the witnesses' unavailability and the 

Commonwealth's efforts to locate them. In light of the 

Commonwealth's and trial court's statements, appellant's 

opposition to the admission of the prior testimony implicitly 

challenged the Commonwealth's evidence to prove unavailability 

and due diligence and, therefore, preserved these issues for 

appeal in a general sense. However, as discussed more fully 

below, appellant failed to provide the factual predicate 

necessary to permit the trial court to rule properly on the 

issue of availability of Anne and Sheree Cook for trial and, 

thus, failed to preserve for appeal the only viable objections 

to the admission of their testimony. 

The evidence, viewed in the light most favorable to the 

Commonwealth, established that both Regina Hannah and Officer 

Mark Drennan lived out-of-state at the time of the second trial. 

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As set out above, one of the bases for concluding a witness is 

unavailable and permitting the admission of that witness' prior 

testimony is that "'[t]he declarant [witness] is absent from the 

state and the party is unable to obtain the declarant's 

deposition.'" Doan, 15 Va. App. at 101, 422 S.E.2d at 406 

(quoting Friend, supra, § 231) (emphasis added). 

Assuming without deciding the Commonwealth did not attempt 

to obtain Hannah's or Drennan's deposition for introduction at 

appellant's second trial, we hold that such an effort was 

unnecessary under the facts of this case. Both witnesses had 

already testified under oath, subject to full cross-examination 

by appellant. Hannah had testified by deposition in 

anticipation of her departure from the state prior to 

appellant's first trial. Similarly, Drennan had already 

testified under oath in appellant's first trial for the same 

offenses. The record contained no evidence that their 

testifying a second time was likely to uncover relevant facts 

not addressed in their original testimony. Thus, the trial 

court did not commit reversible error in admitting the prior 

deposition testimony of Hannah and the prior trial testimony of 

Officer Drennan based on the absence of those witnesses from the 

state. 

As to the remaining witnesses, none of whom were alleged to 

have moved out-of-state, the issue, for each witness for whom 

appellant presented a proper factual predicate, is whether the 

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Commonwealth "'[was] unable by diligent inquiry to locate the 

declarant [witness].'" Id. (quoting Friend, supra, § 231) 

(emphasis added). 

The record established that the Commonwealth had a subpoena 

issued for Exxon service station owner Michael T. Smith at his 

business address. We hold that issuance of a subpoena for Smith 

at his business address, the only address for him which appeared 

in the record, constituted "a good faith, reasonable effort" to 

locate Smith, see McDonnough, 25 Va. App. at 129, 486 S.E.2d at 

574, and the return of the subpoena "NOT FOUND" was sufficient 

to prove Smith was unavailable. 

As to the testimony of Department of Motor Vehicles (DMV) 

employee Carolyn Garrett, appellant argued that the Commonwealth 

did not subpoena Garrett for the second trial, and the 

Commonwealth offered no evidence that Garrett was beyond the 

reach of the court. The trial court agreed the record contained 

no subpoena for Garrett and noted, as a result, that "there is 

no evidence that [Garrett] was not available." Thus, in 

convicting appellant on retrial, the court did not consider 

Garrett's testimony.1

 1

 Even without Garrett's testimony, the trial court's 

admission of appellant's DMV records to prove appellant's license 

was suspended on February 7, 1998 was not error. See Code 

§§ 46.2-215, 46.2-383, 46.2-395; see also Smoot v. Commonwealth, 

18 Va. App. 562, 565-66, 445 S.E.2d 688, 690 (1994) (discussing 

official documents exception to hearsay rule); Ingram v. 

Commonwealth, 1 Va. App. 335, 337-38, 338 S.E.2d 657, 658 (1986) 

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As to Anne Cook, the record contains no indication that the 

Commonwealth attempted to subpoena her for the second trial and 

no indication that attempting to subpoena her would have been 

fruitless. However, the record also contains no indication that 

appellant preserved this argument for appeal, see Rule 5A:18, 

because he did not bring to the trial court's attention the 

absence of a subpoena in the record for Anne Cook. If appellant 

had presented this argument to the trial court, the Commonwealth 

would have had an opportunity to offer evidence showing it 

exercised due diligence in attempting to secure Anne Cook's 

presence for trial. If the Commonwealth had failed to offer 

such evidence, we presume the trial court would have ruled 

correctly, as it did in the case of Carolyn Garrett, that the 

Commonwealth failed to prove unavailability because it did not 

take steps to have a subpoena issued. Thus, we hold that 

appellant waived his right to challenge any error in admitting 

Anne Cook's prior testimony by failing to bring to the trial 

court's attention the absence of a subpoena for her. 

Appellant similarly failed to preserve for appeal any 

viable claim that Sheree Cook's prior testimony should not have 

been admitted because the Commonwealth failed to prove she was 

unavailable for the second trial. The trial court said the 

record contained two subpoenas for Sheree Cook for the second 

 

(discussing authentication of DMV records and citing Code 

§ 46.1-34.1, now Code § 46.2-215). 

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trial, one which was posted and another which was returned "Not 

Found." Although the trial court's observations about the 

existence of two subpoenas are not supported by the record, 

appellant failed to bring this fact to the attention of the 

trial court.2 Thus, in the absence of a specific objection from 

appellant, evidence that a subpoena issued to Sheree Cook was 

returned "Not Found," as was the case with witness Michael 

Smith, was sufficient to prove Sheree Cook was unavailable for 

the second trial. 

Appellant contends that even as to the witnesses for whom 

the evidence established unavailability, the admission of their 

prior testimony nevertheless violated his right of 

confrontation. We disagree. "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 

 2

 The record contains only one subpoena issued for Sheree 

Cook for the second trial, which indicates it was served by 

posting. A witness' failure to appear following service of a 

subpoena by posting, without more, is insufficient to prove 

unavailability because it leaves open the question of whether 

the witness received the subpoena and failed to appear, was 

detained on the way to court, or was truly unavailable in the 

sense that the Commonwealth was "'unable by diligent inquiry to 

locate [the witness].'" Doan, 15 Va. App. at 101, 422 S.E.2d at 

406 (quoting Friend, supra, § 231). However, appellant's 

counsel failed to bring to the trial court's attention the fact 

that Cook was served only by posting and, thus, failed to 

preserve this argument for appeal. Appellant's counsel also 

failed to argue that the Commonwealth should have attempted to 

subpoena Sheree Cook at Church's Fried Chicken, her place of 

employment at the time of the first trial and where it had 

successfully obtained personal service on her for the first 

trial. 

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an adversary judiciary proceeding . . . at which the accused had 

an adequate opportunity to cross-examine the witness on the 

issues which . . . develop at trial." Jones, 22 Va. App. at 52, 

467 S.E.2d at 844; see Mancusi v. Stubbs, 408 U.S. 204, 216, 92 

S. Ct. 2308, 2314, 33 L. Ed. 2d 293 (1972) (holding 

Confrontation Clause not violated by introduction on retrial of 

transcript of testimony of then-unavailable witness given at 

defendant's first trial nine years earlier); Fisher v. 

Commonwealth, 217 Va. 808, 812, 232 S.E.2d 798, 801 (1977) 

(discussing Mancusi and observation in Pointer v. Texas, 380 

U.S. 400, 407, 85 S. Ct. 1065, 1069, 13 L. Ed. 2d 923 (1965), 

that presence of counsel and opportunity for full 

cross-examination were highly relevant in determining whether 

prior testimony of unavailable witness was admissible). 

Here, appellant was represented by counsel in the original 

trial and continues to be represented by the same attorney on 

appeal. In the pretrial deposition and at the first trial, 

appellant's attorney ably cross-examined the Commonwealth's 

witnesses and attempted to impeach the credibility of the only 

witness who could place appellant in the stolen car on the date 

and time in question. The offenses on retrial were identical to 

those in the first trial. Thus, the evidence supports the trial 

court's implicit ruling that the introduction of the prior 

testimony did not violate appellant's right of confrontation. 

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II. 

For these reasons, we hold that the admission of the 

testimony of an assistant Commonwealth's attorney was not error 

under the facts of this case. We also hold that, to the extent 

appellant preserved such arguments for appeal, the evidence 

supported the trial court's admission into evidence of the 

challenged deposition and trial testimony of the witnesses 

proved to be unavailable for appellant's second trial. 

Therefore, we affirm appellant's convictions. 

Affirmed. 

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