Petition for Writ of Certiorari — Charles Albert Massey, III, Petitioner v. Virginia

No. _______

In The

Supreme Court of the United States

CHARLES ALBERT MASSEY, III,

v.

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition for Writ of Certiorari

to the Supreme Court of Virginia

PETITION FOR WRIT OF CERTIORARI

Jonathan P. Sheldon, Esq. (VSB # 66726)

Sheldon, Flood & Haywood, PLC

10621 Jones Street, Suite 301-A

Fairfax, Virginia 22030

Tel. (703) 691-8410

Fax (703) 251-0757

Email: jsheldon@SFHdefense.com

Counsel of Record for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

i

QUESTIONS PRESENTED

The victim testified at a preliminary hearing

that her long-time boyfriend, Massey, had raped and

abducted her. During cross-examination she feigned

loss of memory, and the court did not allow Massey

to cross-examine her for bias. A short time later the

victim died of an unrelated cause. After the

preliminary hearing Brady and other impeachment

evidence was discovered, including a prior false

allegation to law enforcement that Massey had

assaulted her. The prosecution also added a new

charge. At trial, the victim’s preliminary hearing

testimony was read to the jury over Massey’s

objection.

The question presented is: Where a victim’s

testimony accusing petitioner of abducting and

raping her was elicited at a preliminary hearing, at

which petitioner was prevented from crossexamining regarding bias, false statements, and new

charges, does the Confrontation Clause permit the

victim’s testimony to be read to the jury if the victim

is unavailable?

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

THE OPINIONS BELOW ............................................1

JURISDICTIONAL STATEMENT .............................1

CONSTITUTIONAL PROVISIONS INVOLVED .......1

STATEMENT OF THE CASE .....................................2

SUMMARY OF ARGUMENT......................................9

REASONS FOR GRANTING THE PETITION ........ 10

ARGUMENT .............................................................. 11

CONCLUSION ........................................................... 19

APPENDIX:

Supreme Court of Virginia Order Denying Petition

For Appeal, filed June 16, 2017 .......................... App. 1

Court of Appeals of Virginia Opinion, filed

December 13, 2016 .............................................. App. 2

Supreme Court of Virginia Order Denying

Rehearing, filed

October 5, 2017.................................................. App. 36

iii

TABLE OF AUTHORITIES

FEDERAL CASES

Brady v. Maryland, 373 U.S. 83 (1963).......................5

California v. Green, 399 U.S. 149 (1970) .................. 18

Crawford v. Washington, 541 U.S. 36

(2004) ........................................................ 11, 15, 17, 19

Ohio v. Clark, 135 S. Ct. 2173 (2015) ........................ 17

Ohio v. Roberts, 448 U.S. 56 (1980) ........................... 18

Pointer v. Texas, 380 U.S. 400 (1965) .................. 17, 18

United States v. Caramadre, 882 F. Supp. 2d 295

(D.R.I. 2012) ............................................................... 15

United States v. Waddell, No. CR415-095, 2016

U.S. Dist. LEXIS 8670 (S.D. Ga. Jan. 26, 2016) ....... 15

STATE CASES

Brown v. Commonwealth, 230 Va. 310 (1985) .......... 13

Commonwealth v. Johnson, 758 A.2d 166 (Pa. App.

2000) ........................................................................... 16

Jones v. Commonwealth, 22 Va. App. 46 (Va. App.

1996) ........................................................................... 13

iv

Massey v. Commonwealth, 67 Va. App. 108 (Va. App.

2016) .............................................................................9

People v. Fry, 92 P.3d 970, 979-80 (Colo. 2004) ........ 15

People v. Torres, 962 N.E.2d 919 (Ill. 2012) .............. 16

State v. Anthony, 448 A.2d 744, 755-56 (R.I. 1982) .. 17

State v. Ray, 123 Ariz. 171, 598 P.2d 990 (Ariz.,

1979) ........................................................................... 17

State v. Stuart, 279 Wis.2d 659, 695 N.W.2d 259

(2005) .......................................................................... 17

Turner v. Commonwealth, 284 Va. 198 (2012) ......... 13

STATE STATUTES

Va. Code § 18.2-48 ........................................................4

FEDERAL STATUTES

28 U.S.C. §§ 1257(a) .....................................................1

CONSTITUTIONAL PROVISIONS AND RULES

U.S. Const. amend. VI .................................................1

U.S. Const. amend. XIV ...............................................1

1

THE OPINIONS BELOW

The opinion of the Court of Appeals, App. 2, is

published at 67 Va. App. 108 (2016). The order

denying Massey’s petition for appeal, App. 1, is

unpublished. The October 6, 2017, order denying

Massey’s petition for rehearing is unpublished. App.

36.

JURISDICTION

The Virginia Supreme Court denied Massey’s

petition for appeal on June 16, 2017. App. 1.

Massey filed a timely petition for rehearing, which

the Virginia Supreme Court denied on October 6,

2017. App. 36. On December 30, 2017, the Chief

Justice extended the time to file this petition to and

including February 5, 2018.

This Court has

jurisdiction under 28 U.S.C. §§ 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

The United States

Amendment provides:

Constitution’s

Sixth

“In all criminal prosecutions, the

accused shall enjoy the right to . . . be

confronted with the witnesses against

him . . . .”

The United States Constitution’s Fourteenth

Amendment provides, in part:

2

“No State shall . . . deprive any person

of life, liberty, or property, without due

process of law. . . .”

STATEMENT OF THE CASE

Petitioner Massey was arrested on September

4, 2013, for two counts of rape and one count of

simple abduction of his ex-fiancée Portia Eastham

(“Eastham”). Joint Appendix (hereinafter “JA”)1 at

1-6.

The preliminary hearing was held on

November 1, 2013. Because of the “probable cause”

standard the only evidence presented at the hearing

was the testimony of Eastham.

Eastham’s Preliminary Hearing Testimony

Eastham testified that she broke off her

engagement with Massey in April 2013. JA 224.

Afterward Eastham and Massey had sexual contact

on over a dozen occasions leading up to Massey’s

arrest on September 4, 2013. JA 249-57. Massey

called her and came to her apartment to talk about

his grandmother on the evening of September 3,

2013. JA 258. After some conversation, Eastham

agreed that Massey could sleep on the couch. Later,

Eastham asked Massey to leave. Massey refused

and the two began fighting. JA 225-27. According to

Eastham, Massey dragged her to her bed and raped

her twice over the course of several hours. JA 229-

The state court joint appendix was filed in the Virginia

Court of Appeals after it granted Massey’s petition for

appeal. The court later denied Massey’s appeal on the

merits.

1

3

34. They stayed in the apartment until morning.

Eastham changed her clothes and got ready to go to

work until Massey stopped her and forced her to

come to his home in Alexandria instead. During the

car ride, Eastham made no attempt to escape

although the car stopped at several traffic lights. JA

265. Once at Massey’s house in Alexandria (outside

of Fairfax County), Eastham “chose to sit on the

sofa” in the living room and played with a cat while

Massey moved about the house. JA 266. She was

not physically restrained and did not attempt to

escape.

After more arguing Massey bound

Eastham’s wrists and ankles with duct tape,

wrapped a blanket around her, put her in the car

and drove Eastham to her father’s house.2 JA 23740. Massey called Eastham’s father to tell him that

he was dropping her off. JA 240. Massey dropped

Eastham in the neighborhood of her father’s house

and Eastham kissed Massey goodbye. She entered

her father’s home and she “told him what happened.”

JA 240-41.

During cross-examination, the prosecution

objected at least eight times on relevance grounds,

arguing twice that because the standard of a

preliminary hearing is probable cause the couple’s

prior history and the witness’s credibility is not

relevant. JA 247, 249, 251 (twice), 254-55, 270-71 &

273. The trial court sustained several prosecution

objections based on relevance, including to a bias

question about whether Massey and Eastham’s

father were continuing to work together to get

It is undisputed that this event happened outside of

Fairfax County and was not the basis for any criminal

charges.

2

4

Eastham into an alcohol treatment program against

her wishes. JA 270. Massey’s theory at trial was

that Eastham fabricated the rape accusations to

disrupt the joint effort of Massey and her father to

get her into an inpatient treatment center. JA 291,

1099-1119.

Eastham also claimed that she was unable to

answer many questions on cross-examination

because of lack of memory, including when, whether

and how often she had sex with Massey after she

broke off their engagement, although she admitted

to staying with Massey for fifteen out of the thirty

days in August. JA 250, 253, 257. The court noted

that the standard was only probable cause and found

probable cause to certify the charges to the grand

jury. JA 273.

Pre-Trial Events and Proceedings

Nine days after the preliminary hearing

Eastham tragically died of an alcohol and drug

overdose.

JA 981, 986.

Subsequently, the

Commonwealth obtained an indictment from the

grand jury that included the three charges from the

preliminary hearing, plus an additional charge of

abduction with intent to defile, Va. Code § 18.2-48.

JA 7-8.

In the course of discovery, after the

preliminary hearing, the Commonwealth provided a

wealth of information to Massey. The discovery

included material that indicated that Eastham had

perjured herself during her testimony. In a text

message shortly after the preliminary hearing

Eastham described her testimony:

5

I kinda wish you could've seen the way I

handled the cross examination with his

retarded lawyer, I gave him nothing. And

it was awesome. . . . He was throwing all

sorts of stupid shit out at me about me

being in a bar on August 13th and whatnot

and when I respond with I don't recall he

couldn't do anything with it[.]

During her testimony Eastham denied

allowing Massey to photograph her nude, but the

discovery material included a posed nude photo of

Eastham looking into the camera that was in her

possession. Further, phone records showed that

contrary to her testimony, Eastham called Massey

on the evening of the offense.

Included in the discovery was material

required to be turned over pursuant to Brady v.

Maryland, 373 U.S. 83 (1963). Police reports showed

that Eastham had lied to the police on at least two

occasions during their investigation of this case and

prior to the preliminary hearing. On one occasion

Eastham told the investigating detectives that

Massey had been violent with her in June 2013, and

that the Alexandria police had responded to the

incident. The investigating detectives obtained a

copy of the Alexandria Police incident report, which

showed that Eastham had told the Alexandria police

that Massey had not been violent on that occasion.

(Emphasis added). The report also indicated that

Eastham was drunk and off her medication. JA 9293.

Another police report indicated that after the

alleged rape Eastham falsely told the police that she

was on the lease to Massey’s home in order to gain

6

entry. Eastham then took property from the home

including valuable jewelry. She later admitted to

the police that her statement was not true. JA 97.

Massey moved to exclude from trial Eastham’s

preliminary hearing testimony. App. 7 & n.3. On

February 21, 2014, the trial court granted the

motion, determining that the preliminary hearing

judge’s ruling clearly barred Massey from further

inquiry into bias -- the efforts by Eastham’s father

and Massey to get Eastham into treatment and

Eastham’s resistance to, and resentment of, those

efforts. JA 322-25.

After the Commonwealth’s failed interlocutory

appeal, the Commonwealth moved the trial court for

reconsideration. Although the trial court reiterated

its conclusion that the preliminary hearing judge

had cut off cross-examination about motive to

fabricate, JA 359, it reversed its ruling and held that

Eastham’s prior testimony was admissible: “looking

at the extraordinary lengths that our appellate

courts will go in just some remarkable decisions, I

don’t really doubt that our Appellate Court and our

Supreme Court is going to say that this is

admissible.” JA 368-69.

Trial

Trial commenced on January 26, 2015.

Eastham’s friend read her prior testimony to the

jury. JA 821-67. A Sexual Assault Nurse Examiner

performed a sexual assault examination on Eastham

September 4, the day after the alleged assault. App.

8. The nurse testified in detail about the numerous

bruises and abrasions Eastham had over significant

portions of her body. She testified that her

7

examination revealed a reddened area on the hymen,

indicating a fresh injury. She agreed that the injury

was consistent with a report of "forcible penile

vaginal penetration." The nurse also testified

regarding Eastham’s report to her which was largely

consistent with Eastham’s testimony. App. 8-9.

Patricia Taylor, an acquaintance of Massey,

testified that she spoke with Massey at 12:30 p.m. on

September 4. App. 8. Massey told Taylor that he

thought he needed help. He told her that he and

Eastham had fought and that he "kind of made her

have sex with [him]." Taylor asked if he had sexually

assaulted Eastham, and his response was "Yes." He

also told Taylor he had bound Eastham with tape,

wrapped her in a blanket, and driven her to her

father's home. App. 8.

Massey testified at trial and contradicted most

of Eastham’s claims. JA 1091-1172, 1179-1280.

Specifically, Massey testified that Eastham invited

him to her apartment, JA 1118-20, that they had a

physical altercation followed by consensual “make

up” sex, JA 1124-29, App. 9, and that Eastham

voluntarily accompanied Massey to his home in the

City of Alexandria so that Massey could pack a bag

and go to his parents’ home in Mississippi. JA 113538. Massey admitted that while at his home he

decided to abduct Eastham with the intent to take

her to her home, and that he did so by binding her

hands and feet with tape, wrapping her in a blanket,

and putting her in his car. Massey explained his

conversation with Taylor and admitted he told

Taylor that he “kind of” made Eastham had sex with

her but described it as a commentary on their

relationship and denied that he intended that he

meant he raped her. JA 1145-46.

8

In closing argument, the Commonwealth took

advantage of Massey’s inability to impeach Eastham

by cross-examination, telling the jury:

You were told at the outset – counsel

abandoned that apparently . . . But you

were told she lied, she didn’t tell the

truth. You were told in the opening,

mind you, you were promised by the

defense you will see she lied because

they’re collaborating to try to get her

into treatment. And that’s what you

were told. . . . what was produced was

irrelevant information about her past. .

. . She swore to tell the truth, subjected

herself to cross-examination and told

you the truth.

JA 1405-06; 1414.

The jury found Massey guilty of all four

counts and recommended a sentence of 20 years on

each of the two the abduction charges and 21 years

for each of the rape charges. JA 217.

After the trial, Massey retained new counsel

and filed post-trial motions arguing for a new trial or

dismissal of the case because the Commonwealth

violated Brady by failing to disclose the

impeachment material relating to Eastham prior to

the preliminary hearing and violated his

Confrontation Clause rights. JA 61-89, 1455-87; see

also JA 78-85, 128-42, 152-54, 1467, 1480, 1495. The

trial court set aside the simple abduction conviction

on double jeopardy grounds and denied all other

defense motions. JA 1520-21. The Court sentenced

9

Massey to 62 years in prison, with 10 years

suspended. JA 216-17.

Massey appealed his convictions raising

primarily the claim that his Confrontation Clause

rights were violated by the admission of Eastham’s

testimony at trial. Massey v. Commonwealth, 67 Va.

App. 108 (2016), App. 13-14. The Court of Appeals

reached the merits of Massey’s claims and ruled in

relevant part that 1) the suppressed material was

not Brady material, App. 18, and 2) Massey’s

Confrontation Clause rights were not violated

because his opportunity to cross-examine Eastham

at the preliminary hearing was sufficient. App. 23.

The Supreme Court of Virginia denied Massey’s

petition for appeal, App. 1, and his petition for

rehearing, App. 36.

SUMMARY OF ARGUMENT

Massey’s Confrontation Clause rights were

violated when Eastham’s testimony was read to the

jury despite Massey’s inadequate opportunity to

cross-examine Eastham. Massey’s opportunity to

cross-examine Eastham was not sufficient because 1)

the preliminary hearing judge limited the scope of

cross-examination; 2) the Commonwealth failed to

disclose Brady material until after the preliminary

hearing; 3) other impeachment evidence was

discovered after the preliminary hearing; 4)

Eastham’s

feigned

memory

rendered

her

“unavailable” for cross-examination; and 5) Massey

had no opportunity to cross-examine Eastham on the

new charge of abduction with intent to defile.

Because numerous state and federal courts across

the country differ on when the “opportunity” to

10

cross-examine is sufficient for Confrontation Clause

purposes, this Court should grant certiorari to

provide guidance to the lower courts.

REASONS FOR GRANTING THE PETITION

The lower courts need guidance on

when the “opportunity” to crossexamine a witness is sufficient so that

the later admission of their testimony

does not violate the Confrontation

Clause.

There exists a conflict between some state

courts of last resort and some United States courts of

appeal regarding the Confrontation Clause issue in

this case: What opportunity to cross-examine a

witness at a preliminary hearing is sufficient so that

the witness’s testimony is later admissible at trial

when the witness is unavailable.

This is a substantial issue for which this

Court should provide guidance, as it concerns

substantial rights of the accused and arises

frequently and different courts are reaching different

results. In this case, resolution of these issues

determines whether Massey will receive, in effect, a

life sentence based on testimony that would not have

survived scrutiny had Massey been afforded

meaningful cross-examination.

In addition, in this case the Commonwealth’s

test for distinguishing between a matter that is

“material” or “collateral” for the purpose of

impeachment under Brady or Giglio was clearly

wrong. The test used by Virginia says that to be

regarded as “material” for Brady or Giglio purposes,

11

the impeaching material must have an “intimate

connection with the main fact,” and that “[e]vidence

which cannot be used for any purpose other than for

impeachment . . . is certainly collateral to the main

issue.” App. 17. It cannot be true that if evidence

cannot be used for any purpose other than to

impeach, it is not material for purposes of Brady and

Giglio. Indeed, the Commonwealth’s test eviscerates

Giglio.

ARGUMENT

Massey was denied a meaningful

opportunity to cross-examine Eastham

at the preliminary hearing, and as a

result, the trial court violated his

Confrontation Clause rights when it

admitted her testimony against him at

trial.

To admit a witness’s preliminary hearing

testimony at trial, the defendant must have had an

opportunity for meaningful cross-examination of that

witness. Crawford v. Washington, 541 U.S. 36, 59

(2004). This case presents this Court with an

opportunity to provide guidance to the lower courts

on the scope or definition of “meaningful” crossexamination.

1. Massey’s opportunity to cross-examine

Eastham at the preliminary hearing was

insufficient.

The preliminary hearing judge limited

Massey’s cross-examination regarding Massey’s

12

efforts to get Eastham into rehabilitation, which was

the basis of Massey’s trial defense, and which related

to bias and motive to fabricate. The trial court

definitively found that the preliminary hearing

judge’s ruling cut off any further questions about

this topic. JA 322-23, 359. The preliminary hearing

judge also sustained the Commonwealth’s objections

to any questions about events prior to April 2013,

which the Commonwealth asserted could only relate

to Eastham’s credibility.

JA 248.

The lower

evidentiary standard of “probable cause” was the

basis for the court’s rulings.

Massey’s

opportunity

to

cross-examine

Eastham was also not meaningful because he crossexamined her without the benefit of undisclosed

Brady/Giglio

material

that

was

in

the

Commonwealth’s possession at the time of the crossexamination. It is undisputed that the police reports

existed prior to the preliminary hearing and were

not turned over to Massey until after the hearing.

JA 98, 105-08. Each report contained evidence that

Eastham made false accusations about Massey to

law enforcement. Of the most important was a false

allegation to law enforcement that Massey had

previously assaulted her, and a false allegation to

law enforcement that she was on Massey’s lease so

that she could take items from Massey’s residence.

Other significant evidence was discovered

after the preliminary hearing that could have been

used to cross-examine Eastham because it indicated

that she lied during her testimony about important

facts. Eastham lied when she testified regarding her

contact with Massey the night of September 3 and

failed to reveal, as later phone records showed, that

she had contacted him that night. She also lied

13

when she testified that she denied posing nude for

Massey in the weeks before the incident.

Massey’s

opportunity

to

cross-examine

Eastham was further severely limited because she

feigned loss of memory numerous times when trial

counsel asked her questions about a core issue: the

frequency of consensual sex between Eastham and

Massey in the days leading up to the alleged rape.

The day after Eastham testified under oath at the

preliminary hearing a least four times that she

“couldn’t recall,” she sent a text to a friend indicating

that her “I don’t recall” response was a strategy and

feigned.

A “[l]ack of memory relates to the capacity to

testify. Feigned lack of memory is nothing more than

refusal to testify.” Turner v. Commonwealth, 284 Va.

198, 207 (2012). When a witness appears in court but

cannot remember events, the “memory loss, whether

real or feigned, render[s the witness] unavailable.”

Jones v. Commonwealth, 22 Va. App. 46, 52 (1996).

“In these cases, the focus of the inquiry is not on the

unavailability of the witness, but the unavailability

of the testimony.” Id. Because Eastham feigned lack

of memory at the preliminary hearing she “refus[ed]

to testify” and thus was “unavailable” for crossexamination

at

the

preliminary

hearing.

Consequently, Massey was not allowed a sufficient

opportunity to confront Eastham at the preliminary

hearing.

Finally, at the preliminary hearing, the

Commonwealth proceeded on a theory of simple

abduction and rape. Any abduction that occurred

prior to or during the sexual conduct “merges” with a

rape offense. Brown v. Commonwealth, 230 Va. 310

(1985) (discussing merger of abduction and rape

14

offenses). Therefore, at the preliminary hearing,

defense counsel’s questions regarding abduction

were directed toward the time period after the sexual

conduct between Eastham and Massey concluded.

JA 258-73.

After the preliminary hearing the

prosecution charged Massey with the additional

offense of abduction with intent to defile.

By

contrast, the merger doctrine has no applicability to

abduction with intent to defile, which necessarily

occurs prior to and/or at the same time as the rape

offense. Defense counsel thus had no opportunity to

cross-examine Eastham regarding the charge of

abduction with intent to defile.

2. The state court in this case, and several

other courts, hold that all a defendant is due

in this situation is to be “afforded the

opportunity of cross-examination.”

In this case the Virginia Court of Appeals held

that because Massey was afforded the opportunity to

cross-examine Eastham, he received all he was due.

App. 23. The court found that the limitation of cross

examination by the preliminary hearing judge was

insignificant. That Massey was not prejudiced by

the Brady violation because the material was not

related to his guilt or innocence. App. 18-19. That

many witnesses have memory problems when they

testify, App. 28, and that Massey was able to get into

evidence the substance of the other evidence (the

phone records and nude picture) so the inability to

15

cross-examine Eastham on these matters was

irrelevant.3 App. 21.

Other courts have also held that the mere

opportunity to cross-examine is enough. In United

States v. Caramadre, 882 F. Supp. 2d 295, 301

(D.R.I. 2012), the court said, “the test is not whether

the defendant has been provided with an ideal crossexamination opportunity, . . . Crawford simply

requires an opportunity to cross-examine witnesses

testifying against the accused.” (Citing Crawford,

541 U.S. at 57); see also United States v. Waddell,

No. CR415-095, 2016 U.S. Dist. LEXIS 8670, at *24

& n.11 (S.D. Ga. Jan. 26, 2016) (same).

3 Indirect

rebuttal evidence cannot have the same

effect on a jury as answers to questions put directly

to the witness on cross-examination.

A skilled cross-examiner can confront a

dishonest witness, or a witness who is

mistaken, with questions that cause the

witness to see the corner he has painted

himself into and react in a way that permits

the jury to judge credibility from what it

hears and sees. Thus, a witness's testimony

on cross-examination may be much more

damning to the witness's credibility than any

sort of indirect evidence the defense can offer.

In sum, the opportunity for crossexamination is without equal as a tool in the

search for truth.

People v. Fry, 92 P.3d 970, 979-80 (Colo. 2004) (internal

citations omitted).

16

3. Numerous appellate courts in other states

have held that admission of prior testimony in

a situation like Massey’s violates the

Confrontation Clause.

In Commonwealth v. Johnson, 758 A.2d 166

(Pa. App. 2000), the court determined that certain

preliminary hearing testimony could not be admitted

at trial because Johnson had been denied a full and

fair cross-examination:

During the preliminary hearing,

Appellee's questioning of Ms. Thompson

about Ms. Hayes' relationship with

Douglas Hayes was unsuccessful

because the Commonwealth objected,

and the judge sustained the objections.

The court and the Commonwealth

precluded Appellee from this line of

cross-examination. We agree with the

lower court that the sustaining of the

Commonwealth's

objections

denied

Appellee a full and fair opportunity to

cross-examine Ms. Thompson regarding

Ms. Hayes' past relationships.

758 A.2d at 172-73.

In People v. Torres, 962 N.E.2d 919 (Ill. 2012),

the Illinois Supreme Court held that prior testimony

was improperly admitted in violation of the

Confrontation Clause because the state had not

disclosed “inconsistent statements Pena gave to

police” prior to the preliminary hearing, “statements

that counsel might have used to confront Pena and

17

see if further changes in Pena’s version of events

might be forthcoming.” Id. at 933. See also State v.

Ray, 123 Ariz. 171, 598 P.2d 990 (Ariz., 1979) (prior

testimony inadmissible because preliminary hearing

judge terminated defense questioning of witness

about relevant subject matter); State v. Anthony, 448

A.2d 744, 755-56 (R.I. 1982) (restriction of crossexamination regarding motive to fabricate during

preliminary hearing limited the substantive use of

the prior testimony at trial and rendered crossexamination inadequate to satisfy the Confrontation

Clause); State v. Stuart, 279 Wis.2d 659, 695 N.W.2d

259 (2005) (prior testimony inadmissible where

preliminary hearing judge refused to allow

defendant to inquire about witness’s pending

charges and motive to falsely testify).

4. This Court should provide guidance to the

lower courts on when the “opportunity” for

cross-examination is insufficient so that

admission of an unavailable witness’s

testimony violates the confrontation clause.

This Court has provided recent guidance to

lower courts on when a statement is “testimonial” for

the purposes of the confrontation clause. Crawford

v. Washington, 541 U.S. 36, 51 (2004); Ohio v. Clark,

135 S. Ct. 2173, 2181 (2015). But lower courts need

guidance on when an “opportunity” for crossexamination during prior testimony is so lacking as

to violate the confrontation clause.

In Pointer v. Texas, 380 U.S. 400 (1965), this

Court found that testimony of an unavailable

witness is inadmissible if the defendant was

deprived of a “complete and adequate” opportunity

18

for cross-examination. Id. at 407. This Court

explained that “certainly no one experienced in the

trial of lawsuits, would deny the value of crossexamination in exposing falsehood and bringing out

the truth in the trial of a criminal case.” Id. at 404.

Then in California v. Green, 399 U.S. 149

(1970), this Court acknowledged that admissibility of

prior testimony is conditioned upon the prior

declarant being “subject to full and effective crossexamination” because “cross-examination [is] the

greatest legal engine ever invented for the discovery

of truth.” (Emphasis added). Id. at 158. But in

Ohio v. Roberts, 448 U.S. 56 (1980) this Court

seemed to step-back the rhetoric from Pointer and

Green, explaining that “the Green opinion suggest

that the opportunity that the to cross-examine at

the preliminary hearing -- even absent actual crossexamination -- satisfies the Confrontation Clause.”

Id. at 70. And while this Court has given much

guidance on the meaning of “testimonial” in regard

to the Confrontation Clause, it has provided little

guidance over the last 40 years on the meaning of an

adequate “opportunity” to cross-examine a witness in

Confrontation Clause situations.

The jury would have likely evaluated

Eastham’s testimony differently had they been

allowed to observe her response and behavior when

confronted with her false statements to the police

about Massey. In short, Eastham’s credibility would

have been destroyed by the time the case came

before the jury, if Massey had been allowed a

meaningful cross-examination, that is, a crossexamination armed with the impeaching material to

which he was entitled. Instead, limitations on

counsel at the preliminary hearing, including the

19

Commonwealth’s

failure

to

disclose

the

impeachment evidence, resulted in Massey being

armed with the relatively impotent gesture of

pointing out inconsistences in Eastham’s prior

statements.

The condition necessary for allowing the

admission of an unavailable witness’s preliminary

hearing testimony is that the defendant have had an

opportunity for cross-examination. Crawford, supra.

This case is an excellent vehicle for this Court to

elucidate for the lower courts how meaningful that

opportunity to cross-examine must be.

Massey was denied the opportunity for

meaningful cross-examination for numerous reasons.

Most importantly, he was denied Brady/Giglio

material that he may have used effectively to

impeach Eastham. In addition, the judge who

presided at the preliminary hearing denied Massey’s

right to meaningful cross-examination by preventing

him from cross-examining on matters directly

bearing on Eastham’s credibility. Any of the abovementioned

impediments

to

Massey’s

crossexamination of Eastham at the preliminary hearing

was enough to deprive Massey of his Confrontation

Clause rights.

CONCLUSION

The petition for writ of certiorari should be

granted.

20

Respectfully submitted,

Jonathan P. Sheldon, Esq. (VSB # 66726)

Sheldon, Flood & Haywood, PLC

10621 Jones Street, Suite 301-A

Fairfax, Virginia 22030

Tel. (703) 691-8410

Fax (703) 251-0757

Email: jsheldon@SFHdefense.com