Petition for Writ of Certiorari — Schneider v. Virginia (No. 06-600)

eme Court, U.S.

No.____gg.¢ QQ OCT 27 2006

OFFICE OF THE CLERK

In The

Supreme Court of the Anited States

¢

CHRISTOPHER PAUL SCHNEIDER,

Petitioner,

we

COMMONWEALTH OF VIRGINIA,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Virginia

+

PETITION FOR WRIT OF CERTIORARI

+

KEVIN E. MARTINGAYLE, ESQUIRE

VSB # 33865

STALLINGS & BISCHOFF, P.C.

2101 Parks Avenue, Suite 801

Post Office Box 1687

Virginia Beach, VA 23451

(737) 422-4700

(757) 428-6982 (Facsimile)

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the admission of Christi Schneider’s preliminary

hearing testimony violate Petitioner’s Sixth Amendment

right to confront the witnesses against him?

ii

LIST OF PARTIES

The petitioner is Christopher Paul Schneider, who

was convicted of rape in violation of Va. Code Ann. § 18.2-

61 (1999). The respondent is the Commonwealth of Vir-

ginia.

iil

TABLE OF CONTENTS

Page

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ae a iihicicidiiinihcciieentbinesndsctecvicaiintinnpcabiniecemnneidncwenaiin 1

CONSTITUTIONAL PROVISION INVOLVED ............... 2

STATEMENT OF THE CASE.....ccccccosssscsrscccceccssererssscesese 2

REASONS WHY THE WRIT SHOULD BEGRANTED... 5

I. The Admission of Christi Schneider’s prelimi-

nary hearing testimony violated Petitioner’s

Sixth Amendment right to confront the wit-

SOIT CIE TI vicitcscdessncevicinteetineunicaceidinaresves 5

A. The nature and scope of preliminary hear-

ings do not allow for the full and fair cross

examination necessary to satisfy the re-

quirements of the Confrontation Clause..... 6

B. Since Crawford was decided, a split has

emerged among the states regarding

whether preliminary hearing testimony

satisfies Crawford’s requirement of cross

I sciscnbesenessctcsavcssiiticnssacineiinesisinnns 9

C. Christi was not “unavailable” to testify at

NS iiiscdittndninvadaitodennnasctucdnetielticeinintcddnincilaenianes 11

D. The Court should adopt a uniform s‘an-

dard for determining when a witness is

PUT wibisnsdncsiecesutiiaictesetnbinadibtoisensnees 14

Fe ae aicicsitsiss divsihosiens van nsienasuniaelahiuccedounesven tenth 15

iv

TABLE OF AUTHORITIES

Page

CASES

Barber v. Page, 390 U.S. 719 (1968) .............c000008 5, 6, 11, 14

California v. Green, 399 U.S. 149 (1970)..........cccccseesesseveees 6

Crawford v. Washington, 541 U.S. 36 (2004)............. passim

Longshore v. Commonwealth, 530 S.E.2d 146 (Va.

OD assistant sniesibciebinktesaiinicntisinsabinacaniidues Shia tidbentvsdaucedeemeliéiaes 11

Maryland v. Craig, 497 U.S. 836 RE 13

Mattox v. United States, 156 U.S. 237 (1895)............... 6, 14

Ohio v. Roberts, 448 U.S. 56 (1980) ..........ceeeesessseeseeseeeeees 9

People v. Fry, 92 P.8d 970 (Colo. 2004)... eeeeeeeee 7,10

Schneider v. Commonwealth, 625 S.E.2d 688 (Va.

Se SU, EE Bitar ertsaccitehccensrnsentindestoipiandensierummmmnieindie; 11

State v. Dunn, 359 N.W.2d 151 (Wis. 1984)... eeeeseeeeee 10

State v. Henderson, 136 P.3d 1005 (N.M. Ct. App. |

EE iincsichccnadatennsadinicssicdsidiacanniameasquedaetmabanniataribiadnias 10, 11

State v. Stuart, 695 N.W.2d 259 (Wis. 2005) ............. 7,9, 10

United States v. Oliver, 626 F.2d 254 (2d Cir. 1980) ........ 12

VIRGINIA CODE

SIRO soiciss soknccsetsdsevavipteidicennaseooteedintdiviaveetieeneabaieaaas 2

DFT pccescsrsszescssnspncssvxsimnossidernrsisciessinsnrstantemonmnieins 12

RULES OF THE VIRGINIA SUPREME COURT

TABLE OF AUTHORITIES — Continued

UNITED STATES CONSTITUTION

TLE CCIE DART ITO T TN ROE 1, 2,5

OTHER AUTHORITY

AE Ut UIT viicisksditiedinatidubhdaiieninnscaadibindandediieeeiaiemmumeniaats }

PE” “TION FOR WRIT OF CERTIORARI

Chrisi. ..ier Paul Schneider (hereinafter “Schneider”

or “Petitioner”) respectfully petitions this Court for a writ

of certiorari to review the judgment of the Court of Ap-

peals of Virginia, which held that Schneider’s Sixth

Amendment right to confront the witnesses against him

was not violated by the introduction at trial of the pre-

liminary hearing testimony of his accuser, Christi Schnei-

der (hereinafter “Christi”).

¢

OPINIONS BELOW

The Court of Appeals of Virginia held that Petitioner’s

Sixth Amendment right to confront the witnesses against

him was not violated by admitting the preliminary hearing

testimony of Christi Schneider at trial. The court’s opinion

is reprinted in the Appendix at App. 1. By order dated

August 1, 2006, the Supreme Court of Virginia refused

Schneider’s petition for appeal. That order is reprinted in

the Appendix at App. 14.

®

JURISDICTION

The order of the Supreme Court of Virginia refusing

Schneider’s petition for appeal was entered on August 1,

2006. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257.

2

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution of the

United States provides in relevant part that “[iJn all

criminal prosecutions, the accused shall enjoy the right . . .

to be confronted with the witnesses against him|.]”

+

STATEMENT OF THE CASE

Christopher Paul Schneider was charged with one

_ count of rape in violation of Va. Code Ann. § 18.2-61 (1999).

On October 3, 2002, a preliminary hearing was held in the

Juvenile and Domestic Relations District Court of the City

of Virginia Beach. At the hearing, the Commonwealth

called Christi Schneider, the accuser and Schneider’s

stepdaughter, as its only witness. Christi was sworn in

and proceeded to testify regarding the alleged rape.

Defense counsel was allowed to cross examine Christi.

After considering the evidence, the court certified the case.

Preliminary Hearing Transcript (P/H Tr.) at 19:4.

A bench trial was held on December 3, 2002, in the

Circuit Court of the City of Virginia Beach. The Common-

wealth called Christi as its first witness. Trial Transcript

(T. Tr.) at 15:1-3. She was sworn in and answered several

questions regarding her name, age, and background. T. Tr.

at 15:1-16:4. However, when questioned about the rape

allegation, Christi refused to testify. She stated that she

would not testify because “I cannot handle it mentally, I

don’t think I’m capable of handling it.” T. Tr. at 17:17-18.

Christi explained that “[iJt’s stressful, and I just — it’s just

hard; and I’m not going to do it.” T. Tr. at 17:20-21. When

asked why she couldn’t handle the stress, Christi responded

° “fijt’s because I’m just going through a lot of stuff right

now, and this is just one thing I cannot handle and — .” T.

Tr. at 18:1-3. Elaborating on her statement that she was

“going through a lot of stuff right now,” Christi testified

about living without her mom and brother, living in a new

home with someone she had not known for a long time,

and attending a new school. T. Tr. at 18:4-19:12. She

admitted to being hospitalized for mental health issues

when she was nine but denied having been diagnosed with

any stress-related disorders. T. Tr. at 20:21-21:5.

The Commonwealth asked the trial court to order

Christi to testify, which it did. T. Tr. at 22:18-19. However,

Christi again refused. T. Tr. at 22:19-20. Immediately

thereafter, the Commonwealth, obviously aware before

trial that Christi was going to refuse to testify, moved the

court to declare Christi unavailable and to admit her prior

testimony from the preliminary hearing. T. Tr. at 23:10-23.

The Commonwealth stated:

Your Honor, at this point the Commonwealth is

going to request the court to declare Miss

Schneider’s testimony unavailable. She has made

it clear that despite the court order, she refuses

to testify. The Commonwealth has done every-

thing possible. We have gotten her here. I have

met with her in advance. I have explained, as the

court could see from her testimony, ... what the

consequences of not testifying about her stepfa-

ther’s actions would be; and yet she still contin-

ues to refuse.

T. Tr. at 22-23:9. The Commonwealth then referred the

trial court to various Virginia Supreme Court opinions

which it argued supported its assertion that Christi should

be declared unavailable and that her preliminary hearing

testimony be admitted. T. Tr. at 23:10-24:1. Defense

4

counsel, caught completely off guard, stated that “[t]hese

are the [cases] that [the Commonwealth] gave me this

morning, Your Honor. I have not reviewed these, but I

would like to respond to what she stated.” T. Tr. at 24:2-5.

He continued: “[S]ince the preliminary hearing, a lot of

stuff has come to light that I need to have answered by the

witness and — with reference to her direct examination.

And since she is not testifying, I - there’s many more

things that can come out that was not known to me at the

time of preliminary hearing that I need to be able to ask;

and I do not feel that it would be fair to the defendant to

allow that testimony of the preliminary hearing in by itself

without being able to cross-examine her.” T. Tr. at 24:11-

23.

The court recessed in order to review the preliminary

hearing transcript and to allow defense counsel to review

the cases relied upon by the Commonwealth. T. Tr. at 25:6-

11. The court ordered that Christi be placed in lockup

while the court was in recess in order to “give her a chance

to reflect upon what she’s done.” T. Tr. at 25:20-21. Ap-

proximately 30 minutes later, the court reconvened.

Christi still refused to testify. T. Tr. at 26:13-23.

Defense counsel again objected to admitting the

preliminary hearing testimony noting that Christi ap-

peared to be very strong-willed, did not appear fearful of

anybody or anything, and had apparently just decided not

to testify. T. Tr. at 27:15-19. He also continued to argue

that “it’s very important that I be able to cross-examine

her.” He explained: “We have contradictory evidence as to

what she’s told in the preliminary hearing, and I need to

be able to impeach her and to ask her questions about

other people’s statements as to what she’s told them; and I

can’t do that — or it’s going to be difficult to do that without

5

her testifying today.” T. Tr. at 27:23-28:5. Nevertheless, the

trial court granted the Commonwealth’s motion to declare

Christi unavailable and admitted the transcript of

Christi’s testimony from the preliminary hearing. T. Tr. at

29:1-21.

The court found Schneider guilty of rape. The record

reflects that the court’s finding of guilt was based almost

exclusively on Christi’s testimony. T. Tr. at 114:12-15. At

Schneider’s sentencing hearing, defense counsel moved the

court to set aside the finding of guilt on the ground that

admitting Christi’s testimony from the preliminary hear-

ing violated Schneider’s Sixth Amendment right to con-

front the witnesses against him. Sentencing Transcript (S.

Tr.) at 4:1-8. That motion was denied and Schneider was

sentenced to twenty-five years in prison, all but twelve

years suspended, supervised probation for twenty-five

years, and ordered to report as a registered sex offender

pursuant to the Code of Virginia. S. Tr. at 76:19-77:11.

4

REASONS WHY THE WRIT SHOULD BE GRANTED

I. The admission of Christi Schneider’s prelimi-

: nary hearing testimony violated Petitioner’s

Sixth Amendment right to confront the wit-

nesses against him.

The Confrontation Clause of the Sixth Amendment to

the U.S. Constitution provides that “[iJn all criminal

prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him.” This right

“is basically a trial right.” Barber v. Page, 390 U.S. 719,

725 (1968). Testimonial statements of witnesses who do

not appear at trial are barred unless “that witness was

6

unavailable to testify, and the defendant had a prior

opportunity for cross-examination.” Crawford v. Washing-

ton, 541 U.S. 36, 68 (2004).

A. The nature and scope of preliminary hear-

ings do not allow for the full and fair cross

examination necessary to satisfy the re-

quirements of the Confrontation Clause.

The “primary object” of the Confrontation Clause is to

prevent evidence from being used against a defendant

without the defendant having the opportunity to cross

examine the witness. Cross examination serves “not only

... [to test] the recollection and [to sift] the conscience of

the witness, but [to compel] him to stand face to face with

the jury in order that they may look at him, and judge by

his demeanor upon the stand the manner in which he

gives his testimony whether he is worthy of belief.” Mattox

uv. United States, 156 U.S. 237, 242-43 (1895). It is, as the

Court has stated, “the greatest legal engine ever invented

for the discovery of truth.” California v. Green, 399 U.S.

149, 158 (1970).

The Court has recognized that “[a] preliminary hear-

ing is ordinarily a much less searching exploration into the

merits of a case than a trial, simply because its function is

the more limited one of determining whether probable

cause exists to hold the accused for trial.” Barber, 390 U.S.

at 725, Additionally, one of the main objectives of the

Confrontation Clause, to allow the fact finder to observe

the witness and to weigh his or her demeanor, see, Mattox,

156 U.S. at 242-43, is entirely absent in a preliminary

hearing which is typically held in a different court and

before a different judge than the actual trial. For these

reasons, some state courts have excluded preliminary

hearing testimony even when the witness is unavailable to

testify at trial. See, e.g., State v. Stuart, 695 N.W.2d 259,

265 (Wis. 2005) (finding that because cross examination at

preliminary hearings tests “plausibility, not credibility,”

the opportunity to cross examine at that time does not

satisfy Crawford); People v. Fry, 92 P.3d 970 (Colo. 2004)

(finding that because of the limited nature of preliminary

hearings in Colorado, the d fendant does not enjoy ade-

quate motive or opportunity to cross examine during

preliminary hearings).

Moreover, in states such as Virginia that allow for

extremely limited discovery prior to the preliminary

hearing, the ability to cross examine a witness at trial

rather than during the preliminary hearing is particularly

important. In Virginia, the only discovery available to an

accused prior to the preliminary hearing is the ability to

hear, inspect, or copy “any relevant written or recorded

statements made by the accused ... to any law enforce-

ment officer,” and “any criminal record of the accused.”

Rule 7C:5 of the Rules of the Supreme Court of Virginia.

The result of this limited discovery is that the preliminary

hearing is often the first look a defendant, and his attor-

ney, has at the evidence against him or even the true

nature of the case. Therefore, any opportunity a defendant

or defense counsel may have to cross examine a witness at

that time is handicapped by an obvious inability to pre-

pare adequately for that examination. Following the

preliminary hearing, however, the defendant is entitled to

expanded, albeit still quite limited, discovery. See, Rule

3A:11 of the Rules of the Supreme Court of Virginia.

Further, information garnered during the preliminary

hearing, through the discovery process, or independent

investigation often yields evidence which calls into question

the evidence presented against the defendant during the

preliminary hearing. That new information may include

evidence which discredits testimony given by witnesses

during the preliminary hearing. Because that information

was not known to the defendant or his attorney during the

preliminary hearing, the witness could not be cross exam-

ined on that point. If the preliminary hearing testimony is

admitted as evidence at trial, the witness can avoid cross

examination on those points altogether. Not only is the

defendant deprived of his opportunity to confront the

witness regarding the new information, the fact finder is

deprived of its opportunity to observe the witness’s de-

meanor when presented with the new information; there-

fore, the fact finder cannot adequately ascertain the

witness's credibility.

This concern is clearly illustrated in the present case.

Following the preliminary hearing, defense counsel be-

came aware of evidence that called into question Christi’s

testimony during the preliminary hearing. It was revealed

that Christi had made similar accusations against Peti-

tioner and another man three times before but had re-

canted each time. T. Tr. at 46:6-9, 91:24-92:7. Further,

defense counsel uncovered a witness, Sheila Richards,

Christi’s mother’s best friend, who testified at trial that

Christi bragged to her two weeks after the alleged rape

that she had “set him up” and that she had voluntarily

performed oral sex on the Petitioner on the night of the

alleged rape. T. Tr. at 84:8-14, 87:6-14, 88:17-22. Although

this testimony was presented at trial, by refusing to

testify, Christi avoided ever having to answer any ques-

tions regarding this new evidence and avoided having her

prior testimony impeached. The trier of fact, in this case

the judge, did not have the opportunity to observe Christi’s

demeanor when faced with this new evidence and there-

fore could not properly judge her credibility.

Finally, allowing preliminary hearing testimony to be

admitted in lieu of actual testimony at trial sets a danger-

ous precedent ripe for abuse. Witnesses, or even some

unscrupulous prosecutors, may use this as a trial strategy

in order to avoid having prior testimony impeached or

having to answer to evidence uncovered after the prelimi-

nary hearing. At a minimum, the Court should limit the

admissibility of preliminary hearing testimony to cases

where the witness, due to death or some other meritorious

reason, is truly unavailable at trial. Such testimony

should be barred in cases, like the present one, where the

witness simply refuses to testify.

B. Since Crawford was decided, a split has

emerged among the states regarding whether

preliminary hearing testimony satisfies

Crawford’s requirement of cross examination.

In Crawford, the Court interpreted the Confrontation

Clause to require a showing of unavailability of the wit-

ness and a prior opportunity for cross examination. Since

that decision, a split has emerged among the courts of

various states as to whether testimony given during a

preliminary hearing satisfies Crawford’s, and the Confron-

tation Clause’s, requirement of cross examination.

The Supreme Court of Wisconsin considered the issue

in State v. Stuart, 695 N.W.2d 259 (Wis. 2005). The Court

reversed its prior holding in the case, decided under the

reliability analysis of Ohio v. Roberts, 448 U.S. 56 (1980),

and found that the defendant’s cross examination of the

witness during the preliminary hearing was insufficient to

10

satisfy his right of confrontation as interpreted by Craw-

ford. Id. at 265. The Court based its decision on the

limited nature of cross examination during preliminary

hearings. Jd. at 265-66. The Court noted that “the prelimi-

nary hearing ‘is intended to be a summary proceeding to

determine essential or basic facts’ relating to probable

cause, net. a ‘full evidentiary trial on the issue of guilt

beyond a reasonable doubt.’” Jd. at 266 (quoting State v.

Dunn, 359 N.W.2d 151 (Wis. 1984)). The Court further

neted that any cross examination attacking the “general

trustworthiness” of a witness is “off limits” during a

preliminary hearing. Jd. (citations omitted). Similarly,

since the Court’s decision in Crawford, the Supreme Court

of Colorado has affirmed previous decisions of that court

holding that cross examination during preliminary hear-

ings does not satisfy the requirements of the Confronta-

tion Clause. People v. Fry, 92 P.3d 970 (Colo. 2004).

However, in State v. Henderson, 136 P.3d 1005 (N.M.

Ct. App. 2006), the Court of Appeals of New Mexico de-

clined to follow the example set by Wisconsin and Colo-

rado.' The court concluded that “the admission of a

‘testimonial’ statement given by a witness under oath in a

preliminary hearing does not violate the Confrontation

Clause under Crawford where: (1) the witness is unavail-

able; and (2) the defendant had a prior opportunity to

cross examine.” Jd. at 1010. Because the defendant was

given an opportunity to cross examine the statements

" The Court of Appeals stated that it believed its decision was “not

contrary” to those decisions because both Stuart and Fry relied upon

the limited nature of the applicable procedural rules governing

preliminary hearing testimony to find that Crawford had not been

satisfied. Jd.

11

made during the preliminary hearing, that testimony

satisfied Crawford and the Confrontation Clause. Jd. at

1010-11. This is essentially the same rationale relied upon

by the Court of Appeals of Virginia in the present case.

The court found that Virginia law regarding the admissi-

bility of preliminary hearing testimony has always

required both unavailability and an opportunity for cross

examination. Schneider v. Commonwealth, 625 S.E.2d

688, 613 (Va. Ct. App. 2006) (citing Longshore v. Com-

monwealth, 530 S.E.2d 146, 146 (Va. 2000)). Thus, under

both New Mexico and Virginia law, Crawford is satisfied

so long as the defendant had the opportunity for cross

examination during the preliminary hearing. Neither

state requires a showing that the opportunity for cross

examination was adequate.

Because there is a split among the states regarding

whether Crawford precludes the admission of preliminary

hearing testimony, guidance is needed from the Court in

order to resolve this conflict. The Court should resolve the

conflict by holding that cross examination during prelimi-

nary hearings does not satisfy the Confrontation Clause’s

cross examination requirement as outlined in Crawford.

C. Christi was not “unavailable” to testify at

trial.

Even assuming that cross examination of a witness

during a preliminary hearing satisfies the requirements of

the Confrontation Clause, that testimony is only admissi-

ble when that witness is unavailable to testify at trial.

Barber, 390 U.S. at 725-26. Christi Schneider was not

“unavailable” at trial. Not only did she appear, but she

answered several questions regarding her name, age, and

12

background. It was only after the questioning turned to

her allegations against the defendant that she refused to

testify.

The court had various tools, including contempt, that

it could have used to convince Christi to testify. Jt used

none of them. Holding reluctant witnesses in contempt is

perhaps the strongest tool a court has at its disposal for

compelling a witness to comply with the court’s order to

testify. Witnesses who refuse to comply with an order to

_ testify can be held in custody until they agree to testify.

See, Va. Code Ann. § 18.2-457 (1999) (authorizing impris-

onment upon finding of contempt). The trial court in this

case merely asked Christi to testify and, when she refused,

placed her in solitary confinement for approximately 30

minutes. The court did not even inform Christi of the

possible consequences of refusing to testify. Christi testi-

fied that she believed the worst that would happen is that

she would be fined or sent to a juvenile detention center. T.

Tr. at 21:14-23. She did not indicate that she knew the

length of incarceration she may face if found in contempt.

Virginia Code § 18.2-457 allowed the court to confine

Christi for up to ten days upon a finding that she was in

contempt. If she still refused to testify, she could have been

found in contempt again and been confined for an addi-

tional period. Faced with this knowledge, it is possible

that Christi would have agreed to testify. See, United

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

that “[iJt 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”). Further, it is possible

that had Christi actually been placed in custody for any

13

meaningful period of time she would have reconsidered

her refusal to testify.

The court had other options, short of incarceration,

that it could have used to compel Christi to testify. Had

the court inquired further into the reasons for Christi’s

refusal, it is possible that some arrangement could have

been made that would have alleviated Christi’s concerns

and may have satisfied Petitioner’s constitutional rights.

While not all substitutes for face-to-face confrontation will

suffice, this Court has approved, for example, the use of

testimony via close circuit television in cases involving

child victims of abuse. Maryland v. Craig, 497 U.S. 836

(1990). Although Christi, who was seventeen at the time of

trial, is not a young child, Craig is instructive because it

illustrates one option available to courts when a witness

cannot testify because a face-to-face confrontation with the

accused would be too traumatic.

Christi Schneider was not “unavailable” to testify. She

was present during the trial and even took the stand and

answered questions regarding her name, age, and back-

ground. She refused to testify, however, regarding the

allegations she had made against the petitioner. The

record reflects that Christi’s decision was her own and

that it was not the result of any threats to her safety or

the assertion of any privilege. Rather, her refusal was

based entirely on her belief that testifying was “stressful,

and I just — it’s just hard; and I’m not going to do it.” The

court did little to inquire as to the reasons for her refusal

or to compel her testimony. Instead, the court merely

accepted Christi’s decision and found her to be unavail-

able. Prior to making this determination, however, the

court should have explored the various options available to

it including holding Christi in contempt or, if Christi could

14

not be convinced to testify under normal conditions,

fashioning an arrangement that would have permitted

Christi to testify while preserving Petitioner’s rights

to confrontation and cross examination of the witnesses

against him.

D. The Court should adopt a uniform standard

for determining when a witness is “unavail-

able.”

Although the Court has held that the Confrontation

Clause demands a showing of unavailability before prior

testimonial statements can be admitted at trial, Crawford,

541 U.S. at 68, it has never stated the standard by which

courts should determine unavailability. The Court appears

to have based its determination of unavailability on a

case-by-case basis, never actually articulating a governing

standard. See, Mattox, 156 U.S. at 244 (unavailability

established where witness died prior to trial); Barber, 390

U.S. at 724-25 (unavailability not established where

prosecutor made no “good faith effort” to obtain incarcer-

ated prisoner’s presence at trial). The Court should clarify

exactly how courts are to determine unavailability and

should adopt a clear standard for making that determina-

tion.

15

CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

CHRISTOPHER PAUL SCHNEIDER

Of Counsel

October 27, 2006

App. 1

Schneider v. Commonwealth,

47 Va. App. 609, 625 S.E.2d 688 (2006)

IN THE COURT OF APPEALS OF VIRGINIA

ARGUED AT CHESAPEAKE, VIRGINIA

CHRISTOPHER PAUL SCHNEIDER

v.

COMMONWEALTH OF VIRGINIA

Record No. 0628-05-1

Decided: February 7, 2006*

Present: Judges Elder, Clements and Haley

FROM THE CIRCUIT COURT OF THE CITY OF

VIRGINIA BEACH, A. Bonwill Shockley, Judge

Affirmed.

COUNSEL

Brandon H. Zeigler (Wolcott Rivers Gates, on brief),

for appellant.

Susan L. Parrish, Assistant Attorney General (Judith

Williams Jagdmann, Attorney General; Denise C. Ander-

son, Assistant Attorney General, on brief), for appellee.

OPINION

HALEY, J. — The sole issue here for determination is

whether the trial court erred in finding a witness was

“unavailable” and in consequently admitting into evidence

a transcript of her preliminary hearing testimony at trial.

Finding no error, we affirm appellant’s conviction of a

violation of Code § 18.2-61.

* [Editor’s Note: Appealed to the Supreme Court of Virginia]

App. 2

) #

Appellant was charged with raping his stepdaughter,

C.S., in violation of Code § 18.2-61. At the October 3, 2002

preliminary hearing in the juvenile and domestic relations

district court, the Commonwealth called only C.S. to

testify. She stated that on April 25, 2002, while her mother

was away from the house on an errand, appellant called

her upstairs to his bedroom, fondled her, ordered her to

take off all of her clothes, and had sexual intercourse with

her. Because this pattern had occurred in the past, C.S.

testified, she made efforts to preserve physical evidence of

the encounter. She then ran to a neighbor’s house and

called her therapist, who called the police. After the

Commonwealth completed its direct examination, appel-

lant’s counsel (who represented appellant at both the

preliminary hearing and at trial) cross-examined C.S. Two

rounds of re-direct and re-cross examination took place

during the preliminary hearing. At the close of the hear-

ing, the court certified the case.

During appellant’s trial on December 3, 2002, the

Commonwealth called C.S. to testify. C.S. was age 17 at

the time. She answered background questions but refused

.o testify further once the topic turned to appellant. The

Commonwealth reminded her that she was under a

subpoena, but she still would not talk about the rape. C.S.

said she did not “feel comfortable testifying,” that she

could not “handle it mentally,” and that she was “going

through a lot of stuff right now.” After exploring her

mental diagnoses and living situation, the Commonwealth

asked if C.S. was aware of the consequences of refusing to

testify. C.S. responded that possible punishments included

fines and being sent to a detention home, but still would

not testify.

App. 3

At this point, the Commonwealth asked the trial court

to order C.S. to testify. The trial court impressed upon her

the seriousness of the charge, and then ordered her to

testify. C.S. declined to follow the order, and the Common-

wealth immediately moved to admit the preliminary

hearing testimony into evidence. The court recessed to

consider the Commonwealth’s arguments, review the case

law, and allow appellant’s counsel to consider counter-

arguments. During this approximately half hour recess,

C.S. was placed in the lockup in an attempt to change her

mind. After the break, C.S. still refused to testify, and both

sides declined to ask her questions. After hearing the

additional argument of counsel, the trial court found that

C.S. was unavailable and admitted her preliminary

hearing testimony.

The bench trial continued, including the testimony of

Connie Andrews, a sexual assault nurse examiner. An-

drews collected a sample of a dried substance from C.S.’s

stomach, which was the evidence C.S. preserved from the

encounter. An analysis of the sample revealed it to be

appellant’s semen.

Appellant’s defense consisted of only one witness:

Sheila Richards, C.S.’s guardian at the time of trial.

Richards testified about a conversation she had with C.S.

about two weeks after the incident in question. Richards

said that C.S. talked of having “set him [appellant] up”

and gave a different explanation for the origin of the

semen sample.

After the defense rested, the trial court found appel-

lant guilty of rape. Appellant appeals from this conviction.

App. 4

Il.

Appellant contends that the trial court’s admission of

C.S.’s preliminary hearing testimony violated his Sixth

Amendment right to confront witnesses against him.

In Crawford v. Washington, 541 U.S. 36 (2004), the

United States Supreme Court recently addressed the

conditions necessary, under the Sixth Amendment’s

Confrontation Clause, for the admission at trial of “testi-

monial” evidence given outside of trial. The Court held

that two conditions were necessary to satisfy constitu-

tional demands: the unavailability of the witness and the

defendant’s prior opportunity to cross-examine the wit-

ness. Jd. at 68. Although stated in dicta, Crawford clearly

considers preliminary hearing testimony to be “testimo-

nial.” Jd. For preliminary hearing testimony to be admis-

sible, then, it must meet Crawford’s dual requirements of

unavailability and opportunity for cross-examination.

More specifically, the Virginia Supreme Court has

stated:

The preliminary hearing testimony of a witness

who is absent at a subsequent criminal trial may

be admitted into evidence if the following condi-

tions are satisfied: (1) that the witness is pres-

ently 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 testi-

mony of the unavailable witness can state the

subject matter of the unavailable witness’s tes-

timony with clarity and in detail; and (4) that

the party against whom the prior testimony is

offered was present, and represented by counsel,

App. 5

at the preliminary hearing and was afforded the

opportunity of cross-examination when the wit-

ness testified at the preliminary hearing.

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

146, 146 (2000) (citing Shifflett v. Commonwealth, 218 Va.

25, 28, 235 S.E.2d 316, 318 (1977)).

Thus, our law regarding the admissibility of prelimi-

nary hearing testimony has always required unavailability

and an opportunity for cross-examination and complies

with the new requirements of Crawford without altera-

tion.

Within the test set forth by Longshore, appellant

challenges only the finding of unavailability.’

iil,

We review a trial court’s determination that a witness

is unavailable in the context of admitting preliminary

hearing testimony under an abuse of discretion standard.

Sapp v. Commonwealth, 263 Va. 415, 423, 559 S.E.2d 645,

649 (2002).

In Sapp, the Supreme Court of Virginia set forth the

minimum requirements for declaring a witness who is

present but unwilling to testify to be unavailable. The

party offering the hearsay testimony “must demonstrate a

‘sufficient reason’” for the witness’ unavailability. Jd. at

425, 559 S.E.2d at 650 (quoting Wise Terminal Co. v.

McCormick, 107 Va. 376, 379, 58 S.E. 584, 585 (1907)). The

' At oral argument, appellant admitted that he had a

prior opportunity to cross-examine the witness.

App. 6

trial court must question the witness on why he will not

testify. Jd. The court should at least order the witness to

testify, and “[a]lthough 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.” Jd.

The Supreme Court found in Sapp that the trial court

abused its discretion in declaring the witnesses to be

unavailable. There, two witnesses refused to testify, citing

“maybe one or two verbal threats” and “just hearing talk

here and there in the streets.” Jd. at 420-21, 559 S.E.2d at

647-48. The trial court told the two reluctant witnesses

that it would not force them to testify despite the vague-

ness of these threats and even assured one witness that he

would not “be put in jail for refusing to testify.” Jd. at 420-

21, 559 S.E.2d at 648. Finding the witnesses to be un-

available, the trial court then admitted their preliminary

hearing testimony.

The Supreme Court reversed the decision, however,

stating that only “[ulpon persistent refusal to testify

despite judicial pressures and an order to testify ... [may]

the testimony of a witness [ ] be declared unavailable.” Id.

at 427, 559 S.E.2d at 651. By assuring one witness “that

nothing would happen to him as a result of his refusal {9

testify and that his prior testumony would be utilized,” the

trial court had removed “any semblance of judicial pres-

sure.” Jd. at 426-27, 559 S.E.2d at 651.

In this instance, the trial court did order C.S. to

testify and placed sufficient judicial pressure upon her to

justify the decision declaring her unavailable. Before

involving the trial court, the Commonwealth’s attorney

questioned her as to why she did not feel comfortable

App. 7

testifying and outlined her mental situation resulting in

the decision. The Commonwealth reminded her she was

under subpoena and made certain she knew the potential

consequences of her actions. Appellant argues that be-

cause the trial court did not affirm the witness’ statement

of the potential consequences or independently state the

consequences, the witness was improperly declared un-

available. However, we decline to hold that a trial court

abuses its discretion in failing to affirm a witness’ correct

understanding of the situation.

The trial court stressed the importance of the proceed-

ings to C.S. and ordered her to testify. After she again

refused to testify, the court placed her in the “lockup”

while it considered whether to declare her unavailable.

After half an hour, the court again attempted to elicit the

testimony and again was rebuffed.

Although the trial court declined to use its contempt

power, this does not constitute an abuse of discretion

under Sapp. The trial court met the requirement of Sapp

when it ordered C.S. to testify. Further, the court placed

C.S. in its “lockup” for at least half an hour, probably the

strongest step short of contempt the court could take.

Moreover, unlike the trial court in Sapp, the court here

never acted to remove the “judicial pressure” to testify.

Specifically, the court did not tell C.S. that it would not

force her to testify, assure her she would not be punished if

she continued to refuse to testify, or reveal that it could

admit her preliminary hearing testimony. Because we will

not require a trial court to use its contempt power to

compel testimony, neither will we reverse a court when it

has taken other reasonable actions to pressure a witness.

Here, the trial court never acted to remove the “judicial

pressure” that the Supreme Court has emphasized. Thus,

App. 8

the trial court did not abuse its discretion when it found

C.S.’s testimony was unavailable.

IV.

Having concluded the trial court did not abuse its

discretion in finding C.S.’s testimony to be unavailable, we

hold the preliminary hearing testimony was properly

admitted at trial. Accordingly, we affirm appellant’s

conviction.

Affirmed.

App. 9

VIRGINIA: IN THE CIRCUIT COURT

OF THE CITY OF VIRGINIA BEACH

HEARING DATE ~ : 12-03-02

JUDGE : SHOCKLEY

COMMONWEALTH OF VIRGINIA

vs. CASE NO.: CR02-3990

CHRISTOPHER PAUL SCHNEIDER, DEFENDANT

SSN: 089-56-3009

DOB: 07-23-62

INDICTMENT FOR: OFFENSE DATE:

Rape Divers days 4-25-99-4-25-02

Court Reporter: Fiduciary Reporting, Inc.

This day came J. Shirey, attorney for the Common-

wealth, the defendant, in person, and L. Cardon, attorney

for the defendant.

NOT GUILTY PLEA

The defendant plead NOT GUILTY. With the consent

of the defendant, concurred in by the court and the attor-

ney for the Commonwealth, the court heard and deter-

mined the case without a jury.

The Commonwealth called the victim in this case as

its first witness of the presentation of their evidence. The

witness having refused to give testimony, was remanded

temporarily into the custody of the sheriff. With the

witness again refusing to testify, the court took no action

and released the witness into the custody of her guardian.

The Commonwzalth’s evidence was presented.

App. 10

At the conclusion of the Commonwealth’s evidence,

the Court denied defendant’s motion to strike the Com-

monwealth’s evidence.

The defendant’s evidence was presented.

After hearing all the evidence, the Court found the

defendant GUILTY of Rape, as charged, in violation of

§ 18.2-61.

REFERRAL TO PROBATION

The Court directed the probation officer of this Court

to prepare a presentence report.

The Court continued further proceedings to 02-10-03

for sentencing.

The Clerk shall send a copy of this Order to the:

Probation Office of this Court.

Sheriff of this City.

ENTERED: __ 12/5/02

/s/ A. Bonwill Shockley

JUDGE

App. 11

VIRGINIA: IN THE CIRCUIT COURT

OF VIRGINIA BEACH

HEARING DATE ~ : MAY 28, 2003

JUDGE : SHOCKLEY

COMMONWEALTH OF VIRGINIA

vs

CHRISTOPHER PAUL SCHNEIDER, DEFENDANT

SSN : 089-56-3009

DOB : 07-23-62

SEX : MALE

SENTENCING ORDER — CASE NO.: CR02-3990

Attorney for the Commonwealth: J. Shirey

Attorney for the Defendant: M. Stallings & B. Ziegler

Court Reporter: Fiduciary Reporting, Inc.

The defendant was present and represented by counsel.

On December 3, 2002, the defendant was found

GUILTY of the following offense(s):

OFFENSE (F/M) DATE SECTION

RAPE (F) DIVERS DAYS FROM 18.2-61

04-25-99 THRU 04-25-02

The presentence report was considered and filed as

part of the record in accordance with the provisions of

Code § 19.2-299,

The Court denied defendant’s motion to set aside the

verdict and for a new hearing.

The Court reviewed and considered the applicable

discretionary sentencing guidelines and made the com-

pleted worksheet a part of the record of the case pursuant

to the provisions of Code § 192-298.01.

App. 12

Before pronouncing the sentence, the Court inquired if

the defendant desired to make a statement and if the

defendant desired to advance any reason why judgment

should not be pronounced.

The Court SENTENCES the defendant to:

Incarceration in the Virginia Department of Corrections

for the term of: 25 years.

The Court SUSPENDS 13 years of the sentence

conditioned on the following:

1. Good behavior. The defendant shall be of good

behavior for 25 years.

2. Supervised Probation. The defendant is placed .

on Supervised Probation and the defendant shall

comply with all the rules and requirements set by

the Probation Officer. Probation shall include sex-

ual offender abuse counseling and/or testing as

prescribed by the Probation Officer. LENGTH OF

PROBATION: Until released by the Probation Of-

ficer. PROBATION TO BEGIN: Upon release from

confinement.

3. Other. The defendant shall register as a Sex

Offender.

4. SOAP. The defendant shall participate in the

Sex Offender Awareness Program (SOAP), if

available, while housed at the Virginia Beach

Correctional Center; however defendant shall be

released from custody upon completion of jail

sentence and/or transport to DOC facility.

Distribution of Copies. The Clerk shall send a copy of

this order to the: Sheriff

Director of the Department of Corrections

Probation Office of this Court

App. 13

Payment after release. $ 805.00 Costs. Payment to be

made after defendant’s release from confinement.

Credit provision when time to be served. The defen-

dant shall be given credit for time spent in confinement

while awaiting trial pursuant to § 53.1-187.

Substance abuse screening and assessment for

felony convictions pursuant to § 18.2-251.01 If the

defendant has been convicted of a felony offense, not a

capital offense, committed on or after January 1, 2000, the

defendant shall complete any substance abuse screening, .

assessment, testing, and treatment as directed by the

Department of Corrections as part of the defendant’s

sentence. The defendant is subject to payment of al] or

part of the costs of the program or treatment, excluding

the costs of the screening and assessment, based upon the

defendant’s ability to pay.

The court recommends that the defendant be

screened to serve the active period of incarceration

at a DOC facility that provides Sex Offender Treat-

ment.

ENTERED: __ 5/30/03

/s/_A. Bonwill Shockley

JUDGE

Clerk: vbh

App. 14

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Tuesday the 1st

day of August, 2006.

Christopher Paul Schneider, Appellant,

against Record No. 060470

Court of Appeals No. 0628-05-1

Commonwealth of Virginia, Appellee.

From the Court of Appeals of Virginia

Upon review of the record in this case and considera-

tion of the argument submitted in support of the granting

of an appeal, the Court refuses the petition for appeal.

The Circuit Court of the City of Virginia Beach shall

allow court-appointed counsel! the fee set forth below and

also counsel’s necessary direct out-of-pocket expenses. And

it is ordered that the Commonwealth recover of the appel-

lant the costs in this Court and in the courts below.

Costs due the Commonwealth

by appellant in Supreme

Court of Virginia:

Attorney’s fee $950.00 plus costs and expenses

A Copy,

Teste:

Patricia L. Harrington, Clerk

By: /s/ Douglas B. Robelen

Deputy Clerk

App. 15

VIRGINIA:

In the Court of Appeals of Virginia on Tuesday the 7th

day of February, 2006.

Christopher Paul] Schneider, Appellant,

against Record No. 0628-05-1

Circuit Court No. CR02-3990

Commonwealth of Virginia, Appellee.

From the Circuit Court of the City of Virginia Beach

Before Judges Elder, Clements and Haley

For reasons stated in writing and filed with the

record, the Court is of opinion that there is no error in the

judgment appealed from. Accordingly, the judgment is

affirmed. The appellant shall pay to the Commonwealth of

Virginia thirty dollars damages.

It is ordered that the trial court allow counsel for the

appellant a fee of $725 for services rendered the appellant

on this appeal, in addition to counsel’s costs and necessary

direct out-of-pocket expenses.

The Commonwealth shall recover of the appellant the

amount paid court-appointed counsel to represent him in

this proceeding, counsel’s costs and necessary direct out-of-

pocket expenses, and the fees and costs to be assessed by

the clerk of this Court and the clerk of the trial court.

This order shal] be certified to the trial court.

Costs due the Commonwealth by

appellant in Court of Appeals of Virginia:

Attorney’s fee § $725.00 plus costs and expenses

App. 16

A Copy,

Teste:

Cynthia J. McCoy, Clerk

By: /s/ Marty Ring

Deputy Clerk