Paden v. Commonwealth

Present: 	Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
KARSENE PADEN
v. 	Record No. 991920 	OPINION BY JUSTICE ELIZABETH B. LACY
April 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of a criminal conviction, we consider
whether certain evidence was properly admitted by the trial
court.
Karsene Paden was charged with robbery at a Regal Cinema
Theater in Hampton. 	He was tried, along with two
codefendants, in a bench trial before the Circuit Court of the
City of Hampton. 	The trial court found Paden guilty of the
offenses charged and the Court of Appeals denied Paden's
petition for appeal by unpublished order. 	Paden v.
Commonwealth, Record No. 2567-98-1, May 5, 1999. 	We awarded
Paden an appeal.
Paden first objects to the admission into evidence of
testimony by Detective George Burton concerning a statement
made by Olivier D. Dixon, one of Paden's codefendants.
Detective Burton testified that Dixon told him that Paden "was
the first one to go up stairs" at the movie theater, that
Paden, accompanied by Antwan Kingsberry, was "going down the
hall with the mask on," that Dixon saw Kingsberry and Paden

putting money into a bag, and that before the group left the
theater, Paden gave Dixon $100. 	Paden argues that this
testimony was hearsay and thus inadmissible.
Paden acknowledges that Detective Burton's testimony
regarding Dixon's statement would have been admissible as an
exception to the hearsay rule if the Commonwealth had
established that Dixon was unavailable to testify, that the
declaration was against Dixon's penal interest, and that the
statement was reliable. 	Ellison v. Commonwealth, 219 Va. 404,
408, 247 S.E.2d 685, 688 (1978). 	However, Paden asserts that
the Commonwealth failed to establish any of these factors.
According to Paden, the Commonwealth did not establish
the first factor, Dixon's unavailability to testify, because
Dixon was present at trial and his attorney stated that Dixon
was prepared to testify. 	The Commonwealth argues that,
regardless of the representations made by Dixon's counsel,
Dixon was unavailable to testify because Dixon could not be
compelled to give evidence against himself and because the
decision whether to testify was personal to Dixon and not his
attorney.
The Commonwealth correctly recites the rights of
codefendant Dixon. 	Nevertheless, until Dixon asserted those
rights, he remained available to testify. 	Under these
circumstances, the Commonwealth failed to establish that Dixon
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was unavailable to testify, and the trial court therefore
erred in admitting the hearsay testimony of Detective Burton.
Id.; see also Atkins v. Commonwealth, 257 Va. 160, 176, 510
S.E.2d 445, 455 (1999)("Nor could the statement have been
admitted as being against penal interest, since Atkins, the
declarant, was not 'unavailable' to testify at trial, which is
a prerequisite to invoke that exception to the hearsay
rule."); Chandler v. Commonwealth, 249 Va. 270, 279 n.1, 455
S.E.2d 219, 224 n.1 (1995)("To be an admissible declaration
against penal interest, the statement must also be made by an
unavailable declarant.").
Paden also asserts that the trial court erred in
admitting a letter written by Paden to his brother,
codefendant Antwan Kingsberry, while both were in jail. 	The
letter, in pertinent part, stated:
[T]his is the deal. 	I'm going to need to know what
you told your lawyer about the case. 	Even though I
haven't seen my lawyer yet I know what I'm saying.
I going to deny every thing. 	If my lawyer asks me,
why would he involve my name, I'm going to say me &
him had an altercation about 8 or 9 months, meaning
he stole some money and a pager from me & haven't
liked each other since. 	As far as you and I, on the
day of the robbery, I saw you early that morning and
that was it. 	I was with Kashamere that day cause I
was suppose to baby sit for her. 	Yo, MAKE SURE you
tell me everything you told your lawyer . . .
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Paden objected to the admission of this letter asserting it
was not an admission or "statement against self interest." 	We
disagree.
This statement can be interpreted as an attempt by Paden
to establish an alibi through statements consistent with his
codefendant Kingsberry and, thereby, conceal his guilt.
Extra-judicial admissions that tend to show guilt, even if not
confessions, are admissible as party admissions. 	Prince v.
Commonwealth, 228 Va. 610, 613, 324 S.E.2d 660, 662 (1985).
Accordingly, the trial court did not err in admitting the
letter written by Paden into evidence.
For the error in admitting Dixon's statements, the order
of the Court of Appeals will be reversed and the conviction
will be vacated. 	The case will be remanded to the Court of
Appeals with direction that it be remanded to the Circuit
Court for a new trial if the Commonwealth be so advised.
Vacated, reversed and remanded.
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