Paden v. Commonwealth
In Paden v. Commonwealth, 259 Va. 595, 529 S.E.2d 792 (2000), the Supreme Court of Virginia addressed the denial of codefendant Paden's petition for appeal by this Court.
Paden asserted Burton's testimony regarding Dixon's statement was inadmissible hearsay. See id. at 596, 529 S.E.2d at 793. The Supreme Court agreed, stating:
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 was unavailable to testify, and the trial court erred in admitting the hearsay testimony of Detective Burton. Paden, 259 Va. at 596-97, 529 S.E.2d at 793.