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PRESENT:    Kinser, C.J., Lemons, Goodwyn, Millette and Mims,
JJ., and Lacy and Koontz, S.JJ.
MARIO LAMAR TURNER
OPINION BY
v.    Record No.  111563                                              JUSTICE WILLIAM C. MIMS
JUNE  7,  2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the circuit court
properly held that a witness was unavailable to testify under
the criteria established in Sapp v. Commonwealth,  263 Va.  415,
559 S.E.2d  645  (2002).
I.    BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Darnell Robinson was standing with a group of friends and
high school football teammates when he was shot several times
on the evening of September  12,  2009.    The group included
Robinson, Eric Poindexter, Ellis Butler  (“Ellis”), Josh Butler
(“Josh”), and Donnell Staton.    Police recovered a  9-millimeter
bullet and shell casing from the scene of the shooting.
Forensic analysis later established that they were fired from a
Ruger pistol recovered from the home of Mario Lamar Turner’s
grandmother.
Turner was subsequently indicted on one count each of
aggravated malicious wounding, in violation of Code  §  18.2-
51.2, and use of a firearm during an aggravated malicious
wounding, in violation of Code  §  18.2-53.1.    He was represented




at his preliminary hearing by Brian P. Keeley, though Keeley
subsequently withdrew and new counsel was substituted prior to
trial.    Turner was tried in a bench trial in the Circuit Court
of the City of Newport News on May  4,  2010.    At trial, Robinson
testified that the group encountered Turner, who spoke with
Poindexter,  15 to  20 minutes before the shooting.    Robinson
knew of Turner but did not have a personal acquaintance with
him.    Robinson did not see who shot him.    He did not remember
what Turner wore and did not remember seeing anyone with a gun.
Ellis testified that he too saw Turner that night.    Ellis
had only heard Turner’s name and had never seen Turner before
that night.    Ellis saw Turner reach into his pocket shortly
before shots rang out.    Ellis did not remember where Turner was
at the time of the shooting and was not sure what Turner had
pulled from his pocket.    On cross-examination, Turner
questioned Ellis about his statement to police on the night of
the shooting.    Ellis confirmed that he had told police both
that he could not identify the shooter and that he had not seen
Turner shoot Robinson.    Thereafter, during the course of
antagonistic questioning, Ellis said he had seen Turner shoot
Robinson:
Q:    I’m asking you did you see Mr. Turner shoot
Mr. Robinson?
A:    It’s possible.
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Q:                                                                Well, is it possible that you saw him or
                                                                  did you or did you not? It’s a yes or no
                                                                  question.
A:                                                                Yes.
Q:                                                                You saw him shoot him?
A:                                                                Yep.
Q:                                                                Did you see Mr. Turner with a gun?
A:                                                                What do you mean?
Q:                                                                Did you see him with a gun?
A:                                                                Yep.
Q:                                                                What kind of gun did he have?
A:                                                                I’m not sure.
Q:                                                                Well, you said you saw him with a gun.    Was
                                                                  it a big gun, old gun?    Was it a revolver,
                                                                  was it an automatic, what was it?
A:                                                                It was the kind that shoots.
                                                                  Josh also testified that someone walked by the group
                                                                  and greeted them, but he did not know the person and
                                                                  could not remember how the person was dressed:
Q:                                                                Do you remember what  [Turner] was wearing?
A:                                                                No, I don’t remember.
The Commonwealth established that Josh had given a
recorded statement to the police and provided him a copy of it.
He read the statement but said he still could not remember:
Q:    Do you remember what  [Turner] was wearing?
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A:    At this point I cannot tell you.    I don’t
remember.
Q:    Do you recall whether or not you saw anyone
with a gun?
A:    No, ma’am.
Q:    Do you recall whether or not you saw Mr.
Robinson being shot?
A:    No, ma’am.
At the conclusion of Josh’s testimony, the circuit court
questioned him about his loss of memory:
Q:                                                         All right.    Let me understand, young man.
After reviewing the statement that you gave
to the police detective[,] that does not
refresh your memory as to what you told the
detective on that date?
A:                                                         I do not remember.
Q:                                                         You don’t remember anything?
A:                                                         I remember having the conversation but the
                                                           only thing that was refreshed was, like,
                                                           the actual day that it happened.
Q:                                                         Okay.
A:                                                         Like sitting down and all that.
Q:                                                         Okay.    So you don’t remember anything even
                                                           though you gave a full statement to the
                                                           police officer?
A:                                                         I remember hearing the shots and I remember
                                                           running.
Q:                                                         Okay.    But nothing else in that statement
                                                           refreshes your memory?
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A:    No, sir.
Q:    Okay.    Thank you.
Staton similarly testified that someone he did not know
approached the group and spoke with Poindexter before the
shooting. He also testified that he had seen someone wearing a
white t-shirt and jeans with a gun in the area at the time of
the shooting, but could not identify him:
Q:    Would you be able to identify the person
that you saw in the area that evening?
A:    No, I can’t even remember.
The Commonwealth established that Staton, too, had given a
recorded statement to police and provided him with a copy of
it, which he read.    The court also questioned him following his
testimony:
Q:    Young man, you reviewed the statement as
shown to you by the Commonwealth[’s]
Attorney, correct, to refresh your memory?
A:    Yes, sir.
Q:    That was the statement you gave to the
police officer, correct?
A:    Yes, sir.
Q:    But it does not refresh your memory today?
A:    It refreshes my memory but I can’t picture
the person.
Q:    Okay.    Thank you.
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Poindexter testified that he knew Turner because they were
cousins.    However, he said he had not seen Turner on the night
of the shooting:
Q:                                                                 [D]id you see Mr. Turner in that area of
                                                                   22nd Street that night?
A:    No, ma’am.
Q:    Mr. Poindexter, do you remember if anyone
approached you that night?
A:    No, ma’am.
The Commonwealth established that Poindexter had testified
under oath during Turner’s preliminary hearing and provided
Poindexter with a transcript of his testimony, which he read.
It also established that, like the other witnesses, he had
given a recorded statement to police and provided him with a
copy of it, which he read.    It then attempted to continue its
examination:
Q:    Well, after having read that statement and
your preliminary hearing transcript, do you
recall what happened that evening?
A:    No.
Q:    Let me get this straight, you have no
memory of what happened that evening?
A:    Yeah.    We were standing on the corner and a
“fire” happened and we just ran.
Q:    Okay.    You no longer remember whether or
not you saw someone shoot Mr. Robinson?
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A:    No.
Q:    Okay.    You no longer remember whether or
not you saw a gun that evening?
A:    No.
Q:    Okay.    You no longer remember whether or
not you saw anyone else in the area that
evening other than the football players?
A:    No.
Q:    Okay.    And after reading that preliminary
hearing transcript and after reading that
statement that you gave  .  .  . you still
don’t remember what happened that evening?
A:    No.
Although it had questioned Josh and Staton regarding their
claimed loss of memory, the court did not likewise question
Poindexter.    Rather, it merely thanked him and directed him to
return to the witness room.
The Commonwealth thereafter moved that the court declare
Poindexter unavailable as a witness and admit the transcript of
his preliminary hearing testimony.    Turner objected that the
transcript had not been certified by the court reporter.    He
also objected that Poindexter was not unavailable; to the
contrary, he was available and had in fact testified.    The
Commonwealth responded that the question went to the
unavailability of the testimony, not of the witness.
The court, relying on the Court of Appeals’ decision in
Jones v. Commonwealth,  22 Va. App.  46,  467 S.E.2d  841  (1996),
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found Poindexter unavailable and ruled that it would admit the
preliminary hearing transcript if the Commonwealth produced a
certified copy.    After a recess, the Commonwealth reported that
it was unable to locate a certified copy or the court reporter
who transcribed the preliminary hearing.    The court then
sustained Turner’s objection to admitting it.
After the court ruled that the transcript could not be
admitted, the Commonwealth called Keeley, Turner’s counsel at
the hearing, to testify about Poindexter’s testimony.    Turner
objected that although Keeley no longer represented him, Keeley
owed continuing duties to him and should not be permitted to
testify.    The court ruled that it would not permit Keeley to
testify to anything encompassed by the attorney-client
privilege but permitted him to testify about Poindexter’s
public testimony at the preliminary hearing.    Keeley testified
that the transcript accurately reflected Poindexter’s testimony
and that Poindexter had testified that he had seen Turner shoot
someone with a gun, though Keeley could not recall the name of
the victim.
Turner objected that Keeley’s testimony was inadmissible
hearsay.    The court overruled the objection on the ground that
Keeley’s testimony merely provided the testimony of Poindexter,
whom the court had already found to be unavailable.
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Turner thereafter was convicted on both charges in the
indictment.    He appealed to the Court of Appeals, asserting
among other things that the circuit court had erred by finding
Poindexter to be unavailable and allowing Keeley to testify
despite his ongoing duties to Poindexter.    He also asserted
that Keeley’s testimony was based on the inadmissible
transcript rather than his independent recollection of the
preliminary hearing.    The Court of Appeals affirmed Turner’s
convictions, Turner v. Commonwealth,  58 Va. App.  567,  570,  712
S.E.2d  28,  30  (2011), and we awarded Turner this appeal.
II. ANALYSIS
The threshold issue is whether the Court of Appeals erred
in affirming the circuit court’s ruling that Poindexter was an
unavailable witness.    A circuit court’s ruling that a witness
is unavailable is reviewed for abuse of discretion.    Sapp,  263
Va. at  423-24,  559 S.E.2d at  649.    A court abuses its
discretion  “when a relevant factor that should have been given
significant weight is not considered; when an irrelevant or
improper factor is considered and given significant weight; and
when all proper factors, and no improper ones, are considered,
but the court, in weighing those factors, commits a clear error
of judgment.”    Landrum v. Chippenham & Johnston-Willis Hosps.,
Inc.,  282 Va.  346,  352,  717 S.E.2d  134,  137  (2011)  (internal
quotation marks and citation omitted).
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We have recognized an exception to the hearsay rule
allowing an absent witness’s preliminary hearing testimony to
be admitted into evidence at a subsequent trial if the
following conditions are satisfied:
(1) that the witness is presently 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 testimony of the
unavailable witness can state the subject matter
of the unavailable witness's testimony with
clarity and in detail; and  (4) that the party
against whom the prior testimony is offered was
present, and represented by counsel, at the
preliminary hearing and was afforded the
opportunity of cross-examination when the
witness testified at the preliminary hearing.
Sapp,  263 Va. at  423,  559 S.E.2d at  649  (quoting Longshore v.
Commonwealth,  260 Va.  3,  3-4,  530 S.E.2d  146,  146  (2000)); see
also Virginia Rule of Evidence  2:804(b)(1)  (enacted by  2012
Acts chs.  688,  708).
In Jones, the Court of Appeals held that unavailability of
a witness’s testimony because of a lack of memory at trial is
the functional equivalent of the unavailability of the witness
himself under the first prong of the exception:                         “although  [the
witness] appeared in court and testified to his present lack of
memory, he was  ‘unavailable’ for purposes of the exception.    In
such cases, the focus of the inquiry is not the unavailability
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of the witness but the unavailability of the testimony.”            22
Va. App. at  52,  467 S.E.2d at  844.
We echoed the Court of Appeals’ analysis in Sapp.                   263 Va.
at  424,  550 S.E.2d at  649  (“Although the focus of the inquiry
is often directed to the absence of a witness, the analysis
also applies to circumstances when the witness is present, but
for sufficient reasons the witness's testimony is
‘unavailable.’  ”).    However, we also enunciated limiting
principles to ensure that the witness is not merely attempting
to avoid his duty to testify.    Specifically, we stated that
the bona fides of a claim of loss of memory must
be tested.    The subject matter of lost memory
must be established because a witness may have
recollection of some matters and not of others.
Lack of memory relates to the capacity to
testify.    Feigned lack of memory is nothing more
than refusal to testify which should be met with
an order of the trial court to testify and
careful consideration of utilization of contempt
powers as a sanction against continued refusal.
Of course, the trial court is in a unique
position to evaluate the demeanor of the
witness, and after proper inquiry, the decision
of the trial court is entitled to great
deference.    Upon persistent refusal to testify
despite judicial pressures and an order to
testify, or demonstrated bona fide lack of
memory, the testimony of a witness may be
declared unavailable and prior testimony may be
admitted, provided that additional evidentiary
foundations, not at issue in this case, are met.
Id. at  427,  559 S.E.2d at  651  (emphasis added)  (footnote
omitted).
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Thus, after Sapp, a circuit court may not rely on the bare
assertion of a witness that he is unable to answer when
examined at trial because he no longer remembers what occurred.
Rather, the court has an obligation to explore the claim
reasonably to ensure that the witness has not feigned his loss
of memory in an attempt to evade the obligation of testifying.
The court must satisfy itself that the loss of memory is
genuine by conducting an inquiry and observing the demeanor of
the witness as it does so.1    Only then can it assess the
authenticity of the witness’s claim and only then is its
assessment entitled to deference.
In this case, the court conducted no inquiry into
Poindexter’s claim of memory loss.2    In the absence of such an
inquiry, the court had no basis for determining the
1 Evaluating whether memory loss is real or feigned is
crucial because it determines how the court should proceed with
the witness.    As we noted in Sapp, feigned loss of memory is
nothing more than a refusal to testify and  “refusal to testify
should be met with an order  .  .  . directing the witness to
testify.    Although 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.”  263 Va. at  425,  599 S.E.2d at
650  (footnote omitted).    However,  “[w]hen lack of memory is
legitimate and refreshing of memory is not efficacious,
judicial pressure to testify may result in untrustworthy
testimony.”    Id. at  427,  599 S.E.2d at  651.
2 This is a notable contrast to its questioning of Josh and
Staton when they claimed to be unable to recall elements of
what had occurred on the night of the shooting.    The
Commonwealth did not seek to have either of them declared
unavailable.
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authenticity of the claim, which is  “a relevant factor that
should have been given significant weight” in determining
whether Poindexter was unavailable.    Landrum,  282 Va. at  352,
717 S.E.2d at  137  (internal quotation marks omitted).    The
court therefore abused its discretion.
The Commonwealth argues that any error is harmless because
Ellis testified that he saw Turner shoot Robinson.    We
disagree.
We have said that non-constitutional error may be harmless
“[i]f other evidence of guilt is so overwhelming and the error
[is] insignificant[] by comparison, supporting a conclusion
that the error did not have a substantial effect on the
verdict.”    Angel v. Commonwealth,  281 Va.  248,  268,  704 S.E.2d
386,  398  (2011).    The only other direct evidence identifying
Turner as the shooter is Ellis’ statement that he saw Turner
shoot Robinson after Ellis had denied it on direct examination
and confirmed that he had denied it to police on the night of
the shooting.    This inconsistent testimony is not overwhelming
evidence of Turner’s guilt and we cannot conclude that Keeley’s
testimony, which was the result of the erroneous ruling that
Poindexter was unavailable, did not have a substantial effect
on the verdict.    The error therefore is not harmless.
III. CONCLUSION
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In light of our decision, we do not reach Turner’s
assignments of error or the Commonwealth’s assignments of
cross-error relating to the admissibility of Keeley’s
testimony.    We will reverse the judgment of the Court of
Appeals, vacate the convictions, and remand the case with
direction to remand the same to the circuit court for a new
trial consistent with this opinion if the Commonwealth be so
advised.
Reversed and remanded.
JUSTICE LEMONS, concurring.
While I agree with the majority opinion that the trial
court abused its discretion in ruling that Poindexter was
unavailable, I believe there is another and perhaps more
important reason why the judgment of the Court of Appeals
should be reversed.
In its opinion, the Court of Appeals stated that:
Neither Rule  1.6 nor  1.9 prohibits a lawyer from
testifying in court regarding what occurred at a
former public court proceeding when such
testimony does not involve communications solely
between an attorney and his client and the
testimony concerns information that has become
generally known.    The Commonwealth only sought
to elicit events and information conveyed by
Poindexter at a prior public court proceeding,
and did not seek to have any information
disclosed that was privileged or uniquely
related to Keeley's representation of Turner.
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Specifically, Keeley's testimony in this case
did not involve any confidential information or
secrets that he obtained "in the course of the
representation" or "relating to the
representation," Rule  1.9, nor was it "gained in
the professional relationship" or if disclosed
"would be embarrassing or would be likely to be
detrimental to the client."    Rule  1.6.
Turner v. Commonwealth,  58 Va. App.  567,  590,  712 S.E.2d  28,  39
(2011).    The Court of Appeals further stated that "Keeley
violated no rule of professional conduct when he testified
regarding information previously publicly relayed and generally
known."    Id.    As a result, the Court of Appeals held that "the
circuit court did not err in ruling that Keeley could testify
regarding Poindexter's prior sworn testimony."    Id. at  591,  712
S.E.2d at  40.
In this concurrence, I will address only Rule  1.9∗ which
governs conflicts of interests with former clients and
provides, in relevant part, that:
(c) A lawyer who has formerly represented a
client in a matter  .  .  . shall not thereafter:
(1) use information relating to or gained in the
course of the representation to the disadvantage
of the former client except as Rule  1.6 or Rule
3.3 would permit or require with respect to a
client, or when the information has become
generally known; or
(2) reveal information relating to the
∗ Rule  1.9 is modeled after the American Bar Association's
Model Rules of Professional Conduct  ("ABA Model Rules").
Compare Rule  1.9 of the Virginia Rules of Professional Conduct
with Rule  1.9 of the ABA Model Rules.
15




representation except as Rule  1.6 or Rule  3.3
would permit or require with respect to a
client.
Rule  1.9(c) of the Virginia Rules of Professional Conduct
(emphasis added).    Comment  8 to Rule  1.9 explains the lawyer's
duty of loyalty to a former client, and states that
"[i]nformation acquired by the lawyer in the course of
representing a client may not subsequently be used or revealed
by the lawyer to the disadvantage of the client."
Turner was on trial for one count of aggravated malicious
wounding in violation of Code  §  18.2-51.2 and one count of use
of a firearm during the commission of a felony in violation of
Code  §  18.2-53.1.    Keeley represented Turner at his preliminary
hearing; however, Shawn Overbey  ("Overbey") represented Turner
at trial.
At the trial, Darnell Robinson  ("Robinson") testified that
he was shot four times while he was standing around with
several of his football teammates.    Robinson also testified
that he did not recall who shot him.    Eric Poindexter
("Poindexter"), one of Robinson's teammates, testified that:
(1) he, Josh Butler, Lamonte Williams, Donell Staton, and
Robinson were in downtown Newport News; and  (2) they "w[ere]
just sitting on the corner talking and then  [they] were about
to leave and then just I seen  -I just heard some shots and we
all ducked around."    Poindexter further testified that he did
16




not see a gun nor did he see Turner, his cousin, in downtown
Newport News on the night of the shooting.    Poindexter's lack
of recall of any other details appears at odds with his
recollection at the preliminary hearing.
Thereafter, the Commonwealth called Keeley to testify and
Turner's attorney objected, stating that Keeley "still would
have a duty or an obligation to Mr. Turner as his prior counsel
with regards to anything that may have transpired and he would
not be permitted to do anything that would be detrimental
possibly to Mr. Turner."    The trial court overruled the
objection.    Keeley testified that both Robinson and Poindexter
testified at Turner's preliminary hearing.    Keeley also
testified that he recalled Poindexter testifying at Turner's
preliminary hearing and, to the best of his knowledge,
Poindexter testified that Turner shot Robinson.
Most cases interpreting Rule  1.9 involve motions to
disqualify a lawyer or firm from representation.    However, the
exception regarding information that "has become generally
known" is often the subject of analysis.
The United States District Court for the District of New
Jersey has held that ABA Model "Rule  1.9(c) extends to the
revelation of information obtained through the attorney client
relationship to any third party to the detriment of the former
client, regardless of the former attorney's relationship with
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that third party."    Pallon v. Roggio, Civ. Nos.  04-3625  (JAP),
06-1068  (FLW),  2006 U.S. Dist. LEXIS  59881, at  *25  (D.N.J. Aug.
24,  2006).    Moreover, ABA Model "Rule  1.9(c) is broader than
the protection afforded by the duty of confidentiality and is
not limited to confidential information.    However,  [ABA Model]
Rule  1.9(c) does not apply to information that is 'generally
known.' "    Id. at  *23  (internal citation omitted).    In
discussing what constitutes information that is "generally
known," the court in Pallon stated:
"Generally known" does not only mean that the
information is of public record.    The
information must be within the basic
understanding and knowledge of the public.    The
content of form pleadings, interrogatories and
other discovery materials, as well as general
litigation techniques that were widely available
to the public through the internet or another
source, such as continuing legal education
classes, does not make that information
"generally known" within the meaning of Rule
1.9(c).
Id. at  *23-24  (internal citation omitted).
In Pallon, defendant Vincent Roggio  ("Roggio") filed a
motion to disqualify the law firm of Scarinci and Hollenbeck
("Scarinci and Hollenbeck") from representing Zachary Emmanouil
("Emmanouil"), a plaintiff in the matter.    Id. at  *2-3.    Roggio
argued that Emmanouil, his former attorney, "provided
information to Scarinci and Hollenbeck that  [Emmanouil] only
could have obtained through his attorney client relationship
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with Roggio."    Id. at  *24.    The court noted that while the
information Emmanouil provided to Scarinci and Hollenbeck may
have been "within the knowledge of anyone who dealt with
Roggio,  [the information was] certainly not generally known."
Id.
In this case, Keeley learned of Poindexter's testimony at
Turner's preliminary hearing during the course of his
representation of Turner.    Keeley related that Poindexter
testified at the preliminary hearing that Turner shot Robinson.
Such testimony was clearly to the disadvantage of Turner who
was standing trial for aggravated malicious wounding of
Robinson.    Although Keeley testified regarding the testimony
that transpired at Turner's preliminary hearing, the
information was not generally known.
While testimony in a court proceeding may become a matter
of public record even in a court denominated as a "court not of
record," and may have been within the knowledge of anyone at
the preliminary hearing, it does not mean that such testimony
is "generally known."    There is a significant difference
between something being a public record and it also being
"generally known."
In my view, the Court of Appeals erred in concluding that
"Keeley violated no rule of professional conduct."    Turner,  58
Va. App. at  590,  712 S.E.2d at  39.    Keeley violated Rule  1.9 by
19




testifying against Turner, his former client, about information
gained in the course of the representation that was to Turner's
disadvantage when such information was not "generally known."
The trial judge abused his discretion by permitting this
testimony.
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