Charles Albert Massey v. Joseph Walters, Director, Virginia Department of Corrections

Pointer v. Texas, 380 U.S. 400 (1965) held the Confrontation Clause bars admission of preliminary hearing testimony from a witness unavailable at trial if the defendant was uncounseled at the preliminary hearing. In Crawford v. Washington, 541 U.S. 36, 57 (2004), this Court explained prior testimony of an unavailable witness “is admissible only if the defendant had an adequate opportunity to cross-examine.” Petitioner was arrested for two counts of rape of his former fiancée and her simple abduction the following morning. At the preliminary hearing, she testified and was crossexamined. After her death a short time later, text messages revealed she feigned memory loss at the hearing. Petitioner was indicted for the charged offenses and a new count of abduction with intent to defile1 for her alleged asportation inside her apartment before the alleged sexual assaults. Defense counsel unsuccessfully moved to exclude her preliminary hearing testimony from trial, arguing “the most serious indictment2 came ten days after she died, so I never got a chance to talk to her about it at the preliminary hearing and I never will.” At trial, the challenged preliminary hearing testimony was read to the jury. Massey was convicted of abduction with intent to defile and two counts of rape. The questions presented are: Does the Confrontation Clause allow the Petitioner to be convicted at trial—using preliminary hearing testimony

1. Va. Code § 18.2-48, which offense carries 20 years to life in prison.

2. Defense counsel was referring to the new charge, abduction with intent to defile.