Henderson v. Commonwealth, 710 S.E.2d 482

Henderson was convicted in 2001 of robbery and sentenced to 25 years with most suspended, later released to five-year probation.
Upon release in Sept. 2009, Henderson was alleged by his probation officer to have been arrested for robbery on Oct. 8, 2009, triggering a recommendation for a warrant and return to court.
The Oct. 14, 2009 letter alleged three probation violations but only two were raised at revocation; one police charge was later nolle prosequied.
At a Feb. 26, 2010 probation revocation hearing the Commonwealth added a general good-behavior violation; no evidence was offered on the alleged report-absence (Condition #2).
Ortiz testified to two robberies investigated in Oct. 2009; one had no charges and the other was nolle prosequied; defense objected to hearsay as to statements by witnesses.
The circuit court admitted Ortiz’s testimony, revoked probation, and reinstated the suspended sentence, prompting this appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Henderson preserved the confrontation issue under Rule 5A:18.	Henderson objected to Ortiz’s hearsay as confrontation.	Commonwealth argues the objection referenced Sixth Amendment rights.	Issue preserved; merits reached.
Whether Ortiz’s testimony constituted testimonial hearsay under the Fourteenth Amendment confrontation standard.	Ortiz’s testimony is testimonial hearay based on witnesses’ statements.	Testimony falls outside Crawford’s scope in probation revocation context; limited due process allows it.	Testimony was testimonial hearsay; due process requires confrontation absent good cause.
Whether there was good cause to deny confrontation under Morrissey balancing or reliability standards.	State failed to show good cause for denying confrontation; hearsay bears no reliability indicia.	Reliability or balancing test permits admission if evidence is reliable or strongly corroborated.	Circuit court erred in admitting the testimonial hearsay; reversal and remand.
Which test should govern admissibility of hearsay in probation revocation—reliability or balancing?	Reliability test applies in Virginia; admissibility depends on reliability without requiring confrontation.	Balancing test preferred to align with Morrissey and Crawford framework.	Court held balancing test preferred; but in this case the record failed to show good cause.

Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due process requirements for probation revocation hearings; confrontation right absent unless good cause)
Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (minimum due process for revocation hearings; Morrissey framework)
Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (see above)
Davis v. Washington, 547 U.S. 813 (U.S. 2006) (testimonial vs non-testimonial statements; confrontation scope)
Melendez-Diaz v. Massachusetts, 557 U.S. _ (U.S. 2009) (testimonial evidence and confrontation concerns; modern appraisal of reliability)
Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (testimonial hearsay and confrontation doctrine; primary framework for reliability)
Dickens v. Commonwealth, 52 Va. App. 412 (Va. App. 2008) (Virginia probation revocation hearsay admissibility and official records reliability)
Turner v. Commonwealth, 278 Va. 739 (Va. 2009) (polygraph exclusion; adoption of reliability approach in VA)
Curtis v. Chester, 626 F.3d 540 (10th Cir. 2010) (reliability vs good cause in probation revocation)
McCallum, 677 F.2d 1024 (4th Cir. 1982) (demonstrably reliable hearsay standard in revocation)
Martin v. United States, 382 F.3d 840 (8th Cir. 2004) (reliability considerations for hearsay in revocation)