812 S.E.2d 466
Va. Ct. App.2018Background
- On Jan. 15, 2016 Cody assaulted and strangled Rebekka Weingarten; she sought help by calling 911, was examined by a forensic nurse, and gave statements to deputies and the domestic-violence coordinator. Injuries and a medical/legal report were documented.
- A J&DR court entered a protective order against Cody; while jailed he made five recorded calls to Weingarten using another inmate’s account, repeatedly asking her to drop the order/charges and not cooperate with prosecution.
- After the calls, Weingarten retained counsel, the protective order was modified to permit contact, and she later invoked the Fifth Amendment at the preliminary hearing despite a broad offer of immunity; she refused to testify at trial.
- Commonwealth sought to admit Weingarten’s out-of-court statements (911 call, medical/legal report, statements to deputies) under the forfeiture-by-wrongdoing doctrine; Cody objected under the Sixth Amendment Confrontation Clause.
- The circuit court found by a preponderance that Cody’s repeated, illegal contacts were wrongful acts intended to and that in fact did procure Weingarten’s unavailability; it admitted her statements. Cody was convicted; he appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the out-of-court statements are testimonial (triggering Confrontation Clause) | Commonwealth: some statements (to police) are testimonial and require exception to admit if declarant unavailable | Cody: statements (including medical report and 911) are testimonial and admission violated Sixth Amendment absent cross-examination | Court: 911 and medical/treatment statements are non‑testimonial; statements to law enforcement are testimonial and thus trigger Confrontation protections |
| Whether forfeiture by wrongdoing can apply when defendant’s conduct caused a witness to invoke the Fifth Amendment (legal unavailability) | Commonwealth: yes — unlawful contact and persuasion to drop charges procured the witness’s refusal to testify, satisfying forfeiture | Cody: forfeiture has been applied mainly where defendant caused physical unavailability (e.g., death); here Weingarten chose to assert Fifth Amendment on her own | Court: Forfeiture applies where defendant’s wrongful acts were intended to and did procure unavailability, including instances where the witness becomes legally unavailable by invoking the Fifth Amendment |
| Whether Cody’s five jail calls constituted wrongdoing sufficient to satisfy forfeiture | Commonwealth: repeated violations of protective order and manipulative requests to drop charges constitute wrongful acts intended to prevent testimony | Cody: his calls did not physically prevent testimony and the witness’s Fifth Amendment invocation was her independent choice | Court: The facts (tone, persistence, urging to drop charges, subsequent attorney demand) support finding Cody intended to procure unavailability and therefore forfeited confrontation rights |
| Preservation of objection to jail call statements | Cody: challenged admission of all out‑of‑court statements on Confrontation grounds | Commonwealth: pointed to pretrial withdrawal of motion to exclude statements made during Cody’s jail calls | Court: Issue waived as Cody withdrew and did not renew objection to admission of Weingarten’s statements in the recorded jail calls |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause excludes testimonial statements absent prior cross-examination)
- Giles v. California, 554 U.S. 353 (forfeiture-by-wrongdoing requires intent to prevent witness testimony)
- Davis v. Washington, 547 U.S. 813 (primary‑purpose test for whether statements to emergency personnel are testimonial)
- Michigan v. Bryant, 562 U.S. 344 (objective totality of circumstances governs testimonial inquiry)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (unavailable declarant + prior cross-examination required for testimonial evidence)
- Reynolds v. United States, 98 U.S. 145 (historical recognition of forfeiture-by-wrongdoing doctrine)
- United States v. Gray, 405 F.3d 227 (forfeiture may extend to persuasion or instruction to invoke Fifth Amendment)
- Sanders v. Commonwealth, 282 Va. 154 (statements for medical treatment are generally non‑testimonial)