817 S.E.2d 354
Va. Ct. App.2018Background
- Mooney had two prior grand larceny convictions (2007, 2011) with partially suspended sentences; after new convictions in 2017 the court held a revocation hearing and re-imposed three years.
- At the revocation hearing Mooney admitted violating probation by being convicted of new offenses (domestic assault and battery, abduction, strangulation) in another jurisdiction.
- The prosecutor recited facts from an unidentified newspaper article that quoted the victim’s trial testimony; the article was not entered into evidence and is not in the record.
- Defense counsel objected on hearsay and confrontation grounds but conceded Mooney did not contest the fact of conviction and did not want the victim brought to the hearing.
- The trial court overruled the objection, noting hearsay is frequently admitted in revocation proceedings; Mooney appealed claiming a due process Confrontation Clause violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admitting newspaper-report quotes of trial testimony at a revocation hearing violated Mooney’s due process right of confrontation | Mooney: the quoted newspaper statements amounted to testimonial hearsay and required confrontation or a court finding of good cause to allow admission | Commonwealth: the article was non-testimonial (published for the public, not for prosecution), and hearsay is often admissible in revocations | Court: evidence was non-testimonial; no confrontation right implicated, admission did not violate due process |
| Whether the trial court was required to make an on-the-record "good cause" finding before admitting the hearsay | Mooney: court must state specific good-cause findings whenever testimonial hearsay is admitted in revocation proceedings | Commonwealth: no such finding required if the evidence is non-testimonial | Court: because evidence was non-testimonial, no good-cause finding was required |
Key Cases Cited
- Henderson v. Commonwealth, 285 Va. 318 (2013) (revocation proceedings permit hearsay but testimonial hearsay implicates limited confrontation rights)
- Cody v. Commonwealth, 68 Va. App. 638 (2018) (analysis whether proffered evidence is testimonial)
- Holloman v. Commonwealth, 65 Va. App. 147 (2015) (use-all-relevant-circumstances test for testimonial character)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause protects against admission of testimonial statements unless opportunity for cross-examination existed)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process limits in parole/probation revocation contexts)
- Ohio v. Clark, 135 S. Ct. 2173 (2015) (statements not made for prosecution are less likely testimonial)
- Michigan v. Bryant, 562 U.S. 344 (2011) (consider all relevant circumstances to determine whether statement is testimonial)
- Walker v. Commonwealth, 281 Va. 227 (2011) (records or publications created for neutral/public purposes are not testimonial)