Malik Luquan Kennedy v. Commonwealth of Virginia
0510161
| Va. Ct. App. | Mar 7, 2017Background
- Kennedy on probation in Chesapeake; probation officer sought capias and a probation-violation hearing filed in December 2015.
- Major violation report alleged Kennedy committed new offenses while on probation, left the designated area, and failed to pay restitution.
- Addendum (Feb. 10, 2016) alleged a violation for contacting several incarcerated gang members by mail/J-Pay.
- At the Feb. 25, 2016 revocation hearing, the court listed violations of Condition 1 (speeding), Condition 10 (leaving the area), and the Special Condition for costs, plus a potential Condition 6 violation for gang contact; Kennedy pled guilty to those allegations.
- Commonwealth offered no further evidence; Kennedy testified about travel restrictions and inability to pay restitution; admitted contacting his cousin but denied other gang mailings.
- Probation officer presented emails/letters from gang intelligence indicating Kennedy’s involvement with NYB and other gang activity; defense objected to hearsay, but court admitted the evidence as reliable to rebut Kennedy’s denial; Kennedy chose not to challenge the correspondence at allocution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of gang-intel email as hearsay | Commonwealth contends the email is reliable and admissible to rebut Kennedy’s denial. | Kennedy argues the email is hearsay and unreliable for proving contact with gang members. | Abuse-of-discretion ruling; admission deemed harmless; affirmed. |
Key Cases Cited
- Henderson v. Commonwealth, 285 Va. 318 (2013) (reliability vs. balancing tests for revocation due process)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (due process in probation revocation; flexible procedures)
- Morrissey v. Brewer, 408 U.S. 471 (1972) (revocation hearings may admit non-criminal-trial evidence)
- Davis v. Commonwealth, 12 Va. App. 81 (1991) (hearsay in revocation evidence; probation officer testimony permissible)
- Sigler v. Commonwealth, 61 Va. App. 674 (2013) (restatement on monetary restitution and forfeiture context in appeals)
- Goins v. Commonwealth, 251 Va. 442 (1996) (party admissions admissible against party)
- McCarter v. Commonwealth, 38 Va. App. 502 (2002) (letters to inmates as party admissions)
- Ferguson v. Commonwealth, 16 Va. App. 9 (1993) (harmless error in appellate review context)