Waylon Allen Cox v. Commonwealth of Virginia, 65 Va. App. 506

Background

Appellant (Waylon Allen Cox) faced a probation revocation hearing in Pulaski County for alleged failures to appear for drug screens, positive cocaine tests (Jan. 15 and Feb. 11, 2014), and unpaid court costs tied to 2004 convictions.
The Commonwealth called one witness: Pulaski probation officer Dana Manns, who testified she had no personal knowledge but relied on a probation violation report prepared by Martinsville officer Thomas Bullock (the report was signed by Manns for Bullock).
Appellant objected that the report and Manns’s testimony were testimonial hearsay and that admitting them without Bullock’s testimony violated his Fourteenth Amendment due process right to confront accusers; the court overruled and admitted the report and testimony.
The trial court justified admission by stating hearsay rules are "greatly relaxed" in probation violations and that reports from other jurisdictions are customary; it did not make a finding of "good cause" to deny confrontation under Morrissey/Gagnon standards.
The Court of Appeals reviewed preservation and waiver and held appellant preserved his confrontation objection and did not waive it by cross-examining Manns; it then held the trial court erred by admitting testimonial hearsay without finding good cause and that the error was not harmless because the report and testimony were the only evidence.

Issues

Issue	Appellant's Argument	Commonwealth's Argument	Held
Whether testimonial hearsay (probation report and testimony about it) may be admitted in a revocation hearing without the preparer being available for confrontation	Admission violated Cox’s Fourteenth Amendment due process right to confront accusers; report is testimonial and court must find good cause before denying confrontation	Report was reliable and admissible; appellant waived or failed to preserve his objection; notice of the report meant objection should have been raised earlier	Court reversed: admission without a finding of good cause violated due process; error not harmless because the report/testimony were sole evidence
Whether appellant preserved his confrontation objection for appeal	Objected at hearing, cited Henderson and Melendez-Diaz and pointed to lack of testing details and absence of witness for cross-exam	Argued appellant failed to ask court to state specific grounds on the record and thus failed preservation under Rule 5A:18	Preserved: objection stated with reasonable certainty; trial court and Commonwealth had opportunity to respond
Whether appellant waived objection by cross-examining Manns about the report	Cross-examination was to expose lack of Manns’s personal knowledge; did not introduce similar hearsay on his own behalf	Argued cross-examination amounted to assuming a position inconsistent with objection, thus waiver	No waiver: merely cross-examining the witness did not constitute introducing similar hearsay testimony on appellant’s behalf
Whether the error admitting the report was harmless	Admission affected the factfinder because report/testimony were sole evidence	Commonwealth contended report was reliable and admissible, implying harmlessness or at least admissibility	Not harmless: reversal required and remand for further proceedings if Commonwealth advises

Key Cases Cited

Henderson v. Commonwealth, 285 Va. 318 (Va. 2013) (discusses limited confrontation rights in revocation hearings and tests for "good cause")
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009) (Confrontation Clause limits on forensic/report evidence and notice-and-demand discussion)
Morrissey v. Brewer, 408 U.S. 471 (U.S. 1972) (due process protections required in parole revocation proceedings)
Gagnon v. Scarpelli, 411 U.S. 778 (U.S. 1973) (procedural safeguards for probation/parole revocation)
Jackson v. Commonwealth, 267 Va. 666 (Va. 2004) (standard for viewing evidence on appeal)
Clay v. Commonwealth, 262 Va. 253 (Va. 2001) (harmless error principles concerning influenced factfinders)