Henderson v. Commonwealth

710 S.E.2d 482 HENDERSON, Terrence Henderson Terrance Robert s/k/a Virginia. of COMMONWEALTH No. 0688-10-4. Record Virginia, Appeals Court Alexandria.

June 2011. J., Haley, dissenting opinion. filed a (Law Tuomey Elizabeth Lauwaert Office of Keith Hal- 0.

lam, Jr., briefs), on appellant. for (Ken-

Eugene Murphy, Senior Attorney Assistant General Cuccinelli, II, General, brief), neth T. Attorney on for appellee. HUMPHREYS, ALSTON, HALEY Present: and JJ. HUMPHREYS, Judge. (“Henderson”) argues

Terrance Robert Henderson in this (“circuit that the appeal Arlington County Circuit Court of court”) process right violated his due confront witnesses him against during probation hearing when it admitted Detective Rosa Arlington hearsay testimony Ortiz’s offenses, which either never resulted

concerning other prosequied. or were nolle charges against Henderson

I. BACKGROUND January in the circuit court on Henderson was convicted 18.2-58, § and was robbery, 2001 of violation Code all twenty-five years imprisonment with but six sentenced his release from years eight suspended. Upon and months incarceration, placed the circuit court ordered him to be on if the circuit court or probation years probation for five or less 14, 2009, September officer released him sooner. On prison began probation.1 Henderson was released from his 14, 2009, Henderson’s officer sent a On October noting letter to the circuit court that Henderson had been 8, 2009, robbery and with charged arrested on October Arlington County, Virginia, setting specific probation forth the violated,2 conditions that Henderson and recommending that the circuit court issue a bench warrant as a detainer and him return Henderson to the circuit court for to show cause as why probation probation to his should not be revoked. The officer’s letter recommended that “the balance of the suspend be imposed robbery ed sentence the case be closed.” referred charge prosequied to this letter was later nolle prior hearing. to the revocation 26, 2010, February probation

On the circuit court held a hearing. hearing, At the the Commonwealth added an allegation additional that Henderson was also violation of probation general good condition of his that he be of sentencing provided 1. The March order for this sentence to run sentences, consecutively explains with all other which the difference imposed by between the sentence the circuit court and the actual time Henderson served. specific probation alleged 2. The that conditions officer’s letter Henderson violated are as follows: Federal, obey Condition #1: I will all State and local laws and Ordinances. arrest, tickets, any report including Condition #2: I will traffic days within 3 to the Probation and Parole Officer. to the of previously alleged probation behavior list violations.3 However, a total of three of although probation conditions violated, alleged were to have been the Commonwealth did not present any regarding evidence Henderson’s alleged violation 2,# alleged of Condition his failure to an to report arrest his Indeed, probation officer. evidence offered in only sup port any of of the alleged violations of the conditions of (“Ortiz”) testimony was the of Detective Rosa Ortiz who testified two regarding alleged robberies that she had investigated in October 2009. No were charges brought against robberies, Henderson in connection with one of these and the robbery other was charge prosequied. nolle During Ortiz, questioning Commonwealth’s Henderson’s coun objected sel her testimony to regarding what the witnesses in both cases told her.4 The following colloquy took place re garding objection: his Honor,

[Henderson’s Your point counsel]: at this I’m going object on hearsay. And I understand that is admissible in these types proceedings, but I think we have—there qualifier is a to that case. mean,

I I understand that the Davis case controls the hearsay question. However, in the Davis case the Court was referencing and admitting they what determined to be reliable hearsay, meaning hearsay from one government agent to another.

To the extent the detective’s testimony going cover information not reported from another government agent, reported or from another government but agent from probation 3. We note that the testify regarding officer was not called to allegations concerning performance his probation, Henderson's on nor probation was the October 2009 letter from the officer to the circuit asserting court that Henderson had violated two of the conditions of probation probation admitted into evidence at the hearing. revocation brief, 4. On challenged testimony Henderson regarding also Ortiz’s telephone involving recorded conversations Henderson and a co-defen- dant, incarcerated, they while family were with their and friends. At argument, oral Henderson’s they counsel conceded that were not chal- calls, lenging testimony regarding telephone and thus we do not address them. police one agent, like government was not a someone who reports the victim this a victim and then interviews officer into evidence that crime, getting that we are to the extent crime, I think that that is the of a report be a victim’s would type not be allowed hearsay that should type of proceeding. admitted, right violates his is that that

Secondly, if viola- he guaranteed which confrontation, hearings. tion right The things, Judge. Two

[Prosecutor]: of confronta- post-trial are in this case. attaches at trial. We only tion proceeding. a We are at in good position I that the Court is a to Secondarily, believe appropri- to hear the testimony you that are about give the that it’s entitled to. weight ate may report a or a Certainly, person to the extent that victim weigh can something a officer is this Court police that. I credibility much should attach to So and decide how admissibility weigh to allow its and to it would ask the Court appropriately. Overruled. COURT: added).

(Emphasis alleged the two proceeded testify regarding then Ortiz occurred on October attempted robbery The first robberies. 2, 2009, alleged with the victim and his spoke and Ortiz n daughterby telephone October on 2009. Ortiz testified that call on phone informed her that he had received the victim him to leave asking cell from an unknown number phone his go sign legal and to to the courthouse to some apartment his leaving his regarding family Upon documents member. victim, unsuccessfully a man apartment, approached The victim bag, purse.” tried to take the victim’s “a men’s had discovered that they and his advised Ortiz that daughter phone made Henderson’s cell the call to the victim was from him their and had come to they and that called Henderson the incident. regarding talk with the victim house to his to a lot of phone Henderson informed them that he lends he had loaned it to he not remember whom people, and could Henderson, he told her spoke with day. that When Ortiz was phone and later “that his “basically thing,” the same days miraculously porch ... on his two appeared stolen and really he “explained that] The victim then to [Ortiz later.” daughter, knew his charges people didn’t want to file because they in the lived the same they neighborhood, and all were he no neighborhood, they Apparently, knew where lived.” ever Henderson connection charges brought against were with this incident. robbery investigated

The Ortiz was the October second robbery 2009 home invasion which was the basis for This later charge Henderson’s October 2009 arrest. was supervisor Ortiz testified that her called prosequied. nolle “to night police her “at at her house” to come to the station robbery.” police a home invasion She went to the investigate station, and met with the victim on October 2009. Ortiz testified that the victim informed her that three individuals house, door, opened came to his knocked oh the front ignored unlocked front door after the victim them because he were, looked and who and then entered his home. they saw that the victim identified one Ortiz then testified prior individuals as Henderson whom he had met few weeks robbery they to the at the office. After entered his home, the other explained the victim to Ortiz that one of carrying displayed was the firearm and gun individuals The victim they personal property. stole some of his lineup then Henderson out of a that Ortiz picked photo prepared.

Ortiz further testified that when she met with the victim mother, ultimately testify they and his both refused to because informed were scared of retaliation. The victim’s mother gunshots day Ortiz “she heard around the house” the [had] before, really “and that scared her.” Ortiz stated that she case, gun never found a but that she had heard one of robbery in the alleged other individuals arrested second girlfriend jail during with his from a recorded tele- speaking in a phone gun by conversation about a reference safe. safe, the and later the code for girlfriend individual gave Ortiz also gun. had the girlfriend that the repeatedly said conversa- telephone in the course of the recorded testified that “they that individual state jail she heard this other tions from they got me and Terrence.” got in arrest, people Ortiz that informed After his Henderson him, why and that’s his didn’t like neighborhood “simply different cases.” Henderson also came on these two up name midnight, day 8:00 and of that “between told Ortiz incident, people to and there were porch talking he was on his regarding on the Ortiz also testified people porch.” other had that Henderson with his telephone recorded conversation conversation, that jail. During mother while he was him that the second victim’s mother informed Henderson’s making for asking money exchange mother was for pay off the charges going but that she was not drop, at the mother. Henderson’s mother also testified victim’s the other girlfriends and reiterated that one of the hearing, crime told her that alleged individuals the second money, but she requesting mother of the second victim was pay any money was “not to her because going [Henderson] anything.” didn’t do Henderson’s mother also testified 8, 2009, not out on the night of October Henderson was on that he p.m., when she arrived home at 10:20 but was porch the house that in his bedroom and he did not leave upstairs night. concluded, and the circuit court found that hearing

The proba- had violated the terms and conditions of his Henderson tion, his probation, previ- revoked Henderson’s reinstated followed. ously suspended appeal sentence. This

II. ANALYSIS admissibility of evidence is within the discre “The court, only review decision for tion of the trial and we its Commonwealth, 52 Va.App. of discretion.” Dickens v. abuse (2008) 412, 417, (citing 663 S.E.2d 550 Blain Common (1988)). wealth, 10, 16, 371 S.E.2d 842 “How- Va.App. ever, due of confrontation appellant’s process right whether is de novo.” Id. question violated is a of law and reviewed was Commonwealth, 461, 465, Va.App. Michels v. (citing (2006)). 675, S.E.2d Rule 5A:18

A. Waiver: contends that Henderson waived Commonwealth due right his under Rule 5A:18 to claim a violation his he did not process right present to confrontation because trial, claim circuit At to the court. Henderson’s counsel objected hearsay testimony to the admittance of the “if stating admitted, right that violates his of confronta tion, guaranteed hearings.” which he is violation objection The contends that Commonwealth Henderson’s was the exclusively based on Sixth Amendment Confrontation that, Clause since the Commonwealth’s response was “[t]he right of confrontation only post-trial attaches at trial. We are in this case. We are at a revocation proceeding.” The basis for the Commonwealth’s is contention that Henderson’s coun objection sel did not explain his after the Commonwealth’s response, thus the circuit court had no reason to know that right objection the to confrontation upon was based the Due Process Clause of the Fourteenth Amendment rather than the Sixth Amendment. provides,

Rule 5A:18 in pertinent part, that “[n]o ruling of the trial ... court will be considered as basis for reversal the objection unless was stated together with the grounds therefor at the time of ruling, except the for good cause shown or to the enable Court of to attain Appeals justice.”5 Therefore, ends of “in preserve order to an issue 1, 2010, states, July 5. Effective Rule 5A:18 was revised and now "[n]o ruling of the trial court ... will be considered aas basis for reversal objection certainty unless an was stated with reasonable at the time of ruling....” proceedings completed Because prior below were to effect, taking rely language this revision we will on the of Rule 5A:18 Bar, 3, 1, that was then in effect. See Fails v. Va. State 265 Va. 5 n. 574 530, (2003) (applying S.E.2d 531 n. 1 the Rule of Court in effect at the below). proceedings time of the 376 grounds made and the objection timely must be appeal,

for ‘an Commonwealth, v. 56 Kovalaske specificity.’” stated with (2010) 229, 641, 224, (quoting 645 692 S.E.2d Va.App. McDuf 177, 139, 142 Commonwealth, 170, 49 638 S.E.2d Va.App. v. fie (2006)). the rule is to ensure the trial purpose main “[T]he any and take correc intelligently court can ‘consider issue unnecessary appeals, reversals necessary tive actions to avoid ” 230, 692 at 645 Martin (quoting and mistrials.’ Id. at S.E.2d 401, Commonwealth, 524, 530, 414 13 S.E.2d 404 Va.App. v. (1992)). case, sufficiently was preserved. the issue circuit court aware of

record establishes was objection admissibility testimony to the Henderson’s Ortiz’s applied of confrontation as it upon right based his Commonwealth, See v. hearing. Caprino (“ (2008) 181, 184, 36, 53 670 S.E.2d 37-38 ‘Absent Va.App. record, contrary judgment clear evidence to the of a appeal presumption trial court comes to us on with a that the ” correctly applied (quoting Yarborough law was facts.’ Commonwealth, 971, 978, 234 v. Va. S.E.2d Commonwealth, 61-62, (1977))); Va.App. Groves (2007) (“This 28, 30 means the ‘judge presumed S.E.2d ” apply correctly know the law and it in each case.’ (quoting Commonwealth, 172 n. Va.App. Crest v. 578 S.E.2d (2003))). 88, 91 n. 3

The record further establishes that the circuit court knew the action that Henderson desired the circuit court to take and his basis for it. The circuit court had the to legal opportunity intelligently, any consider the issue and to take corrective necessary. Contrary action it deemed to the in- implication objec- herent in the argument, Commonwealth’s Henderson’s for the circuit to sufficiently specific tion was court understand objection—that the nature of his the evidence should not be admitted—and the therefor—that it violated his con- grounds right right applied stitutional to confront that evidence as that in a revocation The Commonwealth’s re- probation hearing. sponse objection may suggest to Henderson’s well that the right that a limited due of prosecutor process was unaware of a revocation probation confrontation the context exists of Amendment trial hearing parameters outside the Sixth However, any knowledge theoretical lack of of the law rights. cannot be to the circuit part prosecutor imputed on the of the for part court. Nor does a mistake of law on counsel response by mandate a or clarification opposing party objec- objecting party long original counsel for the as as requirements by putting tion satisfies the of Rule 5A:18 court on adequate grounds notice of the nature and Moreover, objection. contrary to the assertion of the Com- responded monwealth that Henderson should have to the prosecutor’s argument, the record reflects that he had no opportunity immediately to do so since the circuit court ruled Therefore, hearing response. after the Commonwealth’s we reach the on appeal. merits of issue

B. Fourteenth Amendment Due Process

Right to Confrontation alleges Henderson the circuit court violated his Four process right teenth Amendment due to confrontation when it testimony.6 admitted Ortiz’s argues objection 6. The that Henderson’s Commonwealth at trial was solely upon based the Sixth Amendment Confrontation Clause and that objection properly was overruled because Sixth Amendment apply hearings. right does not at revocation “The Sixth Amendment is prosecutions,’ hearing limited to 'criminal and a is not ” Dickens, prosecution.’ Va.App. 'criminal at 417 n. 663 S.E.2d at Brewer, 471, 480, (citing Morrissey 550 n. 1 408 U.S. 92 S.Ct. However, below, (1972)). 33 L.Ed.2d 484 Henderson did not now, and does not contend that the circuit court violated his Sixth right only Amendment confrontation. It to Commonwealth that Rather, argued has ever made that assertion. Henderson in the circuit testimony right court that Ortiz’s his violated confrontation as it which, applied hearings, fully violation as discussed more below, only right can be the more limited of confrontation conferred Therefore, the Due Process Clause of the Fourteenth Amendment. contention, we there is no merit the Commonwealth’s do not it address further. alleges right The Commonwealth also that Henderson forfeited his However, confront the witnesses due to witness intimidation. there is no evidence in the record that the circuit court made a factual determi- any testify hearing nation that witnesses refused to at the revocation 378 Supreme the United States Court and this

“[B]oth hearings have ... held that revocation are probation Court probation of criminal and therefore a stage prosecution not process protections er is not entitled to the same due afforded Dickens, prosecution.” Va.App. a defendant in a criminal 52 Commonwealth, Davis v. 417, 12 (citing at 663 S.E.2d at 550 84, Gagnon see also v. 81, 684, (1991)); 402 686 Va.App. S.E.2d 778, 782, 1756, 1759-60, Scarpelli, 411 U.S. 93 S.Ct. 36 Brewer, (1973); 471, 480, Morrissey v. L.Ed.2d 656 408 U.S. (1972).7 2593, 2599-2600, However, 92 S.Ct. 33 L.Ed.2d 484 any due that such refusal was to intimidation Henderson or his agents; any there nor is evidence in the record before us that would Thus, support implicit finding. such an we likewise do not address appeal. contention on probation hearings 7. Because are not criminal trials and them, Morrissey predates Supreme also because the United State right Court’s decision on the contours of the Sixth Amendment trials, 36, Washington, confrontation in criminal v. 541 U.S. Crawford 1354, (2004), progeny 124 S.Ct. 158 L.Ed.2d 177 and its are not directly implicated except they apply or discussed herein as to the hearsay, understanding definition of testimonial and to facilitate an of history "reliability” applied by jurisdictions the process test some to due Commonwealth, Harper Va.App. confrontation issues. See v. 54 21, 27, 29, 841, 844, (2009) ("The opinion 675 S.E.2d 845 Crawford Roberts[, 56, necessity replacing focuses on the of 448 [Ohio v.] U.S. 2531, (1980),] 100 S.Ct. 65 L.Ed.2d 597 standard with what the Court original understanding considers to be the of what the confrontation is, is, right procedural guarantee may to the accused that he challenge against through process testimonial evidence him opinion cross-examination. The does not contain a similar revision of type legal proceedings ap which Confrontation Clause plies opinion applies .... 'The does not state that its rule Crawford sentencing; sentencing. may it does not refer to While that rule context, eventually sentencing happened be extended to the that has not Chau, 1318, (11th yet.’” (quoting United States v. 426 F.3d 1323 Cir.2005) Rose, 762, (emphasis original))); State v. 144 Idaho 253, (2007) ("Other jurisdictions P.3d question appear 258-59 that have decided the change to be unanimous that does not Crawford process due standard for confrontation in a revocation hear Williams, 35, (2d Cir.2006); ing.” (citing United States v. 443 F.3d 688, (7th Cir.2006); Kelley, United States v. 446 F.3d 690-92 Ash v. 826, (D.C.Cir.2005); Rondeau, Reilly, 431 F.3d 829-30 United States v. 44, (1st Hall, 980, Cir.2005); 430 F.3d 47-48 United States 419 F.3d denied, (9th Cir.), 985-86 cert. U.S. 126 S.Ct. (2005); (6th Kirby, L.Ed.2d 714 United States v. 418 F.3d 627-28 Martin, Cir.2005); (8th United States v. 382 F.3d 844 n. 4 Cir. revocation, revocation, ... does result parole like “[probation like a ... a liberty. Accordingly probationer, in a loss of a final revocation and preliminary is entitled to parolee, v. Brewer.” Morrissey specified under the conditions hearing, 1759-60; 782, see 411 at 93 S.Ct. at U.S. rpelli, Sca Davis, 84, Morrissey, 12 at 402 at 686. Va.App. S.E.2d following that required Court Supreme United States for a revocation process” “minimum of due requirements hearing provided: be

(a) [probation]; claimed violations of written notice of the him; (b) against of evidence [probationer] disclosure to the (c) wit- heard in and to opportunity person present to be (d) evidence; documentary right nesses and confront (unless hearing and adverse witnesses cross-examine con- good allowing cause not specifically finds for officer (e) hearing body a “neutral and detached” such frontation); board, of which need to be parole as a traditional members (f) a written statement judicial lawyers; officers or the factfinders to the evidence relied on and reasons for as revoking [probation], added).8 489, (emphasis

408 U.S. at 92 S.Ct. at 2604 Supreme the United States Court has stated “Specifically, hearings procedures ‘formal and rules of 804, 2004); States, (D.C.2004); Reyes Young v. United 863 A.2d 807-08 State, Wilcox, 438, (Ind.2007); v. 868 N.E.2d 440 n. 1 Commonwealth v. 1240, Divan, 61, (2006); 446 Mass. 841 N.E.2d 1247-48 State v. 724 865, Abd-Rdhmaan, 280, (S.D.2006); 870 Wash.2d N.W.2d State v. 154 Johnson, 1157, (2005); People 111 P.3d 1160-61 see also v. 121 Cal. 1409, 230, (2004); Cal.Rptr.3d People Turley, App.4th 18 232 v. 109 State, 1062[, 1025, (Colo.Ct.App.2004); P.3d 1026 Jackson v. 931 So.2d Palmer, 819, (Fla.Dist.Ct.App.2006); Kan.App.2d 1063] State v. 37 158 363, (2007); Michael, 109, (La.App. State v. 891 So.2d P.3d 367 114-15 Gonzalez, 1, 266, Cir.2005); (2007); Or.App. 2 157 267 State v. 212 P.3d 435, 680, (S.C.App.2006); Pauling, State v. 371 S.C. 639 S.E.2d 682 234, State, (Tex.App.2007))). Trevino v. 218 S.W.3d 238-39 Virginia Morrissey inexplicably language 8. cases that cite to omit the "(unless hearing good specifically not allow- officer finds cause for 489, 2604; Dickens, confrontation).” ing 408 at at 52 U.S. 92 S.Ct. see Commonwealth, 417, 550; Va.App. Copeland at 663 S.E.2d at 754, 756, 294, (1992). Va.App. 419 S.E.2d 789, 411 U.S. at 93 S.Ct. employed,’ Scarpelli, evidence are not 1763, hearings and that the of revocation ‘should be process at to consider evidence ... that would not be enough flexible trial,’ Morrissey, in an criminal 408 U.S. adversary admissible Dickens, Va.App. at 2604.” at 92 S.Ct. “Thus, evidence, normal- S.E.2d at 552. which would trial, ly may be inadmissible in a criminal be admitted into court’s hearing evidence a revocation based on the discre- tion,” 2604), (citing Morrissey, id. 408 U.S. at 92 S.Ct. at “specifically good circuit court cause not finds for if allowing confrontation,” Morrissey, 408 U.S. at 92 S.Ct. added). Supreme at 2604 Neither our Court nor (emphasis “good this Court have addressed what constitutes squarely in process right cause” for denial of the due confrontation many wrought by the wake of the changes v. Crawford 36, 1354, 124 Washington, 541 U.S. S.Ct. 158 L.Ed.2d 177 (2004), progeny’s and its construction of the Sixth Amendment Confrontation Clause.

1. Testimonial Evidence & Due to Right

Process Confrontation However, determining “good before whether cause” existed confrontation, to denying right excuse Henderson to we any process right must first determine whether due to con- in the applicable hearing frontation context of a revocation in testimony place—i.e. attaches to of Ortiz the first whether the evidence to sought presented be constitutes “tes- hearsay,” timonial which in the wake of the United States 36, in Supreme Crawford, Court’s decisions 541 124 U.S. S.Ct. 1354, 813, 823-26, and Davis v. 547 126 Washington, U.S. (2006) 2266, 2274-76, S.Ct. 165 L.Ed.2d 224 (holding applies only Confrontation Clause to testimonial hearsay after stating holding “suggested Crawford, was even if not held,” explicitly noting clearly limitation so reflected “[a] in the text of the constitutional provision fairly must be said to ‘core,’ merely perimeter”), mark out not its but its a predicate applicability right to the of confrontation — any Michigan Bryant, under circumstances. See also 381 (2011) (“We 1143, 1153, U.S. -, 179 L.Ed.2d 93 131 S.Ct. reach to testimo limited the Confrontation Clause’s therefore ” 68, at 124 Crawford, .... 541 U.S. (citing nial statements 1373-74)). at S.Ct. Dickens, “the Amend

As this Court noted Sixth than the rigorous right of confrontation is a more right ment in a revocation context because process requirement due full proceeding’ a ‘criminal and the hearing revocation is not apply [proba ‘does not to rights due defendant panoply ” 421-22, at at 552 Va.App. revocation.’ 663 S.E.2d tion] (alteration 480, at original) (quoting Morrissey, 408 U.S. 2600). Thus, if Amendment confrontation S.Ct. at the Sixth then it follows that only hearsay, attaches to testimonial right in a right the more due of confrontation process flexible only also attaches to testimonial hearing (“[I]n 417, at 550 order to hearsay. See id. S.E.2d process understand the Fourteenth due Amendment[’s] [im confrontation, begin must with a review of plicit] right we confrontation.”). explicit] right Sixth Amendment’s Crawford, Prior to 541 U.S. S.Ct. Ohio v. Roberts, (1980), 65 L.Ed.2d 597 448 U.S. S.Ct. juris- controlled the Sixth Amendment Confrontation Clause reliability” of an “indicia of prudence through application Roberts, In overruled Roberts. expressly test. Crawford Supreme specifically Court held for cross-examina- hearsay present

when a declarant is not trial, normally requires tion at the Confrontation Clause a then, that he is Even his statement is showing unavailable. only adequate reliability.” if it bears “indicia of admissible more in a Reliability can be inferred without case where In firmly hearsay exception. a rooted evidence falls within cases, excluded, at least absent a other the evidence must be showing particularized guarantees of of trustworthiness. words, In other prior 448 U.S. at 100 S.Ct. at 2539. if the Confrontation Clause was satisfied the wit- Crawford, hearsay and the statement was suffi- ness was unavailable to the rule ciently satisfy long-standing exception reliable to barring hearsay. 116, 125, 119 527 U.S. S.Ct. Lilly Virginia,

1894-95, (1999), Supreme L.Ed.2d 117 United States Court clarified what it meant it held that Roberts when hearsay firmly hearsay statements had to fall within “a rooted stated, The “a exception.” Supreme hearsay exception Court if, ‘firmly judicial rooted’ of light ‘longstanding [is] legislative experience,’ it ‘rests such solid foundation [on] [a] virtually any that admission of evidence within comports [it] ” with the ‘substance of the constitutional protection.’ Id. (alterations (internal 126, 119 S.Ct. at 1895 in original) cita omitted). short, practice, tions “Established confirm must falling category hearsay inherently statements within a ‘carry special guarantees of credibility’ essentially equivalent to, than, or greater produced by those the Constitution’s (citation preference for trial testimony.” cross-examined Id. omitted). concluded, Supreme The Court then “accomplices’ inculpate confessions that a criminal defendant are not within a firmly exception hearsay rooted to the rule concept as that has been defined in our jurisprudence.” Confrontation Clause Id. at 119 S.Ct. at 1899. Supreme

The Court then overruled so-called “indicia of reliability” test set forth in Lilly Roberts and v. Washington, 541 U.S. 36 S.Ct. [124

Crawford (2004), L.Ed.2d held that 177] [and] Confrontation applies hearsay Clause to testimonial and in order for such admissible, to be the witness must be unavailable and the accused must have had an for opportunity cross- examination. Id. at 68 S.Ct. at The [124 1373-74]. Court noted that the Confrontation Clause targeted specific “evil,” namely the “civil-lawmode of criminal procedure, and particularly parte its use ex examinations as evidence against accused.” Id. at 49 S.Ct. at [124 1362-63]. Court reasoned that protects Confrontation Clause because, against “testimonial” statements it only “applies words, against ‘witnesses’ the accused—in other those who ” at testimony.’ ‘bear Id. 51 S.Ct. at 2 (quoting [124 N. 1364]

383 English Lan- Webster, Dictionary An American (1828)). guage “The

Dickens, [Su at 551. at 663 S.E.2d Va.App. 52 are at statements testimonial Court stated preme] ‘[w]here satisfy sufficient to issue, reliability only indicium actually the one the Constitution demands is constitutional ” Commonwealth, 281 v. confrontation.’ prescribes: Crawford (2011) 541 Crawford, 115 (quoting S.E.2d 704 Va. 1374). 68-69, 124 at S.Ct. at U.S. — -, Massachusetts, U.S.

In Melendez-Diaz (2009), Supreme States 2527, 174 the United L.Ed.2d 314 S.Ct. Court noted testimoni- described the class of ] opinion

[o]ur [in Crawford fol- the Confrontation Clause as al statements covered of this core class of testimonial lows: formulations “Various testimony or its func- ex in-court parte statements exist: affidavits, is, custo- material such as equivalent—that tional examinations, testimony that the defendant was prior dial cross-examine, statements that pretrial unable to or similar proseeutori- to be used reasonably expect declarants would ... contained formalized ally; extrajudicial statements materials, affidavits, depositions, prior as testimonial such confessions; were made un- testimony, or statements that objective an der circumstances which would lead witness that the statement would be available reasonably to believe for at a later trial.” use 51-52, 124 at S.Ct. at (quoting Crawford,

Id. at 2531 U.S. (internal omitted)); marks and citations see quotation 97-98, (noting at 115 Crawford, also 281 Va. at S.E.2d provided by “core class of ‘testimonial’ statements” United 51-52, 124 Crawford, Court in 541 U.S. at Supreme States 1364). at S.Ct. accus- Crawford, Supreme provided Court “[a]n government

er a formal statement to officers bears who makes makes a casual remark testimony person a sense that who 51, at not.” 541 S.Ct. to an does U.S. acquaintance that, “[statements 1364. The Court went on to hold Supreme 384 by police

taken officers in the course of interrogations are also 52, testimonial under even a narrow standard.” Id. at 124 sum, S.Ct. at 1364. “In even if the Sixth Amendment is not solely concerned hearsay, primary with testimonial that is its object, and interrogations by law enforcement officers fall 53, within that squarely class.” Id. at at 1365. S.Ct. However, the Court did not Supreme by define what it meant in “interrogation” Crawford, provided but that use the “[w]e term ‘interrogation’ colloquial, its rather than any technical sense,” legal, and further that “one imagine can various defini ..., tions and we need not select among them in this case.” 4, 124 Id. at 53 n. S.Ct. at 1365.

The United Supreme States given Court was the opportuni- ty Indiana, 1213, Davis and Hammon v. 546 U.S. 126 S.Ct. (2006), 164 L.Ed.2d 131 to consider whether statements made to law enforcement personnel during 911 call and at a testimonial, crime scene were and specifically addressed what it meant “interrogation” when it required was “to deter- mine more precisely police which interrogations produce testi- Davis, mony.” 547 U.S. at 126 S.Ct. at 2273. In making determination, the United Supreme States Court further clarified what constitutes a “testimonial” statement: “Statements are nontestimonial when made in the course of police interrogation under objectively circumstances indicat- ing that primary purpose of the interrogation is to police enable assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Crawford, added) atVa. 704 S.E.2d at 116 (emphasis Davis, (quoting 2273-74). 547 U.S. at 126 S.Ct. at The United Supreme States Court explained that when it said Crawford

“interrogations by law enforcement officers fall squarely within hearsay, [the] class” testimonial we had immedi- us) (for interroga- that was the case before in mind ately crime, a past the facts of establishing at solely tions directed convict) (or evidence to identify provide in order to whether interrogation, of such product perpetrator. declarant or embedded by the writing signed to a reduced notes) officer, (and interrogating perhaps memory is testimonial. (alteration in

Davis, 826, 126 original) S.Ct. at 547 U.S. at 1365). Thus, 53, 124 at S.Ct. Crawford, U.S. (quoting ‘[tjhere was no if it is while given testimonial “a statement is for the of purpose in and is made progress,’ emergency relevant to potentially events ‘establishing] past or proving] 98, 704 at Crawford, criminal Va. prosecution.’” later Davis, (alterations (quoting in U.S. original) at 116 S.E.2d 2277-78). 829, 126 2273-74, at S.Ct. addressed recently Court most Supreme The United States in Bryant, Clause Amendment Confrontation Sixth how a court deter- expounded upon and further S.Ct. police interrogation of a “primary purpose” mines whether the to police that it was “to enable assistance objectively indicates In considering Id. at 1150. ongoing emergency.” meet an police a man made to the dying whether the statements of that, testimonial, noted “the most Supreme were Court in Clause re- instances which important [Confrontation] in are those the introduction of out-of-court statements stricts formal, in out-of-court inter- state are involved a which actors 1155. a evidence for trial.” Id. at rogation of witness to obtain However, explained, Court went on and Supreme

[w]hen, Davis, an purpose interrogation of primary as emergency,” purpose an its is not respond “ongoing is to to not the scope create a for trial and thus is within record But other may Clause. there be of the [Confrontation] a circumstances, emergencies, when ongoing aside from purpose of creat- procured primary is not with a statement testimony. trial In mak- substitute for ing an out-of-court determination, standard rules of purpose ing primary reliable, statements as identify some hearsay, designed exists, primary purpose relevant. no such will be Where a admissibility of statement is the concern of state and evidence, federal rules of not the Confrontation Clause.” Id. (emphasis original).9

In determining “whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render the resulting state nontestimonial, ments we objectively evaluate the circum stances which the encounter occurs and the statements and Davis, Id. at 1156 (quoting of the parties.” actions 547 U.S. at 2273). Davis, Hammon, S.Ct. at Unlike Bryant, the context in present case involves a detective apparently questioning witnesses at some point after two alleged occurred, already robberies had and there was no evidence any immediate threat to either the witnesses or (“Davis Id. the detective. and Hammon arose in the domestic Bryant, 9. Supreme the United States Court noted that there are [m]any exceptions other to the similarly [that] rules rest on are, nature, the belief that certain statements their made for purpose prosecution other than use in a and therefore should not be See, by hearsay prohibitions. barred e.g., Fed. Rule Evid. 801(d)(2)(E) (statement by co-conspirator during and in furtherance 803(4) (Statements conspiracy); Purposes Diag for of Medical Treatment); 803(6) (Records nosis or Regularly Conducted Activi 803(8) (Public ty); 803(9) (Records Reports); Records and of Vital Statistics); 803(11) (Records Religious Organizations); 803(12) of (Marriage, Baptismal, Certificates); 803(13) and Similar (Family Records); 804(b)(3) (Statement Interest); Against see also Melendez- Massachusetts, U.S. -, -, [2527], Diaz 129 S.Ct. 2539-40 314, ("Business (2009)] [174 L.Ed.2d public and records are generally admissible they absent confrontation not qualify because rules, exception under an because-having to the but been created for the entity’s administration of an affairs and not for the purpose establishing proving of or trial'—they some fact at are not testimonial”); [353], 376, California, Giles v. 554 U.S. 128 S.Ct. 2678 [2692-93, (2008) (noting L.Ed.2d 488 ] in the context of domestic violence that neighbors "[statements to friends and about abuse and physicians intimidation and statements to in receiving the course of excluded, all, only rules”); treatment would be by hearsay if at 56, Crawford, [1367, 541 U.S. at 124 S.Ct. 1354 158 L.Ed.2d 177] ("Most hearsay exceptions of the by covered statements that their nature example, were not testimonial—for business records or state ments in conspiracy”). furtherance of a at S.Ct. 1157 n. 9. a nondomes- face a new context: now violence context.... We location, public in a a victim found involving dispute, tic wound, whose perpetrator and a a fatal suffering gunshot from the victim. located police unknown at the time location was in which the time circumstances Thus, for the first we confront beyond an in Davis extends discussed emergency’ ‘ongoing police the responding threat to potential initial victim to a large.”). at public Hammon, entirely “[i]t Court held Supreme theAs interroga that the this case] from the circumstances [in clear criminal past into investigation possibly of an part tion[s were] 2278, 829, and thus Davis, at 126 S.Ct. at conduct,” 547 U.S. “ was ‘for interrogations purpose the primary potentially past events establishing] proving] or purpose ” 281 Va. at Crawford, prosecution,’ to later criminal relevant Davis, (alterations original) (quoting at 116 704 S.E.2d 2274). stated, challenged As at 126 S.Ct. at 547 U.S. that testimony case is a detective’s present evidence on, by to her included, provided information and was based alleged of two robberies during investigation her witnesses that were made under they had occurred—“ ‘statements after objective an witness reason would lead circumstances which at available for use that the statement would be ably to believe ” Melendez-Diaz, (quoting 129 S.Ct. at 2531 a later trial.’ 1364). 52, 124 541 U.S. at S.Ct. Crawford, crime that took on alleged place the first regard to With daughter his with the victim and spoke October Ortiz and after the after it had occurred by telephone days four preliminary investigation had done a full initial officers alleged robbery. On regarding order to obtain the facts 8, 2009, police come to the Ortiz was called to down October crime that had occurred alleged the second regarding station at the that met with the victim that and she stated she day, alleged home invasion day regarding police station individuals, in the it was spoke she with robbery. When crime investigating past officer setting police formal robbery purpose for alleged facts each seeking regarding Bryant, perpetrator. prosecuting apprehending 388

131 S.Ct. at 1160 is not the (“Formality sole touchstone of our because, primary purpose inquiry although formality suggests emergency absence of an and therefore an increased purpose likelihood that the of the interrogation is to ‘establish or prove past potentially events relevant to later criminal [Davis, prosecution,’ 2274], at 126 S.Ct. U.S.] [at informality does not necessarily indicate the an presence of intent.”). emergency or the lack of testimonial addition, the information was not provided during an ongoing emergency in order police to enable to meet emergency and to understand was happening; what but rath- er, the detective was seeking determine what had already occurred, and to preserve it for later use in connection with court proceedings. Crawford, 281 Va. at 704 S.E.2d at 116. Ortiz obtained the information from ex parte communication with the witnesses after the alleged robberies had occurred during investigation her of the alleged crimes—“the principal evil at which the Confrontation Clause was directed.” Craw- ford, 541 Further, U.S. at at S.Ct. 1363. Ortiz was “in engaged the more traditional law enforcement functions of crime,” observation and investigation of which anis adversari- Dickens, al setting. at Va.App. 663 S.E.2d at 551 (noting reports in Michels did not parte resemble ex “ communication because they prepared ‘were in a non-adver- sarial setting which the likely factors the percep- cloud tion of an official engaged in the more traditional law enforce- ment functions of observation and investigation of crime are ” Michels, simply present’ not (quoting 469-70, 47 Va.App. at 680)). Lastly, S.E.2d none of the “standard rules of hearsay, designed to identify some statements as reliable” are applicable to Ortiz’s testimony such that the “admissibility of [the] is the concern of state and federal statements] rules of evidence, not the Confrontation [and] Clause.” Bryant, S.Ct. at 1155.

Thus, we conclude that Ortiz’s testimony was testimonial hearsay, to which the limited Fourteenth Amendment due process right confrontation applies.

389 Exception 2. “Good Cause” of, “good and the standards to the relaxed turning In at to, applicable to confrontation right the exception cause” that a defendant is we note hearings, revocation probation adverse confront and cross-examine “right permitted (unless good hearing specifically witnesses finds officer ” Morrissey, 408 confrontation) .... allowing not cause for added). In determin 489, at 2604 (emphasis S.Ct. U.S. at 92 under the hearsay evidence to admit testimonial whether ing either of adopted other courts have exception, cause” “good at a admitted whether evidence determining methods two process the limited due hearing violated Reyes In v. and cross-examination. to confrontation right 438, (Ind.2007), Indiana State, Supreme 441 868 N.E.2d both methods: explained Court weighs test that one, balancing trial court a employs

In confronting against a witness interest probationer’s the witness. producing not the interests State (8th Martin, 840, 844-45 v. 382 F.3d E.g., United States Cir.2004). test, balancing required In the the State is denying for confrontation. See United good show cause (1st Cir.2005). Rondeau, 430 F.3d 48 States v. test, the trial court determines whether evi- another if a or it has a reliability, dence reaches certain level United E.g., of trustworthiness. guarantee substantial Cir.2006). (7th 446 Kelley, v. F.3d 692 States Morrissey, found in 408 U.S. at 92 S.Ct. requirement, 2604], cause” before “good that the trial court find 2593 [at explicit to confrontation an role denying right plays test; however, this performs balancing a trial court when Morrissey’s good requirement not mean that cause does test---- in the substantial trustworthiness not addressed incorpo- implicitly trustworthiness test substantial [T]he cause into its calculus. good rates 471, 485, Breeding, Mich.App. People See also 441). (2009) N.E.2d at (quoting Reyes, 868 N.W.2d Virginia expressly While has not adopted specific ap standard, proach, or test to be to determine applied whether confrontation, “good deny right cause” exists to Dickens, briefly Court discussed both tests Va.App. Dickens, 663 S.E.2d at 550. In this Court reviewed the right Sixth Amendment to confrontation in order to under stand the Fourteenth Amendment due process right to con frontation, “no found need to embrace balancing test [the] reliability since the long of official records has been estab lished,” hearsay and concluded the evidence—an affidavit that an nontestimonial, was official record—was fell the within hearsay official records exception, and was reliable. at Id. 419-20, 422-23, 551-52, 663 at S.E.2d 553. explicit While not ly which stating test the circuit courts apply must these situations, Court, dicta, implicitly approved the reliabili ty noted, test in Dickens when we “the United States Court of Appeals for the Fourth Circuit has held that evidence in probation admissible revocation if hearings it is sufficient ly 423, reliable.” Id. at 663 S.E.2d at 553 (citing United States McCallum, (4th v. Cir.1982));10 677 F.2d 1024 see also Turner Commonwealth, 739, 742, (2009) 665, 278 Va. 685 S.E.2d 667 (“Hearsay evidence has been held admissible federal proba parole tion and proceedings revocation where the evidence is Dickens, ‘demonstrably reliable.’ In [this reached a Court] similar conclusion in the context reliability of the of official (citations omitted)).11 records.” Dickens, question In the record in was an “affidavit subscribed to 10. by and ... sworn to the custodian of records for the Sex & Offender Against Registry Virginia Crimes Department Minors of the of State averring appellant registered Police registry____” had not with Thus, Va.App. any implicit 663 S.E.2d at 550. we note that approval reliability necessarily of the test in Dickens is dicta since thereof, official or business records or the lack such as those at issue in Dickens, ordinarily hearsay” do triggering not constitute "testimonial applicability right of confrontation in the first instance. assertion, Contrary Supreme 11. to the Virginia dissent’s Court of Turner, adopt reliability did not test in 278 Va. 685 S.E.2d 665. Turner, Virginia Supreme evidentiary Court addressed the admis- sibility, Clause, constitutionality not the under the Due Process of polygraph probation hearings, examination results and yet to States has of the United Supreme Court Although cause” “good finding for applied test process either due review found confrontation, have been both tests deny right constitutional current pass states various of our sister muster. Reliability

a. Test12 test, determines “the trial court reliability Under if reliability, or a certain level of reaches the evidence whether trustworthiness,” “the guarantee has a substantial it good implicitly incorporates test trustworthiness substantial (citations 868 N.E.2d at Reyes, calculus.” cause into its “long line of cases” that they based on held that held, are inadmissible " thoroughly to be of unreliable as ‘polygraph examinations are so the lie- evidentiary point of these cases is that proper use.... The no being wholly authority polygraph aura of while or has an detector " added) (quoting (emphasis 685 S.E.2d at 667 Id. at unreliable.’ Commonwealth, 191, 194, Va.App. 583 S.E.2d White v. “demonstrably (2003)). Supreme Virginia Court noted While the applied proceedings and the "similar in federal reliable" standard Dickens, disagreed it with the Commonwealth's reached in conclusion” be admitted under the polygraph test results should assertion that proceedings. Supreme Court "relaxed” standard in that, "[pjolygraph fall far short of the specifically test results stated may hearsay be admitted under 'demonstrably reliable' evidence standards,” a proceeded to cite the rule that but then those 'relaxed' " clearly evidence----”' admit inadmissible court no discretion to 'has Thus, (citation omitted). the evidentia- the focus of the decision was Id. polygraph upon lack of scientific ry admissibility tests based their constitutionality hearsay for reliability as admissible and not on their purposes. Confrontation Clause question applicability of may the continued 12. While it be reasonable Supreme reliability light States Court's overrul- a test in of the United noted, Crawford, previously we that the ing as observe of Roberts in a directly applicable outside of jurisprudence is not Sixth Amendment application merely guide setting, as a trial and serves hearings. right probation revocation available in limited confrontation addition, arguably Bryant Supreme Court's recent decision In analysis reliability in Sixth a even some semblance of resurrects (Scalia, Bryant, 131 S.Ct. at 1174 cases. See Amendment confrontation J., only gross dissenting) ("[TJoday’s a distortion of decision is not narrative gross of the law—a revisionist facts. It is distortion jurispru- guide our Confrontation Clause reliability continues to which dence, emergencies con- emergencies faux are where and at least added)). (emphasis cerned.” 392

omitted); 692; see 446 at Kelley, Crawford, also F.3d Jackson, 123, (D.C.Cir.2003); State, 323 F.3d 131 Hampton v. 179, 203 P.3d 184-85 (Okla.Crim.App.2009). “Hearsay evi- dence has been held admissible in federal and parole proceedings where the evidence is ‘demonstrably ” Turner, 742, reliable.’ 278 atVa. 685 S.E.2d at 667 (quoting McCollum, 1026). Chester, 677 In F.2d Curtis v. 626 F.3d (10th 540, “[ejxam- Cir.2010), 548 the court following noted the ples possess[ed] evidence indicia of recognized reliability”: (1) the conventional testimony substitutes for live (e.g., affidavits, (2) depositions, evidence), and documentary state- falling ments under an established exception to the hearsay rule, (3) statements by corroborated detailed police investi- (4) gative reports, statements by corroborated releasee’s own statements. 411 [Scarpelli], See U.S. at 782 5, 1760]; n. 190, 93 S.Ct. 1756 Berg, [at Prellwitz v. 578 F.2d (7th Cir.1978) (evidence 193 falling under the “business reliable); Jackson, record” exception is 323 F.3d at (evidence 130-31 by corroborated police observations investigative reliable); McCallum, report 677 F.2d at (evidence 1026 corroborated by releasee’s testimony is reliable). McCormick, (5th

See also United 214, States v. 54 F.3d Cir.1995) (concluding that “[substantial evidence enhanced the reliability of the information contained in the ... report”); Garcia, (9th Cir.1985) United States v. 771 F.2d 1369 (holding evidence reliable where defendant’s in-court statements sup- ported the evidence pled and he on guilty numerous charges before several different judges). United Lloyd, States v. (3d Cir.2009), 566 F.3d noted, the court oath, [h]earsay given Comito, under States [United v.] [1166,] (9th Cir.1999) ]; F.3d Crawford, [ 323 F.3d at detail, Bell, with replete United States v. 785 F.2d (8th Cir.1986); Crawford, 323 F.3d at or supported evidence, 692; Martin, corroborating Kelley, 446 F.3d at 846, F.3d has been recognized as reliable. Converse- ly, out-of-court reflecting statements an adversarial relation- accused, Comito, ship 1171, with the 177 F.3d at or contain- Fennell, 65 v. hearsay, United States layers of ing multiple 129, (10th Cir.1995); F.3d at Crawford, 323 812, F.3d as unreliable. recognized been have case, hearsay Ortiz’s to the facts turning her solely on crimes based alleged both testimony regarding to the level of not rise the witnesses does conversations with The hear admissibility. required for reliability demonstrable the that Henderson violated to establish statements used say exception to the firmly meet no rooted probation conditions of reliability. In addi their inherent hearsay implies rule that tion, speaking whether Ortiz was convey record does not the of the memory conveying the statements from her purely or her witnesses, utilizing report a police or whether she was reliability testimony. of her diminishing further notes thus Comito, (concluding that “[u]nsworn 177 F.3d at 1171 See are, type the least reliable allegations general, verbal (7th Pratt, 671, ”); ... v. 52 F.3d hearsay United States Cir.1995) testimony reliable the officer’s was (holding statements of the it was consistent with written because information). corroborating in addition to other victim incident, Ortiz with both regard spoke to the first With incident had days four after the daughter victim and his occurred, spoken had with and after both witnesses calls.13 regarding phone While person Henderson present any evi- contends that Henderson's failure “to 13. The dissent supports Commonwealth's evidence” further dence to contradict the hearsay testimony regarding reliability of the first incident. Ortiz’s any disagree apparent that Henderson had We with the dissent’s view prerequisite evidence as a burden to rebut the Commonwealth’s procedures receiving process protection. and rules due While "formal probation hearings, employed” in Scar- of evidence are not seeking was pelli, 411 U.S. at 93 S.Ct. at the Commonwealth probation of his revocation of Henderson’s and the execution sentence, persuasion previously suspended of a and thus burden throughout remained with the Commonwealth violation hearing any party seeking judgment other it with or relief. as does Hall, 67, 80, (1943) (“The 815-16 Hall v. 181 Va. 23 S.E.2d See propounder proving testamentary capacity is on the burden of throughout any question. upon him contest on will and continues Bonnewell, [(1933)]; S.E. 610 Good Dickens v. 160 Va. spoke Henderson with Ortiz and she testified that tells “[h]e basically thing,” me the same Henderson’s corroboration would to have been limited the fact that he had told the victim daughter and his that “he phone lends his to a lot of people and he remember who he loaned it to that day.” do[esn’t] While the rest of the victim’s to statements Ortiz were de- tailed the rest of the regarding alleged robbery and the actual committing individual the the robbery, only portion relating victim, regarding Henderson was the initial call to the phone and the fact that it came from cell phone. his crime,

In turning to the second alleged gave the victim his eyewitness testimony to Ortiz at the station at police some occurred, after the point incident the but record is not clear at addition, what point place.14 it took the information re the garding alleged home invasion robbery was not detailed. Ortiz testified that the victim informed her that subjects three door, door, knocked on his front entered the unlocked and stole personal some of his property. Ortiz stated that the subject victim told her number one had a and gun subject that number two was “Terrence” whom he had met a couple of weeks at the prior probation office. The victim then picked Henderson as one of the individuals out of a photos series of that Ortiz showed him. regard With to the second alleged crime, Henderson’s statement only to Ortiz corroborated that he knew one of the co-defendants and that he had been in the [(1923)].

Dyer, 137 Va. proof 119 S.E. This burden of is not producing to be confused with the burden of evidence. That burden frequently passes trial, party party during progress from the aof but necessity proving always upon plaintiff of his case rests Tritton, Riggsby never shifts. 143 Va. 129 S.E. 45 A.L.R. Therefore, [(1925)].”). any suggestion by the dissent Henderson’s failure objected to rebut the evidence he to in the first place reliability nothing somehow shows its constitutional less than improper shifting persuasion an burden from the Common- wealth to Henderson. phone 14. Ortiz night my testified that she “received a call at at house to investigate robbery” come in to a home invasion and that she "came to station, 8th, that was October met with the victim." She later robbery place testified that the home invasion night.” took “around 11:00 investigation in the which some of vehicle that was involved by police. was later discovered property the stolen made were statements to Ortiz Because out-of-court excep- rooted by satisfying firmly reliable inherently neither rule nor were the statements corroborated tion to hearing, at the revocation presented other evidence by Ortiz does not rise to level hearsay evidence offered demonstrably right reliable that Henderson’s limited being so should have hearing to confrontation a been denied. Balancing

b. Test test, the Alternatively, balancing under the court confronting the interest a witness “weighs probationer’s the the in not the wit against producing interests of State ness,” for required good and the “State is to show cause (citations N.E.2d at 441 denying Reyes, confrontation.” 868 omitted); 344-45; 566 v. Lloyd, see also F.3d at United States (2d Williams, Cir.2006); 35, 443 F.3d United v. States (1st Taveras, Martin, Cir.2004); 380 F.3d 382 F.3d at Comito, 846; 177 F.3d at 1171-72. assessing probationer’s the interest confront witness,

ing confrontation, every the to although right releasee has static, right greater significance is not but is of or lesser Martin, depending on the circumstances. States [United v.] (9th Cir.1993) [308,] weight 984 F.2d 310-11 to be [ ]. the in a given right particular depends to confrontation case hearsay on two factors: the of the primary importance finding evidence to the court’s ultimate and the nature of id. at proven by the facts to be the evidence. See emphasized, significant 311. As the Martin court “the more particular important evidence is to a the more it is finding, given that the releasee be an to demonstrate opportunity ” proffered that the evidence does not reflect Verified fact.’ So, too, accuracy the subject question Id. the more to evidence, the releas- reliability proffered greater right it his to confron- testing by exercising ee’s interest tation. However,

Comito, 177 F.3d at 1171. in con- the defendant’s interest balancing process, [i]n little, if any, weight is entitled to fronting the declarant intimidation declarant’s absence is the result of where the procured a defendant has by the defendant: Where threats, ... chicanery, by ... unavailability “by declarant’s murder,” or the defendant is deemed or actual violence and, fortiori, rights have “waived his sixth amendment of the declarant’s hearsay objection” his admission statements.

Williams, Mastrange (quoting 443 F.3d at United States (2d denied, lo, Cir.1982), cert. 467 U.S. 693 F.2d 272-73 (1984)). L.Ed.2d 343 104 S.Ct. “In assessing government’s position, consider, first, explanation government should ‘the [court] why impracticable’ offers of confrontation is undesirable or and, second, govern of the evidence reliability ‘the which ” Martin, testimony.’ offers in of live 382 F.3d at place ment “ 643). Bell, government 845 785 F.2d at Where the (quoting producing testimony that the burden of live demonstrates place hearsay and in its evidence would be inordinate offers reliable, demonstrably strong showing that is it has made a of ” Bell, 643). F.2d at good (quoting cause.’ Id. at 845 785 “ Where, hand, government on the other ... the neither testimony unreasonably shows that live would be presenting nor offers evidence that bears indicia of hearsay burdensome ” reliability, probationer is entitled to confrontation.’ Id. 643). Bell, at 845 785 F.2d at (quoting confronting Henderson’s interest in the witnesses was “ ‘detailing in high that the nature of the statements was ” specific wrongdoing criminal of defendant’ crimes Dickens, in. 52 at any Va.App. he denied involvement Commonwealth, at 551 (quoting Jasper 663 S.E.2d 749, 755, (2007)); see also McCor Va.App. 644 S.E.2d (“It mick, follows, therefore, that a releasee’s 54 F.3d at in cross-examining laboratory regarding interest technician interest, for example, a scientific fact is less than would be his declarant what the declar- confronting regarding ant have The truth the former can verified may seen. of be science; through methods of the truth of the later can be best cross-examination, through rigor verified conducted court.”). under circumspect eye of the district law, charged obey Henderson was with failure to failure behavior, arrest, to be of and an general good report failure to hearsay testimony any thus the was important finding with to the respect alleged testimony violations. Ortiz’s was a detailed recitation of the facts to her given unsworn Comito, verbal allegations alleged of witnesses of two crimes. (“Unsworn are, 177 F.3d at 1171 verbal allegations general, hearsay____”). only the least reliable type other in the supporting testimony evidence record Ortiz’s was alleged Henderson’s corroboration of what he told the victim daughter regarding of the first crime and his his phone—that he phone people, lends his to a lot of and he could not Further, remember whom he had loaned it to that while day. trial, Henderson’s mother testimony testified her of the regarding facts where was on night Henderson alleged second crime was adverse to both Henderson’s and testimony, Ortiz’s and there is no additional evidence in the record corroborating testimony regarding Ortiz’s the wit- Curtis, nesses’ statements she testified to. at 547 F.3d (“Because the credibility of the victim’s statements sup- are sources, ported by other Curtis has a diminished interest those testing through statements confrontation.” (citing Comi- 1171)). to, Thus, 177 F.3d at the hearsay testimony was indisputably important to the circuit finding court’s of a violation.

In turning any interest on the part of the Commonwealth accusers, in denying opportunity Henderson an to confront his the did not prosecution why meet its burden of it establishing should be excused from producing the adverse witnesses for cross-examination, demonstrably nor is the evidence reliable previously as in discussed. There is no evidence the record good attempt faith any made

that the Commonwealth in them court. produce witnesses or otherwise subpoena the the addition, in the record that In there is no evidence Id. at they could not be located. had moved or witnesses (“In contrast, for not ‘good the cause government’s 547-48 confrontation,’ 408 U.S. at 92 S.Ct. Morrissey, allowing located.”). 2604], could not be was that the victim 2598 [at merely informed Ortiz that he alleged victim The first knew his charges people to file because “really didn’t want in they live neighborhood, all were daughter, they This does they knew where he lived.” neighborhood, the same interest overcoming the level of Henderson’s not rise to witness, why is it evidence as to confronting the nor daughter victim or his produce Commonwealth could not testified that she hearing. at Ortiz and his who alleged the second victim mother met with were scared of retaliation. See testify they refused to because Williams, However, the evidence of only 443 F.3d at 45-47. in the involved the second victim’s mother retaliation record gunshots that she had heard around her who informed Ortiz it her. Ortiz day really house the before and that scared that she had heard one of the other individuals testified girlfriend gun in the second crime and his refer to involved conversation, in a but there was no information telephone link establishing any the circuit court between provided to Henderson, to, gunshot referred and the heard near gun the house. short, by

In no the record reflects reason advanced governmental Commonwealth as to what interest was served Thus, against the witnesses Henderson. producing not who confronting spoke Henderson’s interest witnesses the interest of the Common- necessarily outweighed with Ortiz case, them. the Common- producing wealth not process right neither Henderson’s due wealth satisfied adequately him nor against confront the adverse witnesses (“Instead Curtis, 626 justified its failure to do so. F.3d statements, ability to test the victim’s hindering Curtis’s it.”). Thus, much as it could to facilitate government did as not, not, court therefore did balance the circuit could and in him confronting against Henderson’s interest the witnesses in against any may interest the Commonwealth have had denying right. Henderson that

III. CONCLUSION above, although reliability As discussed the test has been by found some courts to the minimum satisfy requirements of Clause, many pre-date Due Process of those cases jurisprudential change sea wrought by Washing- Crawford Thus, ton and progeny. although its the circuit court would necessarily not have it applied reliability erred had test to Ortiz, the testimony of we think that the balancing ought test to be the in preferred test utilized the courts of the Common- unless, wealth since it requires confrontation ab initio and until, provides the Commonwealth a reason sufficient to out- weigh an in accused’s interest and confronting cross-examin- ing against evidence him. Put differently, we hold that in interest, non-trial proceedings involving an accused’s liberty an approach requires the Commonwealth to explain and justify its failure to provide confrontation considering before the evidentiary admissibility of any hearsay testimonial more consistent with the overall purpose of both Morrissey, which requires an opportunity confront testimonial hearsay as the default position for due any process analysis, and the analytical framework in post-Roberts found cases of Craw- Davis, ford, Melendez-Diarz, above, and Bryant. As discussed all what of these cases they have common is that require more than mere considerations of reliability permitting the use of hearsay testimonial in a trial setting, and thus we think test balancing is more faithful to current confrontation jurisprudence in the providing context of due process a non- trial proceeding involving a liberty interest.

However, event, in any in this case the circuit court did not apply either in overruling objection test Henderson’s to Ortiz’s Thus, testimony. the record before us “good fails to establish cause” for denying Henderson an to confront opportunity him, cross-examine the witnesses against and therefore the evi- admitting testimonial circuit court erred dence offered Ortiz. the circuit reasons, judgment we reverse

For these hearing court, for a new and remand if is so ad- opinion with this the Commonwealth consistent vised. remanded.

Reversed and

HALEY, J., dissenting.

I dissent. respectfully

I. INTRODUCTION hearsay for resolution is whether testimonial The issue here probation for admission a revoca sufficiently was reliable Brewer, 471, 489, Morrissey v. 408 U.S. hearing.15 tion Under 2604, (1972), 2593, for of due 92 33 L.Ed.2d 484 reasons S.Ct. hearing in a has a defendant process, and cross-examine adverse witnesses right “the to confront (unless good officer finds cause for not hearing specifically the confrontation).” developed Courts have two tests to allowing Virginia adopted whether cause exists. has a good determine if hearsay sufficiently that admits it is reliable. reliability test appreciate majority’s analysis one the of Craw might While 36, 1354, 124 158 L.Ed.2d Washington, v. 541 U.S. S.Ct. ford trials, (2004), 177 in the context of criminal applicable as I would analysis bearing proceedings. has no on revocation hearsay properly here was admissible under hold that existing Virginia jurisprudence. FOR DETERMINING

II. TWO STANDARDS HEARSAY IS ADMISSIBLE WHETHER evolved majority two standards have acknowledges, As in a revocation determining admissibility for of challenged deciding evidence was 15. I will without that the assume hearsay.” "testimonial

401 As balancing will be reliability test and test. hearing: reliability later, has test. Virginia adopted shown test, balancing weighs a court a defendant’s Under the particular gov- a witness confronting against “interest in it, focusing for on denying particularly ernment’s cause good reliability given hearsay indicia of of statement.” Unit- (5th McCormick, Cir.1995); 221 see F.3d ed States v. (2d Cir.2006). Williams, 443 F.3d also United States v. test, a court “allows the admission of reliability Under the showing cause for the declar- hearsay evidence without of sufficiently if the reliable.” Curtis v. ant’s absence evidence is (10th Cir.2010). Chester, F.3d Reliable evidence having as under this test has also been described evidence guarantees Egerstaffer “substantial trustworthiness.” Israel, (7th Cir.1984). 726 F.2d “The [Supreme] good showing Morrissey Court established the cause limit the use of unreliable evidence at revocation substantive However, if the itself hearings. proffered evidence bears trustworthiness, substantial then the need to guarantees good explained show cause vanishes.” Id. Another court hearsay represents evidence substantial trustworthiness State, v. good testimony. Reyes for not live producing cause (Ind.2007). 438, words, “In if reli- 868 N.E.2d 441-42 other presented, good requirement the cause is hearsay able 685, 441 Negron, v. Mass. 808 satisfied.” Commonwealth (2004). 294, N.E.2d 300 in determining

Courts have considered number of factors hearsay Courts are often con- whether evidence is reliable. hearsay. whether other evidence corroborates the cerned with Rondeau, (1st Cir.2005); 44, v. 430 48 United States F.3d Martin, (8th Cir.2004); 840, v. F.3d 846 United States 382 reliability 726 at 1235. of Egerstaffer, F.2d Another indication detailed,” “a full “quite providing fairly is that evidence is Jackson, circumstances.” of v. F.3d account 323 Crawford (D.C.Cir.2003); Chin, 123, 224 130 see also United States v. (2d 121, Cir.2000); Egerstaffer, F.3d 124 726 F.2d 1235. corroborating are admissions from the defendant Also relevant 402 to present failure of the defendant hearsay, the challenged hearsay. within

evidence, and internal corroboration reliability possess less F.3d at 130. Statements Crawford, 323 between the relationship an adversarial they come from when it, who made person statement and the reporting the person (8th Bell, 640, Cir.1986), 644 when 785 F.2d States v. United statements,” v. Miss. Farrish “self-serving they represent (5th Cir.1988), Bd., 969, or when Parole 836 F.2d State hearsay, Lloyd, United States v. levels of they multiple contain Cir.2009). (3d 341, 345 566 F.3d III. THE LAW IN VIRGINIA hearsay of evidence admissibility This Court considered context Dickens v. Common- in the revocation probation (2008). wealth, 412, There Va.App. 663 S.E.2d an affidavit from an official that evidence consisted of hearsay as a sex offender between registered the defendant had not at 550. While dates. Id. at S.E.2d specified reliability admission based on “the upheld the affidavit’s Court records,” it noted that “the United States Court of official has held evidence is for the Fourth Circuit Appeals sufficiently if it is probation hearings revocation admissible (citing at 553 United States v. reliable.” Id. at 663 S.E.2d Cir.1982)). (4th McCallum, 677 F.2d 1024 evaluated the standard for admit- Supreme Our Court later hearings revocation Turner ting hearsay during probation (2009). Commonwealth, 278 Va. 685 S.E.2d admissibility polygraph test results. issue concerned 666. The stated that “[hear- Id. at 685 S.E.2d at Court admissible in federal say evidence has been held where the evidence is ‘demon- proceedings parole ” 742, (quoting 685 S.E.2d at 667 strably reliable.’ Id. 1026). McCallum, The Court then held that 677 F.2d at ‘demonstrably fall far short of the test results “[polygraph may during pro- that be admitted” hearsay reliable’ evidence 743, In Id. at 685 S.E.2d at 667. hearings. bation the standard from McCal- holding quoting while making lum, plainly adopted the Court the McCallum standard of admissibility. McCallum, applied reliability the court standard. objected hearsay defendant to the admission of evidence

in the form of a report employees from two of the center he was sent to his release from upon incarceration. 677 F.2d at report 1025. The detailed poor numerous instances of conduct defendant, by the and the defendant admitted most of these. Id. In considering the defendant’s to confront the re- right authors, port’s the court “permit- noted that other courts had ted introduction of ‘demonstrably reliable’ evi- dence in probation revocation Id. proceedings.” at 1026. The court then held: “The record discloses that the letter from the ... center was reliable evidence. It was in the nature anof official report to United States probation officer Atlanta from the center’s federal program coordinator and its counsel- reliability or. The of the report was also by established McCallum’s testimony....” Id. McCallum has been cited as Curtis, applying reliability standard. 626 F.3d at 545. In addition to the that a principle decision of the Supreme Virginia Court, Court of is controlling on this we are further bound by the rule of interpanel accord. That rule mandates that the “decision of one panel becomes a predicate for application of the doctrine of stare decisis and cannot be overruled except by the Court of Appeals sitting by en banc or the Virginia Supreme Reed, Court.” Coal v.Co. Clinchfield 69, 73, (2003) (internal 40 Va.App. 577 S.E.2d quota- omitted); tion marks Congdon see also v. Congdon, 40 Va.App. 255, 265, (2003). 578 S.E.2d

It my position majority does not comport with Rather, these principles. the majority holds a trial court does not test, err applying reliability but “the balancing test ought preferred to be the test.”

Appellate courts make decisions in part guide “as for the Thomas, trial courts.” Realty Oak Knolls Corp. 212 Va. 396, 397, (1971); 184 S.E.2d see also Smith v. Commonwealth, 351, 367, 56 Va.App. 693 S.E.2d

(2010) J., (“Fortunately, Supreme the (Petty, dissenting) so as to [jurisdiction] ... defined the term expressly Court bar....”). the bench and guide both reliability neither the test nor the majority adopts The in inconsistent deci- balancing holding test. This will result in A defendant convicted one throughout Virginia. sions in the test will be released jurisdiction reliability that uses if the fails to balancing prosecutor another that uses the test confrontation, even both denying though offer a reason for may adopt In declining cases involve the same evidence. test, majority either the offers little direction to counsel or the trial court. NON-APPLICABILITY OF CRAWFORD

IV. majority balancing The finds the test preferred part analytical because it more consistent with the ... frame “is However, majority work found in” as previous the Crawford. ly acknowledged, jurisdictions that have decided the “[o]ther question appear to be unanimous that does not Crawford change process proba the due standard for confrontation Rose, State hearing.”16 tion revocation Idaho spite unambiguous topic, In nature of case law on this 16. majority inapplicability laments of and tries to make it Crawford seven, application majority correctly have as a theme. In footnote afterward, however, acknowledges apply. that not does Soon Crawford majority Virginia "squarely notes that courts have not addressed 'good process right what constitutes cause’ for denial of the due many changes wrought by confrontation in the wake of the Crawford.” majority’s The earlier footnote would seem to make clear there were no twelve, changes majority questions such in this context. In footnote why apply acknowledging does not while also this to be the Crawford case, stating may question applicabil- "it be reasonable to the continued ity reliability light of a test in of ... ... we [but] observe Crawford directly applicable setting ... ] is not outside of trial and [Crawford above, merely guide.” serves as a For reasons discussed Crawford section, "guide.” not even a In the conclusion for the first Crawford "jurisprudential change.” majori- time becomes for this case a sea ty suddenly balancing persuasive part finds the test because of "the analytical post-Roberts Crawford, framework found cases of Davis, Melendez-Diaz, Bryant.” Although a conclusion section merely summary prior analysis, majority serves as a makes law in cases). (2007) “says numerous (citing P.3d Crawford when, denied. whether, may be or confrontation nothing about announced requirements due process The minimum short, at 259. good are still law.” Id. Morrissey Court in in the context of jurisprudence the “current confrontation involving a proceeding due in a non-trial providing process (to majority’s language) use the is Craw liberty interest” apply.17 does not ford assertions, is neither a majority’s the

Contrary to Crawford in change.” “Nothing sea “guide” “jurisprudential nor a trial, to alter purported which reviewed a criminal Crawford, ... Morrissey suggested or otherwise the standards set in enunciated Craw- principle that the Clause Confrontation proceedings.” to Unit- applicable ford (2d Cir.2004). 332, There 389 F.3d Aspinall, ed States to extend the Sixth is “no basis or elsewhere Crawford release supervised pro- Amendment of confrontation to right (9th Hall, F.3d 985-86 States v. ceedings.” United Cir.2005). Curtis, context

In the court considered the revocation the apply the and whether to applicability both Crawford the reliability balancing Regarding test or the test. Crawford apply, noting held that case did not challenge, simply the court expressly the circuit courts that have considered “[a]ll obviously analyzed. majority While the its conclusion that was never case, majority apply, simply the to this is not the and wants Crawford attempt application to conceal its of it. should not context, sentencing recently the Fourth Circuit wrote: 17. require decisions do not us to recon- Recent Confrontation Clause sentencing and sider this settled distinction between trial evidence beginning with evidence in the context. In a line cases nnn Supreme Court has held that the Confrontation Crawford generally hearsay at trial bars the use of testimonial unless Clause testify prior available and the defendant had a declarant is not to nothing opportunity But in these cases states to cross-examine him. indeed, sentencing; they sug- right applies that the confrontation gest precisely opposite. Powell, 09-4012, No. 650 F.3d 2011 WL United States v. omitted). (4th 2011) (citations May Cir. at *3 then considered 626 F.3d at 544. The court agree.” issue balancing Although or test. apply reliability whether to decide which test ultimately unnecessary court found it to testimony was under disputed to use since the admissible either, notably analysis it in its of both tests did not mention simply That Id. at 545-46. was because Crawford Crawford. did not Id. at 544. apply.

Likewise, Reyes, considering the court whether to reliability proba- or test stated: “Because apply balancing trials, are not criminal the United hearings tion revocation Court’s decision on the Sixth Amendment Supreme States implicated to confrontation in criminal trials is not or right n. discussed here.” 868 N.E.2d at 440 1. The court went on to without further mention of adopt reliability test Crawford. may application proba- be said to have limited to Crawford proceedings. process right tion revocation Since the due than right confrontation is more limited the Sixth Amendment says right applies only the Sixth Amendment Crawford then due hearsay, process right only testimonial must also Dickens, hearsay. to testimonial at apply Va.App. However, S.E.2d at 551. did not alter the due Crawford confrontation, test for whether that process denying is reliability balancing subject or test. Case law on the unanimous.

Thus, may I find it to difficult fathom how serve Crawford guide importance majority as a or have the enormous simply apply attaches to it. does not here. Crawford V. OTHER COURTS’ APPLICATION RELIABILITY

OF STANDARD proceeding analyze Before to facts of this case under the standard, reliability it is useful consider how other courts reliability have standard under similar facts. applied In Crawford, parole 323 F.3d court affirmed a A solely police investigative report. revocation based on complaint aggravated woman’s led to Crawford’s arrest for At a parole hearing, single police assault. Id. (also Crawford) drug by the incident use report relating of and was revoked based on it. Id. at 124- parole was admitted appeal, arguments 25. Crawford raised similar as On case, police the “exclusive reliance on the investi- challenging unsworn, ... gative report prepared inasmuch as it is months events, after and not apparently relevant consisted personal observations or with the com- author’s conversations plainant but instead was a of an affidavit summary prepared another 127. by police officer.” Id. at Crawford also noted charge prosecuted the assault was never and his arrest expunged. record was Id. at 127-28. spite the minimal amount of evidence and that Craw- prosecuted,

ford was never the court found the police report sufficiently parole. Enunciating reliable to revoke the reliabil- standard, ity the court hearsay stated that evidence could be upon relied where it “sufficient indicia possessed reliability under the protect circumstances at hand to the prisoner’s due process First, Id. at rights.” 129. the court noted the report detailed, was “quite reliability.” an indicia of Id. at 130. Second, the important court found that Crawford did not dispute Third, a large portion of the relevant facts. Id. court report stated the contained internal corroboration including information from sources other than the complain- ant. Id. A responding officer observed evidence inconsistent with story Crawford’s explana- Crawford’s “far-fetched tion” gave cause for the “reasonable Board doubt his denial Fourth, of culpability.” Id. Crawford failed to present any evidence contesting guilt. his Id. Finally, multiple claimed levels of were significant not under the facts of the case. Id. at 130-31.

Another case demonstrating application of the reliability (7th standard is Kelley, United States v. 446 F.3d 688 Cir. 2006). There an responded officer to a scene for a report about person gun. with a Id. at 689. The victims told the officer Kelley had punched displayed them and a rifle he retrieved from the trunk of his car. Id. 690. The officer observed Later, that one of the victims had a broken tooth. Id. officer Kelley’s searched vehicle and discovered a rifle. Id. incident knowledge of the personal the officer lacked

Although victims, their account at related he testified about Kelley in violation of and the court found hearing Kelley argued Id. the trial supervised appeal, his release. On hearsay Id. admitting erred in the victims’ statements. court standard, affirmed, the court reliability at 692. Applying indicia of relia- “bore substantial holding victims’ bility” personal since evidence and officer’s physical “[t]he ac- investigation observations and corroborated the [victims’] Id. cusations.” RELIABILITY

VI. APPLICATION OF IN THIS CASE STANDARD hearsay testimony I of Detective Ortiz concern- believe ing sufficiently the two incidents was reliable for admission. Each incident will be discussed turn.

Attempted Robbery Incident way possesses reliability The first this incident is that it Lloyd, contains a detailed account to Detective Ortiz. given 345; 130; Crawford, Egerstaffer, 566 F.3d at 323 F.3d at spoke daughter. F.2d at 1235. Ortiz to both the victim and his phone The victim related how he received a call from an unfamiliar number. The caller to be from the pretended requested go sheriff’s office and the victim to to the office to family documents about a member. the victim did sign When exit, immediately phoned again. not the caller him Upon leaving, ciga- a man the victim and asked for a approached victim, attempted bag rette. The man then to take a from the but as The victim was unsuccessful the victim resisted. to the He reported police. subsequently incident received more calls to be from the office. purporting sheriffs When number, his to see the she realized it was daughter requested phone daugh- number for Henderson. The victim and his Henderson, spoke phone ter with who told them “he lends his to a he did he it people” lot not “remember who loaned day.” to that

409 the victim what Second, story corroborated Henderson’s 130; at Crawford, 323 F.3d daughter reported. and his spoke with McCallum, Detective Ortiz F.2d at 1026. 677 incident, related “basi and Henderson Henderson about victim and his had told the thing” as he cally the same interview, stated “that Henderson another daughter. During on his it miraculously appeared was stolen phone his corrob do not these statements days later.” While porch two daugh and his of the victim story remainder of the orate the to establish ... corroborated ter, detail need be every “[n]ot Farmer, 343, F.3d v. 567 States reliability.” United Cf. Cir.2009). (8th 348 cause to doubt

Third, gave ample Henderson’s statements Crawford, 323 F.3d culpability. his credibility and believe his 696, Commonwealth, 604 130; 268 Va. also Covil v. see (2004) (“A a circum- evasive account is false or S.E.2d scene, that a fact-finder stance, from a crime flight similar to knowledge.”). of guilty as evidence may consider properly involve- regarding his recounted different stories Henderson phone he had loaned his He told the victim and Ortiz ment. it. who borrowed but did not remember day question, on the had stolen his time, Henderson told Ortiz someone At another porch days on his two incredibly “appeared it phone, but espe- accounts and The inconsistencies Henderson’s later.” magically disappearing/reappearing his cially story his about ... to doubt his denial “reasonable cause provided phone F.3d at 130. Crawford, 323 culpability.” to contra- Fourth, any evidence present Henderson failed at 130 Crawford, 323 F.3d evidence. dict the Commonwealth’s pres- the obvious incentive to “despite (finding important evidence, any not call did [the defendant] ent supporting testimony to than his own present or evidence other witness Waters, events”); States v. his version of United support (6th Cir.1998) that while the (finding relevant F.3d inability to cross-examine argued his defendant establishing from his broth- the defendant prevented declarant conduct, no “presented the defendant illegal participated er initiated rather than he that his brother suggesting evidence Minnitt, contact”); 617 F.3d see also United States (5th Cir.2010) that the defendant (noting finding reliability evidence”).18 knew the identi any “failed to offer Henderson daughter. Crawford, the victim and his 323 F.3d at ties of contacted him. allegations 130. He knew of the since Ortiz Rather, evidence. present any contrary Yet he failed to have used his person Henderson admitted another could phone attempt robbery. to

Fifth, that with the victim and his spoke it is notable Ortiz fact, In the victim and daughter soon after incident. his already reported police had the incident to officers. daughter Herron v. quick report supports reliability. Their Com- Cf. (1967). monwealth, 326, 330, 195, 157 208 Va. S.E.2d 198 Finally, daughter subject the victim and his would be to if liability they report police. criminal made a false to the § reliability. Code 18.2-461. This increases their Beckner See Commonwealth, 533, 535, 530, v. 15 425 S.E.2d 532 Va.App. (1993). majority’s cursory

The the factual analysis reliability of of significance this incident diminishes towards exclusion the of Moreover, the facts described above. while the majority days believes four apparently attempted robbery between and the interview with represents long period Ortiz a of time diminish, period for the witnesses’ memories to that enhances (30 Gratt.) 415, reliability. v. 71 Page Clopton, See Va. (1878) after a (holding period days of five “the facts were that firmly impressed no doubt on mind and his fresh his recollection”); Androvett, see also v. People 135 A.D.2d (“The 522 N.Y.S.2d 220-21 (N.Y.App.Div.1987) lineup was days conducted within four of the crime while witness’s fresh____”); State, v. memory was still Jackson 338 So.2d Contrary majority's position, 18. I to the do not contend Henderson had any obligation present to The evidence. burden was on the Common- prove reliability present wealth to of the evidence. A failure to obviously prove reliability. evidence Henderson would suffice not However, may case law makes clear such a failure be considered as a tending reliability. majority factor to bolster The not address does case law. (“In the victim the fact that view of (Fla.Dist.Ct.App.1976) later while days ... nine only her assailant herein observed for doubt that fresh, there is little room still memory her was correct”). majori was of the defendant the identification the victims’ a large portion that persuasive also finds ty fact, that not concern Henderson. did statements Henderson tends concerning limited their statements victims did not deliber they it shows credibility their since to enhance Henderson. implicate their statements ately structure Cf. 248, 78 Cal.App.4th City Angeles, Los Monroy (2008) “credibility may be (stating Cal.Rptr.3d plaintiffs expert agrees with when a defense enhanced expert”).19 test, Assuming balancing applicable I would likewise test is the

19. admissible, challenged testimony in accord of this incident hold the following analysis. with the test, government's balancing a court evaluates whether the Under the outweighs interest in denying a defendant's interest in confronting Cir.1999). confrontation Johnson, (5th v. 184 F.3d a witness. Barnes analysis. principal Reliability "a factor” in this constitutes Lloyd, 566 F.3d at 345. outweigh right the particular "Whether a reason is sufficient cause depend strength reason in relation to will on the of the to confrontation Comito, right.” significance releasee’s United States the of the (9th Cir.1999). recognized that a declar- F.3d “Courts have against may good testify made a declarant be ant's refusal to or threats hearsay.” Lloyd, justify the admission of cause for his absence and unavailable, a court at 346. Where it is clear that a witness is F.3d simply applying balancing determine whether the evi- the test should Farmer, at 347. dence is reliable. 567 F.3d adequate government reasons considering whether the had shown In testify, persuasive are producing victims of this incident to for not the corroborating the victims’ accounts and the Henderson's admissions testifying. of retribution for fear Bell, police reports the court held admission 785 F.2d partially presence proper where the defendant without the officers’ police reports reports. detailed an occasion corroborated the The intoxicated, possessing driving police arrested Bell for while where marijuana, possessing paraphernalia. Id. at 642. Bell narcotic and driving public highway the middle of the was on a admitted "that he on, drinking.” night lights Id. at 644. and that he had been without his intoxication, drinking acknowledging establish the that does not While admitting justify police sufficient to court found this corroboration light of “all of Id. The court held that in reports without confrontation. concessions, we Bell’s own are reports and ... the force of these by purpose would have been served morally substantial certain no by presence.” court continued requiring personal Id. The the officers’ Home Invasion Robbery Regarding incident, the second the victim told Ortiz that several men came to his door at night and knocked on stating simply repeated that the officers "would have what is in the reports, and none of the contentions made Bell at his revocation hearing indicates that he would have been able to shake their account any way.” in apparently spite substantial Id. This was also in of the fact that Bell concerning made no drugs. admissions his arrest for Id. Jones, (2d Cir.2002), In United States v. 299 F.3d 103 the court held it proper to consider fear or risk of retaliation under circumstances supervised relevant to this case. been having Jones was on release after partaking racketeering enterprise. convicted of ain Id. at 105. officer, Through hearsay testimony government presented of an standing evidence that doorway Jones had been apartment in the of an building masturbating making while and sexual remarks to a fifteen- year-old girl. hearsay Id. at 107. The declarants were wife of the young girl. officer girl and the Id. The told the officer "she was scared” from the day, incident. Id. After Jones was arrested that he told Okay. get you.” the officer "it's not over. I'll assessing Id. In government presented whether the frontation, denying sufficient reasons for con- regard the court found eyewitnesses, "with to both Jones’s history of violent reprisal against conduct made possibility.” them Id. at 113. incident, respect With to this Henderson’s justified admissions alone hearsay. the admission of Henderson only part hearsay concerning of the phone up was the use of his attempted to set robbery, possible. Although which he admitted was this does not corroborate account, the remainder significant it piece is a of evidence. Furthermore, it is impeach unclear how Henderson would any changes declarants or how in the victims’ account would affect only Bell, phone Henderson since his was involved. Under the corrob- provided adequate. oration corroborating Yet Henderson's represent statements did only not admission, basis potential for for the threat provided to the victims also ground presence. excuse their Ortiz testified that the victim "explained really to me he didn’t charges want to file people because daughter, knew his they neighborhood, they all were in the live in neighborhood, they the same Obviously, knew where he lived.” victim was afraid charges of retaliation if went forward. Like the Jones, history conduct, i.e., defendant in Henderson had a of violent robbery he committed in 2000 robbery and the home invasion from this represented case. This ground substantial to believe retaliation was Moreover, possible. daughter the victim's was familiar with Henderson. Henderson's involvement was discovered because the daughter recognized phone his by number. She knew Henderson his first name and had him come to her residence to discuss the incident. such, likely As it is she was familiar personality with Henderson’s and propensity his gives for violence. weight This additional to the victim’s fear. above, already For the hearsay reasons discussed clearly was Thus, reliable. I would balancing hold that under the test the properly

was admitted. was he saw who it because open not door, the victim did but unlocked, and door, was which entered the The men there. gun a enter possessed to person The first property. stole as the second Henderson identified The victim his waistband. Ortiz. lineup prepared photo from a to enter person here is not incident, related story the first Unlike people that several Rather, simply it a statement detailed. door, permission, entered without on the victim’s knocked diminishes a lack of detail true that It is property. took larceny Furthermore, prior had several the victim reliability. larceny, grand to plead guilty agreed and had convictions story less reliable. makes his again which corroborat- said, significantly presented other evidence That See story reliable. to make account ed the victim’s Pratt, 52 States v. Rondeau, 48; see also United 430 F.3d at (7th Cir.1995). 671, 675 F.3d incriminating made

First, accomplice and an Henderson During police involvement. about Henderson’s statements perpetra- he knew the other interview, admitted Henderson car admitted he had been robbery. He also tors discovered a warrant of the car from A search with them. tele- a monitored During the victim. belonging property “they conversation, robbery said gunman from phone they got [Henderson].” me and got established plainly calls Second, telephone monitored other It learned some occurred. was robbery that the the fact of Henderson’s in the house property was of the victim’s remove the brother to instructed the gunman The brother. towards numerous threats made gunman property. to return the stolen eventually arranged The gunman victim. does not this evidence Although to the victim. property involvement, anoth- it proves indicate Henderson’s necessarily involving robbery of a case: the existence crucial to the er fact the victim.

Third, the telephone monitored provided conversations evi- dence of a motive. At one point, Henderson stated the victim “pulled knife on Martin” and the victim “should go jail.” conversation, In another the gunman, immediately after stat- ing “they got me and they got robbery, for the [Henderson]” they get Thus, “asked how did may Martin.” it be inferred that Martin was the participant third in the robbery, that Henderson shared Martin’s unfavorable relationship with the victim, and Henderson upon acted these sentiments participating in the robbery. The robbery may have been retaliation for the victim pulling Martin, a knife on or an act of aggression against someone the perpetrators did not like.

Fourth, Henderson provided explanations evasive to Ortiz and the court could make an incriminating inference from this. Crawford, 130; Covil, 323 F.3d at 268 Va. at 604 S.E.2d at 82. Henderson first told Ortiz “that the people the neigh simply him, borhood didn’t like why and that’s his name came on up these two different cases.” When Ortiz inquired further about why people him, did not like Henderson “they stated just don’t.” Henderson then mentioned the victim of the home invasion as “being one of the people that don’t like him just because he had an issue with his brother.” The trial court could infer a desire to conceal the truth from Henderson’s implausible claim that he was identified aas robber simply because of a general dislike for him in the community. Moreover, by Henderson specifically mentioning the robbery victim as a person him, who disliked the trial court could infer Henderson’s involvement in robbery and a desire to discredit the victim.

Fifth, the court again could make an incriminating inference from Henderson’s statements regarding his whereabouts the night of the robbery. Henderson told Ortiz that on night incident, he on was his porch talking with others between 8:00 p.m. midnight. Yet at the hearing, Henderson presented the testimony mother, of his who stated that when she arrived home p.m., at 10:20 Henderson in was his room and did not leave the house that night. Further- more, when police house, searched they Henderson’s were told day the incident.” there the “was not that Henderson and his mother to believe that Henderson court could choose and this as additional regard guilt to conceal his seeking were of culpability. proof

Sixth, reported robbery the soon it that the victim is notable testified was to occurred. Ortiz she alleged after it have was investigate come in to a home my “at at house to night called reliability. tends to robbery.” support This invasion Cf. Herron, 330, 157 at at 198. 208 Va. S.E.2d subject to criminal

Seventh, victim have been the would § This in- a Code 18.2-461. liability filing report. for false a to reliability by attaching penalty a complainant’s creases Beckner, at 425 S.E.2d misleading Va.App. See police. at 532. an for

Finally, obtained arrest warrant police the Thus, robbery. judicial of a officer Henderson because the sufficiently probable the reliable to establish found evidence eventually for was nolle charge prose- cause an arrest. The retaliation, victim, the was scared of re- quied because who to testify. fused again, majority’s analysis ignores many

Yet the terse the majority only relevant factors above. The focuses described on the evidence favorable to Henderson.

Taken the a reliable together, evidence revealed account the robbery involving story a Henderson. While victim’s standing reliability a the support finding, alone would not Henderson, evidence, by provided other statements including history.20 a reliable assuming again, balancing applies,

20. Once test I would hold the arguments extremely hearsay Under facts and similar to admissible. incident, hearsay the court in held the was admissible. The Martin court held: case, argues government present that has failed Martin the explain present testimony. adequately to failure to Garcia’s live its that, testify regarding although Sperando points Martin out did court, against testify to Martin in state those state Garcia’s refusal proceedings year court occurred more than a before hearing yet, proceedings, government since state court and those Moreover, attempt subpoena had no made to interview or Garcia. contends, showing alleged Martin there has been no that Garcia's (i.e., refusing testify reason for to her fear of retaliation a "crime Consequently, family") argues, govern- is well-founded. Martin producing ment failed to show that burden has Garcia’s live testimony is inordinate. % # sH # case, present government explanation In the did offer an for why producing burden of Garcia as live would be witness government presented The inordinate. evidence that Garcia re- that, peatedly testify against stated that not she would Martin court, subpoenaed testify against when Garcia was in state Martin appeared testify. government she court but refused be- testify against lieved Garcia likewise would not Martin his supervised hearing serving release revocation and that her with a subpoena government would be futile. The also demonstrated that evidence was reliable.... government good [W]e hold that the met its burden to show cause producing for not hearing. Garcia as a live witness at the revocation (citation omitted). 382 F.3d 845-46 at Martin, plainly Like the Commonwealth demonstrated here that the testify following dialogue victim refused to from of fear retaliation. The during hearing: the occurred .Ortiz, say ultimately, [Prosecutor]: Would it be fair to Detective that ... testify the victim refused to to court come and to to the circum- the home stances of invasion? mother, actually personally Yes. I [Ortiz]: met with him and his and they extremely My were scared of retaliation. victim’s mother ... basically day gunshots she said before she—the the court she heard house, really around the and that scared her. charge against A filed robbery, was Henderson in connection with the prosequied testify. but was nolle when victim the refused to Such fear justified, was for phone Ortiz testified in that monitored conversations gunman the made "a lot of threats towards the victim.” evidence, Based on the Commonwealth the showed victim re- testify fused to from accomplices. fear of Henderson or his Consider- ing previous proceeding that ain the Commonwealth was forced to charge prosequi nolle a testify, because of the victim’s refusal to there is no reason believe a result would different occur at such, hearing. only inquiry Id. 846. As the was whether the Farmer, evidence was reliable. 567 F.3d at 347. the For reasons above, detailed it was reliable. assertion, Contrary majority’s to the reading it is not a fair suppose only record to the the reason victim was afraid was from hearing gunshots. ignores gunman’s This threats towards the victim, victim, well as the apparently as likelihood that the who associ- Henderson, persons ated possibility with like was well aware of the of gunshots already merely present retaliation. reinforced an fear. incidents, not hearsay was most of that for I note both of Ortiz of events testimony of but consisted multi-layered, found, they may be but her by Exceptions others. described of evidence. the other significance light not of are section, majority I in its conclusion note that Finally, not either apply court did “in the circuit that this case holds testimony. to Ortiz’s objection Henderson’s overruling test ‘good fails cause’----” Thus, us to establish the record before an court make a trial must be to mean interpreted This could anbe on record. This would finding cause good of explicit brief, trial, or opening raised at Henderson’s issue not majority’s analysis section. CONCLUSION VII. test to reliability has adopted Virginia

I conclude that hearings of in revocation admissibility determine the introduction of that test application permits I affirm Accordingly, would testimony challenged. here court. trial

710 S.E.2d 509 Aaron Joel BURRELL Virginia. COMMONWEALTH Record No. 0488-10-1. Virginia, Appeals

Court of Chesapeake.

June 2011. irrational, Moreover, since this is irrelevant even victim’s fear was if the Martin, at 846. testify. 382 F.3d refused to evidence clear he

Case Details

Case Name: Henderson v. Commonwealth

Court Name: Court of Appeals of Virginia

Date Published: Jun 21, 2011

Citation: 710 S.E.2d 482

Docket Number: Record 0688-10-4

Court Abbreviation: Va. Ct. App.