Adjei v. Commonwealth
Decision Date | 23 September 2014 |
Docket Number | Record No. 1380–13–2. |
Citation | 763 S.E.2d 225,63 Va.App. 727 |
Court | Virginia Court of Appeals |
Parties | Prince ADJEI v. COMMONWEALTH of Virginia. |
John A. Mell, Fredericksburg (Mell & Frost, PC, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: HUMPHREYS, ALSTON and DECKER, JJ.
Prince Adjei appeals his convictions for perjury, in violation of Code § 18.2–434, and possession of a firearm by an illegal alien, in violation of Code § 18.2–308.2:01(B). The appellant contends that the trial court erred by admitting the Commonwealth's document exhibits into evidence and concluding that the evidence was sufficient to support his convictions. We hold that the documents were properly admitted into evidence. Further, we hold that the evidence was sufficient to support the convictions. For these reasons, we affirm.
This case arises from the appellant filing a concealed handgun permit application with the Spotsylvania County Circuit Court. The Commonwealth ultimately charged the appellant with perjury, alleging that he falsely answered “no” to the question on the application regarding whether he was “an alien not lawfully admitted for permanent residence in the United States.” The Commonwealth also charged the appellant with possession of a firearm by an illegal alien.
Prior to trial, the Commonwealth made a motion to introduce into evidence copies of various documents from the appellant's alien file kept by the United States Citizen and Immigration Services (USCIS), an agency of the United States Department of Homeland Security (DHS).1 In support of the admission of the exhibits, the Commonwealth presented the testimony of Special Agent John Ferrick. The agent was employed by Immigration and Customs Enforcement (ICE), also an agency of DHS. Ferrick testified that during the course of investigating the appellant, he accessed DHS's file on him. Ferrick explained that he accessed and relied on such files regularly in the course of his employment. The agent further stated that he requested a certified copy of the file from the National Records Center. The file was transferred to the agent's custody. Ferrick noted that the file arrived with a certification bearing a DHS seal. In court, Ferrick identified a certified copy of the appellant's “immigration alien file.”
The appellant objected to the admission of the documents as hearsay. He argued that the certification signature of Emma Davidson and the accompanying notation, “Washington District Office, office of authorized person,” were insufficient to show that she was “the person to whom the custodian report[ed].” The appellant also argued that the documents were not kept in the ordinary course of business because they were prepared in anticipation of litigation regarding his immigration status in the United States. He further asserted that the documents contained some inadmissible statements of opinion. Last, the appellant suggested that admitting the documents would violate Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because it would deprive him of his constitutional right to confront his accusers. After taking evidence and hearing argument at the pre-trial hearing, the trial court ruled that the documents were admissible.
At trial, Special Agent Ferrick testified that the appellant was a citizen of Ghana and not legally present in the United States. He explained that the appellant first entered the country in October of 2003 with a travel visa that expired that same month. Ferrick noted that the appellant's status in this country changed to “unlawful” the day after his visa expired.
Ferrick summarized the appellant's attempts to obtain legal resident status in this country. The appellant filed an application for residence in 2005 based on his purported marriage to an American citizen. That application was denied after his American spouse withdrew her support for the application. The appellant applied a second time for permanent residence in 2007, that time based on the diversity visa program. USCIS denied that application because the appellant did not qualify for eligibility due to his illegal status in this country. The appellant's 2012 application and third attempt for permanent residence was again based on marriage to an American citizen, who was a different person than in his original application. The USCIS denied that application based on a finding of marriage fraud. In addition to his testimony regarding the failed applications, Ferrick clarified that although the appellant had received authorization to work in the United States for one year, he never obtained legal permission to live here.2
During the course of his investigation, Ferrick learned that the appellant had received a concealed weapon permit through Spotsylvania County and obtained a copy of the permit application. He was concerned about the application because the appellant represented on it that he was lawfully admitted for permanent residence in the United States, and Ferrick knew that the appellant was not a lawful permanent resident.
As Ferrick testified, the Commonwealth introduced the related immigration documents into evidence. The court also admitted into evidence the “Certification of Documents” and two letters from USCIS verifying the contents of the file.
Special Agent Freddie Childs of the Virginia Department of State Police also testified at trial. Childs assisted Ferrick in investigating the appellant. During the course of the investigation, Childs went to the appellant's home. He told the appellant that he was investigating his concealed handgun permit. The agent asked the appellant where he had firearms located in the house. The appellant responded that he had a “nine millimeter” in his bedroom closet. At Childs' request, the appellant showed him the weapon and let the agent hold it.
During the interview that immediately followed, the appellant told Childs that although he did not have a green card, he was not an illegal alien because he had a work visa. Childs showed the appellant the concealed handgun permit application and asked him specifically about the immigration status question on the application. The appellant responded that the particular question confused him. When Childs asked why, the appellant answered, “I don't know.” Childs then asked the appellant whether he was a lawful permanent resident of the United States, and he responded “no.”
The trial court found the appellant guilty of perjury and possession of a firearm by an illegal alien. He was sentenced to twelve months in jail on each offense.
The appellant assigns error to the trial court's admission of the documents from USCIS into evidence, based upon the rule against hearsay as well as the Confrontation Clause of the Constitution of the United States. He also argues that the evidence was insufficient to support his conviction for perjury because the Commonwealth did not prove that he had actual notice of his illegal alien status at the time that he completed the concealed handgun permit application. Finally, the appellant maintains that the Commonwealth did not prove the elements of the firearm charge, noting that the firearm was not in evidence.3
The appellant contends that the trial court erred by admitting the documents from USCIS into evidence because they were not properly authenticated government records nor did they fall within the business records exception to the rule against hearsay. The appellant reasons that because the file did not sufficiently identify the signee of the “certification” as the custodian of the records or person to whom the custodian reported, the documents contained within the file were not properly authenticated. He also contends that Ferrick was not a custodian of the documents. Additionally, the appellant challenges four of the documents as inadmissible opinions.
“[T]he determination of the admissibility of relevant evidence is within the sound discretion of the trial court subject to the test of abuse of that discretion.”
Beck v. Commonwealth, 253 Va. 373, 384–85, 484 S.E.2d 898, 905 1997) ; see also Henderson v. Commonwealth, 59 Va.App. 641, 649–50, 722 S.E.2d 275, 279 (2012). Further, “[t]he measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance of the evidence.” Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293, 296 (1975).
Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”Rule 2:801(c). It can be “oral or written” evidence. See, e.g., Rule 2:801(a) ; see also Stevenson v. Commonwealth, 218 Va. 462, 465, 237 S.E.2d 779, 781 (1977). The value of hearsay relies “ ‘upon the credibility of the out-of-court asserter.’ ” Stevenson, 218 Va. at 465, 237 S.E.2d at 781 (quoting Charles T. McCormick, McCormick's Handbook of the Law of Evidence § 246, at 584 (Edward W. Cleary ed., 2d ed.1972) ). Generally, if evidence is hearsay, “[it] is inadmissible unless it falls within one of the recognized exceptions to the hearsay rule.” Robinson v. Commonwealth, 258 Va. 3, 6, 516 S.E.2d 475, 476 (1999) ; see also Rule 2:802.
As an initial matter, the appellant challenges four of the documents as opinion material inadmissible under the rule against hearsay. The documents pertain to the appellant's applications for permanent residence and the denials of those applications by USCIS. They reflect the agency investigations of the legitimacy of the appellant's two marriages to American citizens as well as the finding that the second marriage was fraudulent. The appellant suggests that these documents contain the “opinion” that he committed marriage fraud and, consequently, should not have been admitted into...
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