Boone v. Commonwealth

• Decision Date: 20 May 2014
• Docket Number: Record No. 1510–13–2.
• Citation: 63 Va.App. 383,758 S.E.2d 72
• Court: Virginia Court of Appeals
• Parties: George E. BOONE, a/k/a George Edward Boone, Jr. v. COMMONWEALTH of Virginia.

63 Va.App. 383

758 S.E.2d 72

George E. BOONE, a/k/a George Edward Boone, Jr.

v.COMMONWEALTH of Virginia.

Record No. 1510–13–2.

Court of Appeals of Virginia, Richmond.

May 20, 2014.

Horace F. Hunter (Hunter & Lipton, PC, Richmond, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General; Aaron J. Campbell, Assistant Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY and PETTY, JJ.

HUMPHREYS, Judge.

George E. Boone (“Boone”) appeals his conviction of operating a motor vehicle after having been declared a habitual offender, second or subsequent offense, in violation of Code § 46.2–357, after a bench trial in the Circuit Court of Chesterfield County (“trial court”). Boone argues that the trial court erred in admitting his Department of Motor Vehicles (“DMV”) transcript into evidence because it violates his Sixth Amendment Confrontation Clause rights and that the evidence is insufficient to support his conviction.

I. BACKGROUND

This Court reviews the evidence in the light most favorable to the prevailing party in the trial court—in this case, the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). So viewed, the evidence established the following.

On January 31, 2012, around 6:00 p.m., Virginia State Trooper D.A. Robinson and other troopers were participating in a “checking detail” in Chesterfield on Interstate 95 (“I–95”). The checking detail was set up so that vehicles turning off of Route 10 onto I–95 would have to pass through the checkpoint about fifty meters from the turn onto I–95. As Robinson was watching traffic, he noticed that a vehicle that had been waiting in line pulled off onto the shoulder of the roadway just before the checking point. Robinson walked up to the vehicle from the checking point. Robinson approached the driver's side and had a conversation with Boone. Boone said he was having engine problems and he had to pull off the roadway. Robinson asked Boone for his driver's license, and Boone stated that his license was in his wallet which he had left at home. Robinson “asked Mr. Boone to stop lying ... and to stop playing games.” Then Boone “admitted that he was suspended.” Boone provided his social security number to Robinson, which enabled Robinson to look at Boone's DMV driving transcript and see that Boone was a habitual offender.

The grand jury indictment charged that Boone feloniously operated a motor vehicle on the highways of Virginia after having been found to be a habitual offender, second or subsequent offense, in violation of Code § 46.2–357. Robinson was the only witness at Boone's trial. The Commonwealth introduced Boone's DMV transcript, to which Boone's counsel objected. The trial court overruled Boone's objection.

Boone's DMV transcript dated February 2, 2012, highlighted with asterisks at the top, “ATTENTION: PREVIOUS DRIVE AFTER H.O.” and “NOTICE OF SUSPENSION/ REVOCATION RECEIVED.” A few lines down, the transcript read, “DRIVER LICENSE STATUS: REVOKED HABITUAL OFFENDE[R].” Boone's transcript indicated that he was adjudicated a habitual offender in the Richmond General District Court on October 29, 1998, and in the Henrico County General District Court on November 18, 1998. Since those dates, the transcript shows that Boone has been convicted six times for operating a motor vehicle after having been declared a habitual offender in violation of Code § 46.2–357.

In addition to the DMV transcript, the Commonwealth's attorney entered into evidence Commonwealth's Exhibit 2, multiple certified conviction orders convicting Boone of driving after having been declared a habitual offender. As indicated by the DMV transcript, the most recent conviction order in the record was dated July 20, 2011, convicting Boone of misdemeanor driving while a habitual offender in Henrico County Circuit Court. The date of that offense was March 24, 2011. Exhibit 2 also includes six other orders from various Virginia circuit courts convicting Boone of driving after having been declared a habitual offender, with dates of offense ranging from 2001 to 2007. The trial court overruled Boone's motion to strike and found him guilty of violating Code § 46.2–357.

II. ANALYSIS

A. The DMV Transcript is Not Testimonial

Boone's first assignment of error is that “[t]he trial court erred in admitting into evidence[Boone's] DMV transcript as proof that [he] was, in fact, an habitual offender.” Boone asserts that the admission of the DMV transcript was error of constitutional import: “The testimony in this case is a DMV transcript being admitted into evidence in lieu of the actual habitual offender adjudication order. This violated [Boone's] right to confront and cross-examine his accuser under the Confrontation Clause of the Sixth Amendment of the United States Constitution.”

Appellate courts review evidentiary rulings under an abuse of discretion standard. Boyce v. Commonwealth, 279 Va. 644, 649, 691 S.E.2d 782, 784 (2010). However, “constitutional arguments present questions of law that this Court reviews de novo.” Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011).

“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the Confrontation Clause does not allow the admission of testimonial statements of a witness who is absent from trial unless certain requirements are satisfied—the witness must be unavailable and the defendant must have had a prior opportunity to cross-examine the witness. Id. at 59, 124 S.Ct. at 1368–69. However, not all witness statements or public records introduced at trial are necessarily testimonial. The Supreme Court held that evidence falling within some hearsay exceptions, such as business records, “by their nature” are not testimonial. Id. at 56, 124 S.Ct. at 1367. The Court further explained the non-testimonial nature of business records in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009): “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” ¹Id. at 324, 129 S.Ct. at 2539–40 (emphasis added).

This Court has previously determined that a DMV transcript is not “testimonial.” Jasper v. Commonwealth, 49 Va.App. 749, 644 S.E.2d 406 (2007). In Jasper, the appellant objected to the admission of his DMV transcript on the ground that its content was “testimonial” hearsay. Id. at 752, 644 S.E.2d at 408. The appellant was prosecuted for violating Code § 46.2–391, “Revocation of license for multiple convictions of driving while intoxicated.” Id. at 753, 644 S.E.2d at 408–09. The transcript was introduced to prove that the appellant's license had been revoked and that he had notice of the revocation. Id. “[T]he challenged document was generated as a result of a request by law enforcement personnel for a search of certain public records” and “involved the certification of [a state] official regarding the existence of certain records.” Id. at 757, 644 S.E.2d at 411. “[T]he person completing the certification was the custodian of the records searched, and the underlying records were not created in anticipation of the litigation in which a summary of their contents was offered into evidence.” Id. (emphasis added). This Court found that the admission of the DMV transcript did not violate the appellant's Confrontation Clause rights. Id.

The Jasper Court followed the rationale applied in Michels v. Commonwealth, 47 Va.App. 461, 624 S.E.2d 675 (2006). In Michels, we held that an official record from an out-of-state agency was not testimonial where the record was a computer-generated official record “prepared in the non-adversarial setting in which ‘the factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observation and investigation of crime are simply not present.’ ” Id. at 465, 624 S.E.2d at 678 (quoting State v. Dedman, 136 N.M. 561, 102 P.3d 628, 635 (2004)).

While our analyses in Jasper and Michels preceded Melendez–Diaz, we conclude that Melendez–Diaz does not demand a different result regarding the use of a DMV transcript as evidence at trial. In Melendez–Diaz, the Court found that the defendant's right to confront witnesses against him was violated when the trial court admitted into evidence “affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine.” 557 U.S. at 307, 329, 129 S.Ct. at 2530, 2542–43. The Court stated that the affidavits or “certificates” created for use at trial were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at 310–11, 129 S.Ct. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 2278, 165 L.Ed.2d 224 (2006)). Responding to the dissent, the Melendez–Diaz majority distinguished the forensic analysts' certificates from a clerk's certificate authenticating an official record. Id. at 322, 129 S.Ct. at 2538. In authenticating an official record (or copy of an official record) for use as evidence, a clerk is permitted to “ ‘certify the correctness of a copy of a record kept in his office,’ ” but he is not permitted to “ ‘furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.’ ” Id. at 322, 129 S.Ct. at 2539 (quoting State v. Wilson, 141 La. 404, 75 So. 95, 97 (1917)). “A clerk could by affidavit authenticate or...