Canada v. Commonwealth

• Decision Date: 30 August 2022
• Docket Number: Record No. 1105-21-3
• Parties: Markquall Antwoine CANADA v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 367

877 S.E.2d 146

Markquall Antwoine CANADA

v.COMMONWEALTH of Virginia

Record No. 1105-21-3

Court of Appeals of Virginia.

AUGUST 30, 2022

Robert C. Goad, III, Amherst, for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and Friedman

OPINION BY JUDGE ROBERT J. HUMPHREYS

Following a bench trial on June 11, 2021, appellant, Markquall A. Canada, was convicted of one count of possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, one count of reckless handling of a firearm in violation of Code § 18.2-56.1, and one count of discharging of a firearm in public in violation of Altavista Code § 46-184. Canada now appeals and argues that the circuit court erred by admitting a recording of a 911 call over his authentication and Confrontation Clause objections. Canada also challenges the sufficiency of the evidence to sustain his convictions for each of his offenses.

BACKGROUND

We view the evidence in the light most favorable to the Commonwealth, the prevailing party below. Haba v. Commonwealth , 73 Va. App. 277, 283, 858 S.E.2d 436 (2021). On November 6, 2020, Dezjah Watson called 911 and reported that Canada fired a shot outside her house. Watson told the 911 operator that Canada shot at her car. Watson said Canada fired one shot "two minutes ago" from a "silver and brown looking gun" that was either a ".22 or a .25." Watson also reported that Canada was a felon. Watson said Canada was her boyfriend, that they had broken up, and that he was upset because she had removed her tags from his car. Watson said Canada drove away from the scene in a black Audi, that had no tags on it, and that he was headed to the Quality Inn in Altavista where he had a room. Watson told the operator that no one was hurt and that there were children in her home. The 911 operator told Watson to call back if the situation changed. At one point during the call, Watson can be heard laughing.

Watson's sister, Qualissa Dale, was at Watson's home that night and saw Canada there. Canada came over to pick up a basket of clothes. He walked out of the house with the basket of clothes. After Canada left, Dale heard a gunshot outside. Dale went to the front door and saw her sister running. She saw Canada outside, and his car door was open.

In response to the 911 call, Officer Osborne and Officer Dogan arrived at Watson's residence. Officer Osborne had been to this residence about one week before November 6, 2020, and a vehicle there had been "shot up." Officer Osborne found no evidence of a bullet hitting anything and received no complaints from anyone else in the area of a gunshot. However, Officer Osborne discovered a .25 caliber shell casing on the ground. Officer Osborne then left the residence and traveled to the Quality Inn in Altavista. He then approached an Audi with no tags and looked inside through the window. A live round of ammunition was observed lying on the driver's seat.

Police obtained a search warrant and searched the Audi and the room where Canada was staying at the Quality Inn. Police found a key to the Audi on the nightstand between two beds. Next to the keys was a wallet that contained Canada's driver's license. There was also a Boston Red Sox hat that Canada was seen wearing in surveillance videos from the Quality Inn. A red backpack was also seized that contained, among other things, a few live .25 caliber rounds. Surveillance video from the Quality Inn showed Canada in possession of the backpack when he first entered the hotel.

Police also searched the Audi and recovered the live .25 caliber round that they had first spotted through the window of the car. They also found a .25 caliber handgun in a large white hamper filled with clothes in the trunk. The gun was found under about half of the clothes, out of sight, and completely concealed.

At trial, the Commonwealth sought to introduce a recording of the 911 call along with a computer-aided dispatch document summarizing the call. To authenticate the documents, the Commonwealth called Jon Evans, the custodian of records for Campbell County Public Safety. Evans testified that the recording was a true and accurate copy of the original call. The Commonwealth also introduced a certificate of authenticity for the computer-aided dispatch document. Canada objected on the grounds that Code § 8.01-390(B) required that the recording of the phone call be accompanied by an affidavit and certificate that contained the date, time, and phone number of the call. He asserted that the certificate supplied by the Commonwealth did not include this information, but the circuit court overruled the objection, concluding that the live testimony of the custodian was sufficient to authenticate the tape.¹

Canada also objected to the introduction of the tape on hearsay and Confrontation Clause grounds. Canada argued that Watson's statements were testimonial and that the Commonwealth was therefore required to call her to testify. The circuit court ruled that the statements were excited utterances and were nontestimonial, and overruled Canada's objections.²

After the Commonwealth rested, Canada called Watson as his witness. Watson testified equivocally to the events of the night of November 6, 2020. According to Watson, she called 911 because she was scared and was unsure what Canada would do because he wasn't talking to her. She also stated she had been drinking that day. At one point, she stated that everything she said in the 911 call was true, but also stated Canada never had a gun and never shot a gun that night. She testified that she put the gun in the clothes hamper and that Canada did not know it was there. She claimed she had put it there because she was angry that Canada had been cheating on her. However, later in her testimony she said she did not place the gun in the hamper. On redirect, she admitted to purchasing the gun herself for home defense. According to Watson, Canada only threw rocks at her car, which produced a sound like a gunshot. Further, according to Watson, what she told the 911 operator was designed to get Canada in trouble because he had hurt her emotionally. Watson discussed the case and evidence with Canada while he was incarcerated, but she testified that did not influence her testimony. On cross-examination, Watson admitted that she previously testified at a bond hearing that Canada had never been at her house on the night of November 6, 2020. She then admitted that either what she said at trial or what she said at the bond hearing was untrue. She also admitted to previously saying she had not talked to Canada about the case at the bond hearing, but on cross-examination agreed that she had. Watson also agreed on cross-examination to speaking with Canada and Canada stating that Watson should not have told anyone they had spoken, that Watson could have claimed the gun, and that Canada suggested she could still claim the gun. However, Watson never acknowledged that Canada had fired a shot.

Given Dale's statements and the later police investigation, as well as Canada's pretrial conversations with Watson, the circuit court found Watson's trial testimony incredible and credited her statements on the 911 call. The circuit court specifically noted that it "found [the 911 call] to be a credible call.... [Watson's] testimony today is inconsistent statements throughout and totally not credible ...." The circuit court found Canada guilty of all three charges and sentenced him to seven years’ incarceration with two years suspended. This appeal followed.

ANALYSIS

I. The Authentication of the 911 Call

In his first assignment of error, Canada alleges that the circuit court erred in admitting the 911 call because it was not authenticated pursuant to Code § 8.01-390(B).³ There are no published cases interpreting Code § 8.01-390(B), and this is an issue of first impression. Authentication of evidence is an evidentiary issue which this Court reviews for an abuse of discretion. See Henderson v. Commonwealth , 285 Va. 318, 329, 736 S.E.2d 901 (2013).

As a general rule, before evidence can be admitted in any case, the proponent bears the burden of presenting other "evidence sufficient to support a finding that the thing in question is what its proponent claims." Va. R. Evid. 2:901.⁴ Virginia Rule of Evidence 2:902 also provides for a category of evidence that is so-called "self-authenticating." "Additional proof of authenticity as a condition precedent to admissibility is not required with respect to" evidence in this category. Va. R. Evid. 2:902. Relevant to this appeal, Rule 2:902(1) states that "[p]ublic records authenticated or certified as provided under a statute of the Commonwealth" fall within this category and do not require additional proof of authenticity.

One such statute is Code § 8.01-390. Code § 8.01-390 provides, in relevant part, that:

A. Copies of records of this Commonwealth, of another state, of the United States, of another country, or of any political subdivision or agency of the same, other than those located in a clerk's office of a court, shall be received as prima facie evidence, provided that such copies are authenticated to be true copies either by the custodian thereof or by the person to whom the custodian reports, if they are different. A digitally certified copy of a record provided pursuant to the provisions of Chapter 38.2 (§ 2.2-3817 et seq.) of Title 2.2, whether in electronic form or in print form with visible assurance of the digital signature, shall be deemed to be authenticated by the custodian of the record unless evidence is presented to the contrary.

B. Records and recordings of 911 emergency service calls shall be deemed authentic transcriptions or recordings of the original statements if they are accompanied by a certificate that meets the provisions of subsection A and the certificate contains the date and time of

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