Cox v. Commonwealth
| Citation | 779 S.E.2d 199,65 Va.App. 506 |
| Decision Date | 01 December 2015 |
| Docket Number | Record No. 1871–14–3. |
| Parties | Waylon Allen COX v. COMMONWEALTH of Virginia. |
| Court | Court of Appeals of Virginia |
Zachary Lawrence MacDonald, Third Year Law Student (Jeffrey H. Geiger ; Sands Anderson, P.C., Richmond, on briefs), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: HUFF, C.J., HUMPHREYS, J. and BUMGARDNER, Senior Judge.
Waylon Allen Cox ("appellant") appeals an order of the Pulaski County Circuit Court ("trial court") revoking his previously suspended sentences for convictions obtained in 2004. Following the revocation proceeding, the trial court revoked and resuspended the balance of appellant's remaining sentences, with the exception of seven years and nine months, which appellant was ordered to actively serve. On appeal, appellant contends that the trial court "violated [a]ppellant's constitutional due process right to confront his accusers by allowing hearsay evidence" to be admitted, over his objection, through the probation officer's testimony and the probation report. For the following reasons, this Court reverses the trial court's ruling and remands the case for further proceedings if the Commonwealth be so advised.
On appeal, "we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004) ). So viewed, the evidence is as follows.
On September 15, 2014, appellant appeared before the trial court for a probation violation proceeding, which arose from alleged breaches of the terms of his suspended sentences which had been entered in 2004 for convictions of robbery and malicious wounding. Appellant was charged with having violated his probation by failing to appear for his drug screening on February 19, 2014, by testing positive for cocaine on January 15, 2014, and on February 11, 2014, and by failing to pay court costs.
At the hearing, the Commonwealth called probation officer Dana Manns ("Manns") to testify as its sole witness. During direct examination, she admitted she did not know appellant. At the time of the alleged probation violations, appellant had been living in Bassett, Virginia, under the supervision of the Martinsville probation office. Because appellant was originally convicted in Pulaski County, however, the probation revocation proceeding was heard in Pulaski County Circuit Court. For the purposes of the hearing, Manns, a probation officer for Pulaski County Circuit Court, had been assigned to appellant's case.
Over appellant's objection, the Commonwealth offered into evidence Manns's testimony concerning the contents of the probation violation report she received from Thomas E. Bullock, Jr. ("Bullock"), the Martinsville probation officer who had been supervising appellant's probation. Appellant objected to his lack of opportunity to cross-examine Bullock, who purportedly authored the report,1 as to the allegations contained in the report and as to the validity of the January and February tests for cocaine. Specifically, appellant argued that the evidence, including the results of the drug tests, was testimonial hearsay and although not subject to Sixth Amendment protections, its admission would violate appellant's Fourteenth Amendment right to due process. In response, the Commonwealth argued that appellant had received the probation revocation report in February 2014, which gave appellant ample notice of the charges and evidence against him. As such, the Commonwealth submitted that under Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), if appellant disputed the contents of the report, appellant should have objected in writing in advance of the probation hearing.2 The trial court ruled in favor of the Commonwealth and allowed Manns to testify to the contents of the report. Specifically, the court reasoned "[w]ell this is a probation violation and this is very customary that the reports come from another jurisdiction and hearsay rules are greatly relaxed." The report itself was also admitted into evidence over appellant's objection.
This appeal followed.
"On appellate review, ordinarily, ‘the 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.’ " Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901, 907 (2013) (quoting Beck v. Commonwealth, 253 Va. 373, 384–85, 484 S.E.2d 898, 905 (1997) ). A higher standard is applied, however, in the context of alleged violations of constitutional rights. "[W]hether a defendant's due process rights are violated by the admission of evidence is a question of law, to which we apply a de novo standard of review." Id. (citing Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d 679, 684 (2010) ).
On appeal, appellant contends that the trial court erred when it "allow[ed] hearsay evidence over the objection of [a]ppellant's counsel." Specifically, appellant argues the probation violation report is testimonial and its contents are therefore subject to his Fourteenth Amendment right to confrontation, unless good cause is shown. Appellant maintains that because the trial court failed to make a finding of good cause, this Court must conduct a de novo review of the record, and further contends that such a review will fail to substantiate the necessary finding of good cause.
In response, the Commonwealth argues that appellant's assignment of error has been waived under Rule 5A:18 because appellant either failed to sufficiently state his objection during the probation hearing or waived his objection on cross-examination.
On the merits, the Commonwealth argues the report was admissible because of its reliability.
On the issue of preservation, the Commonwealth argues that "Henderson makes clear that a defendant must not only object on due process confrontation grounds but when overruled, ask the trial court to state on the record the specific ground upon which the court has relied for not allowing confrontation." Appellee's Br. at 11–12 (emphasis added). Because appellant only objected to his lack of confrontation but did not further ask the court to state its grounds for overruling the objection, the Commonwealth contends appellant's objection was not preserved.
Thereafter defense counsel specifically referenced the holdings of Henderson and Melendez–Diaz in support of appellant's right to confrontation.
On this record, we find that the trial court and counsel for the Commonwealth were adequately informed of the grounds for appellant's objections and the purpose of Rule 5A:18 was satisfied; therefore, the error assigned was sufficiently preserved at the revocation hearing. The Henderson Court made a distinction between objecting to a trial court's failure to state its findings and objecting to a lack of good cause. Henderson, 285 Va. at 325, 736 S.E.2d at 905. In Henderson, the Court first declined to address whether the trial court "had a duty to state for the record the specific ‘good cause’ it found" because this issue had not been properly preserved. Id.
Nonetheless, the Court went on to review the record to determine whether "good cause" did exist. Id. Accordingly, violating the limited right to confrontation afforded in revocation hearings was deemed distinct from failing to articulate the good cause basis for allowing hearsay evidence. In the case at bar, appellant has not assigned error to the trial court's failure to state its grounds for the record, but has assigned error to the violation of his right to confrontation.
Furthermore, Rule 5A:18 provides, in part, that in order to preserve an issue for appeal, "an objection [must be] stated with reasonable certainty at the time of the ruling." (Emphasis added).
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Jenkins v. Commonwealth
...434, 828 S.E.2d 795 (2019). A probation violation report falls into the category of testimonial hearsay. See Cox v. Commonwealth, 65 Va. App. 506, 517-21, 779 S.E.2d 199 (2015). If hearsay offered for the purpose of assessing wrongdoing in a revocation hearing is testimonial, the trial cour......
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Anderson v. Commonwealth
...28 Va. App. 555, 558-59, 507 S.E.2d 116, 117-18 (1998). By contrast, we review constitutional claims de novo. Cox v. Commonwealth, 65 Va. App. 506, 513, 779 S.E.2d 199, 202 (2015); see also Blunt v. Commonwealth, 62 Va. App. 1, 8, 741 S.E.2d 56, 59 (2013) (claimed violation of the Fourteent......
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Holman v. Commonwealth
...must consider on every application for an appeal and on the hearing of every case submitted to our judgment." Cox v. Commonwealth, 65 Va. App. 506, 521, 779 S.E.2d 199, 206 (2015) (quoting Walker v. Commonwealth, 144 Va. 648, 652, 131 S.E. 230, 231 (1926)). Here, Holman objected only to tho......