Dickens v. Com., Record No. 1755-07-1.

Docket NºRecord No. 1755-07-1.
Citation52 Va. App. 412, 663 S.E.2d 548
Case DateJuly 29, 2008
CourtCourt of Appeals of Virginia
663 S.E.2d 548
52 Va. App. 412
Stuart Bruce DICKENS
v.
COMMONWEALTH of Virginia.
Record No. 1755-07-1.
Court of Appeals of Virginia, Chesapeake.
July 29, 2008.

[663 S.E.2d 549]

Robert H. Knight, III, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Jennifer C. Williamson, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

[663 S.E.2d 550]

Present: FRANK, HUMPHREYS and MILLETTE, JJ.

[52 Va. App. 416]

OPINION

FRANK, Judge.


Stuart Bruce Dickens, appellant, was convicted of violating the terms of probation. On appeal, he contends the trial court, by accepting an affidavit that he failed to register as a sex offender, violated his Fourteenth Amendment due process right of confrontation. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

On March 15, 2005, appellant was convicted of failing to register as a violent sex offender in violation of Code § 18.2-472.1 and the trial court imposed, but suspended, a sentence, conditioned upon five years probation.

On April 6, 2007, the trial court conducted a revocation hearing based on appellant's subsequent failure to register as a violent sex offender as required by Code § 18.2-472.1. The only evidence of the violation was an affidavit subscribed and sworn to on May 4, 2006, by the custodian of records for the Sex Offender & Crimes Against Minors Registry of the Virginia Department of State Police averring that appellant had not registered with the registry between November 18, 2005, and May 3, 2006.

The court found appellant had violated the terms of his probation, and by order dated April 13, 2007, the trial court revoked his probation, reinstated his previously suspended sentence, and re-suspended all but two years.

On May 1, 2007, appellant filed a motion for rehearing contending he has a due process right of confrontation. The court vacated its April 13, 2007 order and conducted a hearing on the motion on June 29, 2007, at which time appellant argued he was deprived of his due process rights by not being able to cross-examine the affiant who had averred that appellant had not registered as a sex offender.

The trial court withheld its decision at the hearing, and by letter opinion dated July 18, 2007, opined that the admission of

52 Va. App. 417

the affidavit "did not vitiate the due process guarantee of confrontation...."

This appeal follows.

ANALYSIS

Appellant contends the admission of the state police affidavit as proof of his failure to register in the Sex Offender Registry violates his due process right of confrontation. The admissibility of evidence is within the discretion of the trial court, and we review its decisions only for abuse of discretion. Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). However, whether appellant's due process right of confrontation was violated is a question of law and is reviewed de novo. Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006).

At the outset we note that both the United States Supreme Court and this Court have previously held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991); see also Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759-60, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2599-2600, 33 L.Ed.2d 484 (1972). We acknowledge that appellant does not maintain that his Sixth Amendment right to confrontation was violated.1 However, in order to understand the Fourteenth Amendment due process right to confrontation, we must begin with a review of the Sixth Amendment right to confrontation.

Morrissey affords a probationer a due process right to "confront and cross-examine adverse witnesses." Morrissey, 408 U.S. at 489, 92 S.Ct. at 2604. However, there is no right

52 Va. App. 418

to confrontation or to

663 S.E.2d 551

cross-examination contained within the text of the Fourteenth Amendment. Thus, we look to the Sixth Amendment right to confrontation for guidance in understanding the due process right to confrontation.

The seminal case on Sixth Amendment confrontation, Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), held that the Confrontation Clause applies to testimonial hearsay and in order for such hearsay to be admissible, the witness must be unavailable and the accused must have had an opportunity for cross-examination. Id. at 68, 124 S.Ct. at 1373-74. The Court noted that the Confrontation Clause targeted a specific "evil," namely the "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. at 49, 124 S.Ct. at 1362-63. The Court reasoned that the Confrontation Clause protects against "testimonial" statements because, it only "applies to `witnesses' against the accused — in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. at 1364 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). In a concurring opinion, then Chief Justice Rehnquist opined that some hearsay exceptions, such as "business records and official records" do not violate the Sixth Amendment. Id. at 76, 124 S.Ct. at 1378. See also Jasper v. Commonwealth, 49 Va.App. 749, 754, 644 S.E.2d 406, 409 (2007) (holding the Sixth Amendment right of confrontation does not apply to business records).

In Michels, 47 Va.App. 461, 624 S.E.2d 675, we found no error in the admissibility of a certificate from the Secretary of the State of Delaware concerning the absence of corporate registration. We held the certificates were "not testimonial for two primary reasons." Id. at 469, 624 S.E.2d at 680. First,

the certificates are not by their nature accusatory and do not describe any criminal wrongdoing of appellant. Rather they are a neutral repository of information that reflects the objective results of a search of public records.... [They]

52 Va. App. 419

certif[y] that a search has been conducted and particular records do not exist.

Id. at 469-70, 624 S.E.2d at 680. Second,

the documents do not resemble ex parte communications, "the principal evil at which the Confrontation Clause was directed." Crawford, 541 U.S. at 50, 124 S.Ct. at 1363-64.... While the certificates were requested by a law enforcement officer, the reports were prepared in a non-adversarial setting in which "the factors likely to cloud the perception of an official engaged in the more traditional law enforcement...

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16 practice notes
  • Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 21, 2011
    ...evidence is within the discretion of the trial court, and we review its decision only for abuse of discretion.” Dickens v. Commonwealth, 52 Va.App. 412, 417, 663 S.E.2d 548, 550 (2008) (citing Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988)). “However,[58 Va.App. 375] wh......
  • Henderson v. Commonwealth, Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 28, 2012
    ...another trial or even an extra-judicial account concerning a probationer's conduct.” (Emphasis added). See also Dickens v. Commonwealth, 52 Va.App. 412, 663 S.E.2d 548 (2008).2 [59 Va.App. 648] Succinctly stated, the due process right of confrontation contained in the Fourteenth Amendment i......
  • Holloman v. Commonwealth, Record No. 1319–14–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • August 11, 2015
    ...the defendant had a prior opportunity for cross-examination. Melendez–Diaz, 557 U.S. at 309, 129 S.Ct. at 2531 ; Dickens v. Commonwealth, 52 Va.App. 412, 418, 663 S.E.2d 548, 551 (2008). In order to trigger the protection, the statement must be testimonial. To determine whether a statement ......
  • Saunders v. Commonwealth, Record No. 1630–12–2.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 4, 2014
    ...case law supports the reliability of hearsay statements by government officials in revocation hearings. See Dickens v. Commonwealth, 52 Va.App. 412, 422, 663 S.E.2d 548, 553 (2008) (“We found that while part of the probation officer's testimony was ‘based on information provided to her by o......
  • Request a trial to view additional results
16 cases
  • Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • June 21, 2011
    ...evidence is within the discretion of the trial court, and we review its decision only for abuse of discretion.” Dickens v. Commonwealth, 52 Va.App. 412, 417, 663 S.E.2d 548, 550 (2008) (citing Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988)). “However,[58 Va.App. 375] wh......
  • Henderson v. Commonwealth, Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 28, 2012
    ...another trial or even an extra-judicial account concerning a probationer's conduct.” (Emphasis added). See also Dickens v. Commonwealth, 52 Va.App. 412, 663 S.E.2d 548 (2008).2 [59 Va.App. 648] Succinctly stated, the due process right of confrontation contained in the Fourteenth Amendment i......
  • Holloman v. Commonwealth, Record No. 1319–14–1.
    • United States
    • Virginia Court of Appeals of Virginia
    • August 11, 2015
    ...the defendant had a prior opportunity for cross-examination. Melendez–Diaz, 557 U.S. at 309, 129 S.Ct. at 2531 ; Dickens v. Commonwealth, 52 Va.App. 412, 418, 663 S.E.2d 548, 551 (2008). In order to trigger the protection, the statement must be testimonial. To determine whether a statement ......
  • Saunders v. Commonwealth, Record No. 1630–12–2.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 4, 2014
    ...case law supports the reliability of hearsay statements by government officials in revocation hearings. See Dickens v. Commonwealth, 52 Va.App. 412, 422, 663 S.E.2d 548, 553 (2008) (“We found that while part of the probation officer's testimony was ‘based on information provided to her by o......
  • Request a trial to view additional results

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