Harris v. Commonwealth
| Decision Date | 23 May 2023 |
| Docket Number | 0504-22-1 |
| Parties | JEFFREY LAMONT HARRIS, S/K/A JEFFREY LAMONTE HARRIS v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE John W. Brown Judge
Michelle C.F. Derrico, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges AtLee, Causey and Friedman Argued at Norfolk, Virginia
Jeffery Lamont Harris appeals the Circuit Court of the City of Chesapeake's ("trial court") judgment revoking thirteen years and resuspending nine years of his previously-suspended sentences for conspiracy to distribute cocaine; the manufacture, sale, distribution, or possession with intent to distribute cocaine; and grand larceny. Harris contends that the trial court erroneously admitted testimonial hearsay at the revocation hearing in violation of his due process right to confrontation under the Fourteenth Amendment. Harris also argues that the trial court "failed to give proper weight to mitigation evidence" in imposing his sentence. For the following reasons, we affirm the trial court's judgment.
On appeal, "we view the record in the light most favorable to the Commonwealth because it was the prevailing party below." Blowe v. Commonwealth, 72 Va.App. 457, 461 (2020) (quoting Delp v. Commonwealth, 72 Va.App. 227, 230 (2020)). In October 2007, the trial court convicted Harris of conspiracy to distribute cocaine; the manufacture, sale, distribution, or possession with intent to distribute cocaine; and grand larceny. The trial court sentenced him to a total of twenty years' incarceration with sixteen years suspended, conditioned upon good behavior, supervised probation, and payment of restitution. Subsequently, Harris had his supervised probation transferred from Virginia to Texas.
On August 5, 2014, the trial court found that Harris had violated the conditions of his probation because he had a new heroin possession conviction in Texas and he failed to complete an inpatient drug treatment program.[1] The trial court revoked sixteen years of Harris's suspended sentences and resuspended thirteen years on the same conditions as previously ordered.
On June 11, 2019, Harris's probation officer in Texas issued a major violation report alleging that Harris had violated probation Conditions 1, 6, 8, 10, and 11.[2] The report stated that Harris had repeatedly tested positive for illicit drugs. In addition, he failed to submit to urine drug analysis, complete a substance abuse program, "appear in court for [a] new felony case," and comply with GPS tracking and curfew requirements. On August 20, 2019, the trial court issued a capias based on the allegations.[3]
At a revocation hearing on March 24, 2022, the Commonwealth introduced Harris's VCIN[4] record and certified conviction orders reflecting that he had incurred seven criminal convictions while on probation, including one for possession of a controlled substance. Chesapeake Probation and Parole Officer Joshua Garris testified that although he did not personally supervise Harris, Garris had received the Texas probation officer's major violation report and forty-three pages of case notes[5] detailing "what transpired while [Harris] was on probation in Texas."
When the Commonwealth asked Garris how the information he had reviewed demonstrated that Harris had violated Condition 6, Harris objected on due process confrontation grounds. Citing Cox v. Commonwealth, 65 Va.App. 506 (2015), Harris asserted that he had a "continuing objection" to Garris's testimony because Garris "did not personally supervise" him and "it will probably be the same testimony for different reasons under the other conditions." The Commonwealth countered that Garris's testimony was admissible under the "reliability or balancing test" addressed in Henderson v. Commonwealth, 285 Va. 318 (2013), and "[i]t's not feasible to have out-of-court probation officers come to every hearing." The trial court deferred ruling on the objection pending further testimony because he did not know "what [wa]s going to be said."
Garris testified without objection that, based on the Texas probation officer's case notes, Harris had violated Condition 6 by failing to report to probation as instructed thirteen times. In addition, Harris did not complete mandatory substance abuse treatment. Harris subsequently objected to Garris testifying concerning Harris's alleged non-compliance with GPS monitoring and curfew requirements "for the same reasons" and because the testimony would be speculative. The trial court sustained Harris's objections but ruled that the Commonwealth could ask questions about whether Harris had reported to probation as instructed. Without objection, Garris reiterated his testimony that the Texas probation officer's notes reflected that Harris had violated Condition 6 by repeatedly failing to report to probation.
Concerning Harris's alleged violation of Condition 8, Garris testified that the Texas probation officer's case notes stated that Harris had thirteen positive drug tests and one refusal to submit to drug testing. Harris objected to Garris's testimony based on "the same continuing objection." In addition, Harris argued that under Cox, a probation officer's testimonial hearsay regarding a positive drug test was inadmissible. The trial court asked Garris whether the drug tests were performed at the Texas probation office or "someplace else." Garris testified that a Texas probation officer had watched Harris be tested at the probation office; the trial court overruled Harris's objection.[6]
At the conclusion of the Commonwealth's evidence, Harris moved to strike the Conditions 1, 6, and 8 violation charges "based on . . . the continuing objection" to "Officer Garris'[s] testimony."[7] The trial court found that Harris had failed to report as instructed thirteen times, tested positive for illegal drugs thirteen times, refused to submit to drug testing once, and "admitted using" controlled substances at least twice. Therefore, the trial court found that "[t]here's some corroboration" of the allegations contained in the Texas probation officer's notes and major violation report. Accordingly, the trial court denied the motion to strike for violating Conditions 1, 6, and 8 and found that Harris had violated those conditions.[8]
The trial court considered discretionary sentencing guidelines, which recommended a sentence of active incarceration between one year and three months to four years. The Commonwealth acknowledged that Harris had paid the full amount of restitution but argued that his "new convictions alone" justified a sentence at the high end of the guidelines. Harris introduced a letter from a representative at Pyramid Healthcare-a substance abuse rehabilitation facility- stating that Harris met "the criteria" for admission to inpatient drug and alcohol abuse treatment. Harris's counsel argued that Harris had a "drug problem" and asked the trial court to impose a sentence consistent with the low end of the guidelines. At allocution, Harris testified that he suffered from "some drug issues" and asked the trial court to place him in the drug rehabilitation program rather than impose active incarceration.
The trial court found that Harris's payment of the full amount of restitution was irrelevant because Harris's nonpayment of restitution was the basis of his prior revocation, not the current revocation. It found that Harris had repeatedly violated the conditions of probation by failing to complete drug treatment, using drugs, and accruing new criminal convictions. While the trial court "recognize[d]" that "Harris wants to get treatment," it found that Harris had demonstrated that he was either unable or "didn't want to get the help" that he now requested. Accordingly, the trial court revoked thirteen years of Harris's previously-suspended sentences and resuspended nine years. Harris appeals.
Harris contends that the trial court erred by admitting Officer Garris's testimony "regarding notes from a probation office in Texas" because it violated Harris's right to confrontation under the Due Process Clause of the Fourteenth Amendment. Relying on Cox, Harris argues that "the Texas case notes were not sufficiently reliable" because "no evidence" established how they were created. We disagree.
On appeal, we generally review a trial court's decision to admit evidence at a revocation hearing for an abuse of discretion. Jenkins v. Commonwealth, 71 Va.App. 334, 342 (2019). But "[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." Johnson v. Commonwealth, 296 Va. 266, 274 (2018) (quoting Henderson, 285 Va. at 329). "[I]n conducting our de novo analysis, this Court 'is bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them.'" Cody v. Commonwealth, 68 Va.App. 638, 656 (2018) (quoting McGee v. Commonwealth, 25 Va.App. 193, 198 (1997) (en banc)). Moreover, "the burden is on the appellant to present to us a sufficient record from which we can determine whether the trial court has erred in the respect alleged by appellant." Bay v. Commonwealth, 60 Va.App. 520, 528 (2012) (quoting Justis v. Young, 202 Va. 631, 632 (1961)).
The Due Process Clause of the Fourteenth Amendment[9] includes a "limited right of confrontation . . . applicable to parole and probation...
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