Henderson v. Commonwealth of Va.., Record No. 0688–10–4.

Docket NºRecord No. 0688–10–4.
Citation58 Va.App. 363, 710 S.E.2d 482
Case DateJune 21, 2011
CourtCourt of Appeals of Virginia

58 Va.App. 363
710 S.E.2d 482

Terrance Robert HENDERSON, s/k/a Terrence Henderson
v.
COMMONWEALTH of Virginia.

Record No. 0688–10–4.

Court of Appeals of Virginia, Alexandria.

June 21, 2011.


[710 S.E.2d 485]

Elizabeth Lauwaert Tuomey (Law Office of O. Keith Hallam, Jr., on briefs), for appellant.Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS, HALEY and ALSTON, JJ.HUMPHREYS, Judge.

[58 Va.App. 369] Terrance Robert Henderson (“Henderson”) argues in this appeal that the Circuit Court of Arlington County (“circuit court”) violated his due process right to confront the witnesses against him during a probation revocation hearing when it admitted Arlington Detective Rosa Ortiz's hearsay testimony [58 Va.App. 370] concerning other offenses,

[710 S.E.2d 486]

which either never resulted in charges against Henderson or were nolle prosequied.

I. BACKGROUND

Henderson was convicted in the circuit court on January 26, 2001 of robbery, in violation of Code § 18.2–58, and was sentenced to twenty-five years imprisonment with all but six years and eight months suspended. Upon his release from incarceration, the circuit court ordered him to be placed on probation for five years or less if the circuit court or probation officer released him sooner. On September 14, 2009, Henderson was released from prison and began his probation.1

On October 14, 2009, Henderson's probation officer sent a letter to the circuit court noting that Henderson had been arrested and charged with robbery on October 8, 2009, in Arlington County, Virginia, setting forth the specific probation conditions that Henderson violated,2 and recommending that the circuit court issue a bench warrant as a detainer and return Henderson to the circuit court for him to show cause as to why his probation should not be revoked. The probation officer's letter recommended that “the balance of the suspended sentence be imposed and the case be closed.” The robbery charge referred to in this letter was later nolle prosequied prior to the revocation hearing.

On February 26, 2010, the circuit court held a probation revocation hearing. At the hearing, the Commonwealth added an additional allegation that Henderson was also in violation of the condition of his probation that he be of general good [58 Va.App. 371] behavior to the previously alleged list of probation violations. 3 However, although a total of three conditions of probation were alleged to have been violated, the Commonwealth did not present any evidence regarding Henderson's alleged violation of Condition # 2, his alleged failure to report an arrest to his probation officer. Indeed, the only evidence offered in support of any of the alleged violations of the conditions of probation was the testimony of Detective Rosa Ortiz (“Ortiz”) who testified regarding two alleged robberies that she had investigated in October 2009. No charges were brought against Henderson in connection with one of these robberies, and the other robbery charge was nolle prosequied. During the Commonwealth's questioning of Ortiz, Henderson's counsel objected to her testimony regarding what the witnesses in both cases told her.4 The following colloquy took place regarding his objection:

[Henderson's counsel]: Your Honor, at this point I'm going to object on hearsay. And I understand that hearsay is admissible in these types of proceedings, but I think we have—there is a qualifier to that case.

I mean, I understand that the Davis case controls the hearsay question. However, in the Davis case the Court was referencing and admitting what they determined to be reliable hearsay, meaning hearsay from one government agent to another.

To the extent that the detective's testimony is going to cover information not reported from another government agent, or reported from another government agent

[710 S.E.2d 487]

but from [58 Va.App. 372] someone who was not a government agent, like one police officer interviews a victim and then the victim reports this crime, to the extent that we are getting into evidence that would be a victim's report of a crime, I think that that is the type of hearsay that should not be allowed in this type of proceeding.

Secondly, if that hearsay is admitted, that violates his right of confrontation, which he is guaranteed in probation violation hearings.

[Prosecutor]: Two things, Judge. The right of confrontation only attaches at trial. We are post-trial in this case. We are at a revocation proceeding.

Secondarily, I believe that the Court is in a good position to give the testimony that you are about to hear the appropriate weight that it's entitled to.

Certainly, to the extent that a victim or a person may report to a police officer is something that this Court can weigh and decide how much credibility should attach to that. So I would ask the Court to allow its admissibility and to weigh it appropriately.

The COURT: Overruled.

(Emphasis added).

Ortiz then proceeded to testify regarding the two alleged robberies. The first attempted robbery occurred on October 2, 2009, and Ortiz spoke with the alleged victim and his daughter by telephone on October 6, 2009. Ortiz testified that the victim informed her that he had received a phone call on his cell phone from an unknown number asking him to leave his apartment and to go to the courthouse to sign some legal documents regarding a family member. Upon leaving his apartment, a man approached the victim, and unsuccessfully tried to take the victim's bag, “a men's purse.” The victim and his daughter advised Ortiz that they had discovered that the call to the victim was made from Henderson's cell phone and that they called Henderson and had him come to their house to talk with the victim regarding the incident. Henderson informed them that he lends his phone to a lot of [58 Va.App. 373] people, and he could not remember whom he had loaned it to that day. When Ortiz spoke with Henderson, he told her “basically the same thing,” and later “that his phone was stolen and miraculously ... appeared on his porch two days later.” The victim then “explained to [Ortiz that] he really didn't want to file charges because people knew his daughter, and they all were in the neighborhood, they lived in the same neighborhood, they knew where he lived.” Apparently, no charges were ever brought against Henderson in connection with this incident.

The second robbery Ortiz investigated was the October 8, 2009 home invasion robbery which was the basis for Henderson's October 8, 2009 arrest. This charge was later nolle prosequied. Ortiz testified that her supervisor called her “at night at her house” to come to the police station “to investigate a home invasion robbery.” She went to the police station, and met with the victim on October 8, 2009. Ortiz testified that the victim informed her that three individuals came to his house, knocked on the front door, opened the unlocked front door after the victim ignored them because he looked and saw who they were, and then entered his home. Ortiz then testified that the victim identified one of the individuals as Henderson whom he had met a few weeks prior to the robbery at the probation office. After they entered his home, the victim explained to Ortiz that one of the other individuals was carrying a gun and displayed the firearm and that they stole some of his personal property. The victim then picked Henderson out of a photo lineup that Ortiz prepared.

Ortiz further testified that when she met with the victim and his mother, both ultimately refused to testify because they were scared of retaliation. The victim's mother informed Ortiz “she [had] heard gunshots around the house” the day before, “and that really scared her.” Ortiz stated that she never found a gun in this case, but that she had heard one of the other individuals arrested in the second alleged robbery speaking with his girlfriend from jail during a recorded telephone conversation about a gun by reference in a safe. The [58 Va.App. 374] individual gave the girlfriend the code for the safe, and later said repeatedly that the girlfriend had the gun. Ortiz also testified that in the course of

[710 S.E.2d 488]

the recorded telephone conversations from jail she heard this other individual state that “they got me and they got Terrence.”

After his arrest, Henderson informed Ortiz that people in the neighborhood “simply didn't like him, and that's why his name came up on these two different cases.” Henderson also told Ortiz that “between 8:00 and midnight, the day of the incident, he was on his porch talking to people and there were other people on the porch.” Ortiz also testified regarding a recorded telephone conversation that Henderson had with his mother while he was in jail. During that conversation, Henderson's mother informed him that the second victim's mother was asking for money in exchange for making the charges drop, but that she was not going to pay off the victim's mother. Henderson's mother also testified at the hearing, and reiterated that one of the girlfriends of the other individuals in the second alleged crime told her that the mother of the second victim was requesting money, but she was “not going to pay any money to her because [Henderson] didn't do anything.” Henderson's mother also testified that on the night of October 8, 2009, Henderson was not out on the porch when she arrived home at 10:20 p.m., but that he was upstairs in his bedroom and he did not leave the house that night.

The hearing concluded, and the circuit court found that Henderson had violated the terms and conditions of his probation, revoked Henderson's probation, and reinstated his previously suspended sentence. This appeal followed.

II. ANALYSIS

“The admissibility of 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...

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6 practice notes
  • Henderson v. Commonwealth, Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 28, 2012
    ...... hearsay testimony.” In an opinion published on June 21, 2011, a divided panel reversed the trial court. Henderson v. Commonwealth, 58 Va.App. 363, 710 S.E.2d 482 (2011). By order of July 26, 2011, this Court granted a petition for rehearing en banc and stayed [59 Va.App. 646] the mandat......
  • AGCS Marine Ins. Co. v. Arlington Cnty., Record No. 160221
    • United States
    • Virginia Supreme Court of Virginia
    • June 15, 2017
    ...had taken, to survive a motion to strike and submit the question to the jury. See 800 S.E.2d 173Taco Bell , 282 Va. at 133, 710 S.E.2d at 482. We never once suggested, as the County seems to infer, that Taco Bell would not have had a valid claim if the Commissioner had actually taken equipm......
  • Person v. Commonwealth, Record No. 0456-11-2
    • United States
    • Virginia Court of Appeals of Virginia
    • June 5, 2012
    ...contain the written instruction that appellant requested, we must presume that the trial court knows the law, Henderson v. Commonwealth, 58 Va. App. 363, 376, 710 S.E.2d 482, 489 (2011), and, that in this case, the trial court did not reject the instruction because it misstated the law. Gra......
  • Henderson v. Commonwealth, Record No. 120512.
    • United States
    • Virginia Supreme Court of Virginia
    • January 10, 2013
    ...him an appeal by a per curiam order. The case was heard by a three-judge panel. By a published opinion, Henderson v. Commonwealth, 58 Va.App. 363, 400, 710 S.E.2d 482, 500–01 (2011), the divided panel reversed the circuit court's judgment and remanded the case for a [285 Va. 325]new revocat......
  • Request a trial to view additional results
6 cases
  • Henderson v. Commonwealth, Record No. 0688–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • February 28, 2012
    ...... hearsay testimony.” In an opinion published on June 21, 2011, a divided panel reversed the trial court. Henderson v. Commonwealth, 58 Va.App. 363, 710 S.E.2d 482 (2011). By order of July 26, 2011, this Court granted a petition for rehearing en banc and stayed [59 Va.App. 646] the mandat......
  • AGCS Marine Ins. Co. v. Arlington Cnty., Record No. 160221
    • United States
    • Virginia Supreme Court of Virginia
    • June 15, 2017
    ...had taken, to survive a motion to strike and submit the question to the jury. See 800 S.E.2d 173Taco Bell , 282 Va. at 133, 710 S.E.2d at 482. We never once suggested, as the County seems to infer, that Taco Bell would not have had a valid claim if the Commissioner had actually taken equipm......
  • Person v. Commonwealth, Record No. 0456-11-2
    • United States
    • Virginia Court of Appeals of Virginia
    • June 5, 2012
    ...contain the written instruction that appellant requested, we must presume that the trial court knows the law, Henderson v. Commonwealth, 58 Va. App. 363, 376, 710 S.E.2d 482, 489 (2011), and, that in this case, the trial court did not reject the instruction because it misstated the law. Gra......
  • Henderson v. Commonwealth, Record No. 120512.
    • United States
    • Virginia Supreme Court of Virginia
    • January 10, 2013
    ...him an appeal by a per curiam order. The case was heard by a three-judge panel. By a published opinion, Henderson v. Commonwealth, 58 Va.App. 363, 400, 710 S.E.2d 482, 500–01 (2011), the divided panel reversed the circuit court's judgment and remanded the case for a [285 Va. 325]new revocat......
  • Request a trial to view additional results

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