Henderson v. Commonwealth

• Citation: 736 S.E.2d 901,285 Va. 318
• Decision Date: 10 January 2013
• Docket Number: Record No. 120512.
• Parties: Terrance Robert HENDERSON v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

285 Va. 318

736 S.E.2d 901

Terrance Robert HENDERSON

v.COMMONWEALTH of Virginia.

Record No. 120512.

Supreme Court of Virginia.

Jan. 10, 2013.

Elizabeth Lauwaert Tuomey (Clardy & Tuomey, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appelle.

Present: KINSER, C.J., LEMONS, GOODWYN, MILLETTE, and MIMS, JJ., and RUSSELL and LACY, S.JJ.

Opinion by Senior Justice CHARLES S. RUSSELL.

This appeal requires us to consider the limited right of a criminal defendant to confront his accusers in a probation revocation proceeding.

Facts and Proceedings

In 2001, Terrance Robert Henderson was convicted in the Circuit Court of Arlington County of robbery and use of a firearm. He was sentenced to 25 years' imprisonment with 18 years and four months suspended. He was released from prison on probation in September 2009 and returned to Arlington to live with his mother. Less than a month after his release, he was arrested on a new robbery charge in Arlington. His probation officer reported to the court that Henderson had violated the terms of his probation, specifically the conditions that he would obey all laws and report any arrests. He requested that Henderson be brought before the court to show cause why his probation should not be revoked. The probation officer recommended that Henderson be required to serve the entire unserved balance of his original sentence.

On February 26, 2010, the court conducted a revocation hearing. The Commonwealth called as its sole witness Detective Rosa Ortiz of the Arlington County Police Department.¹ Henderson's counsel objected that her testimony would be inadmissible as hearsay and would also violate Henderson's right to confront the witnesses against him. The court overruled the objection.

The detective testified that she had been assigned to investigate an attempted robbery that had occurred on October 2, 2009. The victim told her that he had received a cellular telephone call from an unknown man who stated that he was calling from the Arlington County Sheriff's Department. The caller asked the victim to come to the courthouse to sign some legal documents with reference to a family member. When the victim failed to leave his apartment, he received a second call from the same caller. The victim then left his apartment and observed a man across the street who then crossed the street and asked the victim for a cigarette. The man then tried to seize a “man's purse” the victim was carrying, but the victim struggled with him and fought him off. The victim returned to his apartment and called the police.

Later, the detective testified, the victim's daughter came to his apartment and found that the calls the victim had received, ostensibly from the Sheriff's department, were recorded on her father's cellular telephone as having come from a telephone number of a person she knew as “Terrance.” Terrance's number was saved in her own cellular telephone. He lived in the same neighborhood. The victim and his daughter later asked Henderson about the calls and he told them that he lends his telephone to a lot of people and didn't remember to whom he had lent it on that day. The detective later questioned Henderson about the use of his telephone and he told her the same story. The detective testified that the victim later told her that “he really didn't want to file charges because people knew his daughter ... they live in the same neighborhood and they knew where he lived.” Henderson was never prosecuted for this crime.

The detective also testified to a different crime, a “home invasion robbery” that occurred six days later. The victim of that crime came to the police station, and she interviewed him there. The victim told her that he heard a knock at his front door on October 8, 2009. He looked out and saw three men outside whom he knew. He didn't answer the knock, but he had forgotten to lock the door, so they opened it and entered his home. The first man to enter had a firearm in his waistband. The second man was known to him as “Terrance.” He and “Terrance” had met while both were sitting in the lobby of the probation office a short time earlier. The victim identified Henderson's photograph from an array as the man he knew as “Terrance,” the second of the three who had entered his home on October 8 and stolen some of his property.

Henderson and his two co-defendants in the “home invasion robbery” were arrested on felony warrants. The detective testified that she had interviewed Henderson in the jail about both offenses. He denied participation in either crime. He said that his name was connected with both cases because people in the neighborhood didn't like him. With respect to the use of his telephone in the attempted robbery of October 2, this time he told the detective a different story, that “his phone [was] stolen and, miraculously, it appeared on his porch two days later.”

Henderson admitted that he knew his two co-defendants and that he had been riding with them in a Lincoln automobile. Search warrants were obtained for Henderson's home and for the Lincoln. No evidence was found in the home, but property stolen in the home invasion robbery was found in the Lincoln.

The detective testified that she had monitored “about maybe 20” telephone calls made by Henderson and his two co-defendants from the jail after their arrests. The gunman in the home invasion robbery was identified as a man named Jones. He called Anthony, the brother of Terrance Henderson, telling Anthony to “take Danny's [the victim's] stuff out of your house.” The detective also testified that the monitored calls contained “a lot of threats towards the victim.” Jones called his girlfriend to ask her to get Henderson's brother Anthony to “talk to” the victim. When Anthony refused, Jones called one Darius Price, who agreed to “talk to” the victim and persuade him to change his mind about prosecuting the case. The calls later indicated that Price and the girlfriend had complied with Jones' instructions and that they had returned some of the victim's stolen property to him.

Another monitored call was from Henderson to his mother. The detective testified that Henderson told his mother that the victim's mother was demanding a cash payment as the price of “dropping the charges.” Henderson's mother refused to make any such payment. During this conversation, Henderson told his mother that during the robbery, “Danny pulled a knife on Martin, and Danny [the victim] should go to jail.” Martin was identified as the third robber. In a monitored call made by Jones from the jail, Jones said: “[T]hey got me and they got Terrance.... [H]ow did they get Martin?”

The detective testified that when she went to interview the victim, he and his mother were “extremely scared of retaliation.” The mother said that “the day before the [c]ourt [proceedings] she heard gunshots around the house, and that really scared her.” Ultimately, the victim refused to testify and the Commonwealth took a nolle prosequi in the home invasion robbery case.

Several times during the detective's testimony and again at the close of the evidence, defense counsel renewed her objection on hearsay and confrontation grounds, but the court overruled the objections and found that Henderson had violated the terms and conditions of his probation. The court stated no reasons for its ruling. The court revoked the probation and entered an order requiring Henderson to serve the remaining 18 years and four months of his original 2001 sentence.

Henderson appealed to the Court of Appeals, which granted 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 new revocation hearing. The Court granted the Commonwealth a rehearing en banc. The Court en banc, with ten judges sitting, six judges joining, two judges concurring in part, and two judges dissenting, vacated the panel decision and affirmed the judgment of the circuit court. The en banc Court held that there was no error in the admission of the hearsay testimony and that Henderson had not preserved his challenge to the failure of the trial court to state its reasons for admitting the hearsay evidence. Henderson v. Commonwealth, 59 Va.App. 641, 648 n. 4, 668, 722 S.E.2d 275, 279 n. 4, 289 (2012) (en banc). We awarded Henderson an appeal.

Analysis

Henderson assigns two errors to the Court of Appeals' judgment en banc: (1) that the judgment violated his constitutional right to confront his accusers and (2) that the judgment erroneously affirmed the circuit court's error in admitting evidence in violation of the rule against hearsay. When confrontation rights are asserted in a revocation proceeding, for reasons hereinafter stated, we consider the rule against hearsay to be entirely subsumed within the probationer's limited due process right of confrontation. Therefore, we will not consider Henderson's second assignment of error.

Henderson also argues on appeal that the circuit court had a duty to state for the record the specific “good cause” it found for denying his right to confront the witnesses against him. The Court of Appeals held that claim procedurally defaulted, not having been preserved for appeal. Henderson v. Commonwealth, 59 Va.App. 641, 648 n. 4, 722 S.E.2d 275, 279 n. 4 (2012) (en banc). Henderson contends that the Court of Appeals erred in so holding, but that ruling is not before us because it was not made the subject of any assignment of error on appeal to this Court. Rule 5:17(c)(1)(i).

Because parole revocation proceedings occur after a criminal prosecution has ended in a conviction, a parolee is not entitled to the “full panoply” of constitutional rights to which he was entitled at trial. Morrissey v. Brewer 408...