Jasper v. Com., Record No. 1120-06-2.
| Docket Nº | Record No. 1120-06-2. |
| Citation | 49 Va. App. 749, 644 S.E.2d 406 |
| Case Date | May 22, 2007 |
| Court | Court of Appeals of Virginia |
v.
COMMONWEALTH of Virginia.
[644 S.E.2d 407]
(Steven Shareff, on brief), for appellant. Appellant submitting on brief.
Leah A. Darron, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges ELDER, KELSEY and McCLANAHAN.
Opinion by Judge LARRY G. ELDER.
Bobby Jasper (appellant) appeals from his bench trial conviction for the felony of reckless driving while his license was revoked after having twice been convicted of driving under the influence.1 On appeal, he contends the trial court erred in admitting his Department of Motor Vehicles (DMV) transcript,
over his Confrontation Clause objection, to prove that his license had been revoked and that he had notice of the revocation. We hold the admission of appellant's DMV transcript did not violate the Confrontation Clause, and we affirm.
At about 5:45 p.m. on August 26, 2005, Louisa County Sheriff's Corporal Christopher Powell observed appellant driving a Ford Tempo on Route 250. Corporal Powell "knew that from a previous arrest back in July of [appellant], . . . he was suspended or revoked, DUI related." Corporal Powell activated his lights and followed behind appellant's vehicle. Appellant did not stop immediately but eventually pulled over and exited
his vehicle, and Corporal Powell took him into custody.
Appellant was indicted for "feloniously driv[ing] or operat[ing] a motor vehicle on the highway in a manner that endangered the life, limb, or property of another after his driver's license or privilege to drive had been revoked based on a conviction of driving while intoxicated, 2nd offense."
At trial for the offense on January 26, 2006, the Commonwealth offered into evidence appellant's Department of Motor Vehicles (DMV) "Transcript of Driver History Record as of 2006/01/24." The transcript showed it was requested by "CA RD Short," which appellant represents on brief was Commonwealth's Attorney R.D. Short. It also contained the following printed information: "* * *Attention: Revoked DUI 2nd 46.2-391* * *", "* * *Notice of Suspension/Revocation Received* * *", and "Driver License Status: Revoked." It showed a conviction for second offense driving under the influence rendered on October 19, 2001, with a concomitant license suspension of three years. It also showed a suspension for an "indefinite" period effective July 19, 2004, based on "ct order fail to pay fine," "conviction: 2001/10/19 Circuit Ct Charlottesville City," "Notified: 2001/10/19 by Court DC225."
The transcript contained the following attestation clause:
This is to certify, in accordance with Section 46.2-215 of the Code of Virginia, that this machine produced transcript, transmitted by electronic means to CA RD Short is an accurate depiction of the driving record of Jasper, Bobby, DL No [as listed], as maintained by the Virginia Department of Motor Vehicles as of [2006/01/24]; and that all notice of orders indicating personal delivery to the driver were sent and received by the driver pursuant to Section 46.2-416 of the Code of Virginia.
Appellant objected to admission of the DMV transcript on the ground that its contents were "testimonial" hearsay under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). He argued as follows:
[U]nder the narrowest construction of . . . Crawford, the core class of testimonial statements would include affidavits and any similar pretrial statements a declarant would reasonably expect would be used prosecutorially. . . . This is obviously an attestation of somebody out of court that certain records were reported to it and were accurate, rather than the actual records of the revocation and of the—this is obviously an out-of-court statement by a . . . declarant. And . . . obviously it is something [that] would reasonably [be] expected to be used prosecutorially. That's what these are for obviously. So for these reasons, based on [Crawford,] we say that this is testimonial and we would ask the Court to exclude it.
The trial court overruled the objection, briefly describing the holding in Crawford and reasoning as follows:
The Court has seen no case where [Crawford's statements about testimonial hearsay] have been applied to the official records of the Commonwealth, in this case the Department of Motor Vehicles. . . . The matters that would be the subject of the substance of this record would generally be in two categories. One, court documents showing various court dispositions in which the defendant would have been present or had the opportunity to be present or the official
acts of the Department of Motor Vehicles and their records, which the Court finds to be fundamentally different than the concern that was addressed in Crawford of a wife's statement being used against her husband. . . . So based upon those reasons the Court will overrule the Crawford objection. . . .
The trial court convicted appellant of the charged offense, and after sentencing, he noted this appeal.
Appellant's conviction for violating Code § 46.2-391, as charged in the indictment, required proof, inter alia, that appellant committed the act of driving at issue
"after his driver's license or privilege to drive had been revoked based on a conviction of driving while intoxicated, 2nd offense." Appellant challenges, on Confrontation Clause grounds, the admission into evidence of his DMV driving transcript to prove both that his license had been revoked and that he had notice of that revocation.2
The Confrontation Clause of the Sixth Amendment to the United States Constitution, a "procedural guarantee" that also "applies to state prosecutions," Michels v. Commonwealth, 47 Va.App. 461, 466, 624 S.E.2d 675, 678 (2006), provides that, "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him," U.S. Const. amend. VI. The United States Supreme Court's 2004 decision in Crawford, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177, clarified...
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Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
...defendant’ ” in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S.E.2d 406, 410 (2007)); see also McCormick, 54 F.3d at 222 (“It follows, therefore, that a releasee's [58 Va.App. 397] interest ......
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Henderson v. Commonwealth, Record No. 0688–10–4.
...defendant’ ” in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S.E.2d 406, 410 (2007)). These allegations therefore directly implicated Henderson in violating the terms of his probation. Speci......
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State v. Leibel, No. S–12–1047.
...654 (Ariz.App.2007); State v. Murphy, supra note 51; Com. v. McMullin, supra note 43; State v. Vonderharr, supra note 43; Jasper v. Com., 49 Va.App. 749, 644 S.E.2d 406 (2007). But see Com. v. Parenteau, 460 Mass. 1, 948 N.E.2d 883 (2011). 54.State v. Adefehinti, 510 F.3d at 328. 55.Melende......
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Wimbish v. Com., Record No. 2873-06-3.
...was performed on a breath test machine was testimonial). 4. We recently reaffirmed Michels' holding in Jasper v. Commonwealth, 49 Va.App. 749, 644 S.E.2d 406 (2007). In Jasper, we extended Michels' holding that "a certification of an out-of-state official regarding an absence of a cert......
-
Henderson v. Commonwealth of Va.., Record No. 0688–10–4.
...defendant’ ” in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S.E.2d 406, 410 (2007)); see also McCormick, 54 F.3d at 222 (“It follows, therefore, that a releasee's [58 Va.App. 397] interest ......
-
Henderson v. Commonwealth, Record No. 0688–10–4.
...defendant’ ” in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S.E.2d 406, 410 (2007)). These allegations therefore directly implicated Henderson in violating the terms of his probation. Speci......
-
State v. Leibel, No. S–12–1047.
...654 (Ariz.App.2007); State v. Murphy, supra note 51; Com. v. McMullin, supra note 43; State v. Vonderharr, supra note 43; Jasper v. Com., 49 Va.App. 749, 644 S.E.2d 406 (2007). But see Com. v. Parenteau, 460 Mass. 1, 948 N.E.2d 883 (2011). 54.State v. Adefehinti, 510 F.3d at 328. 55.Melende......
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Wimbish v. Com., Record No. 2873-06-3.
...was performed on a breath test machine was testimonial). 4. We recently reaffirmed Michels' holding in Jasper v. Commonwealth, 49 Va.App. 749, 644 S.E.2d 406 (2007). In Jasper, we extended Michels' holding that "a certification of an out-of-state official regarding an absence of a cert......