Johnson v. Commonwealth
| Decision Date | 18 October 2018 |
| Docket Number | Record No. 170963 |
| Citation | 819 S.E.2d 425 |
| Parties | Dese Terrell JOHNSON v. COMMONWEALTH of Virginia |
| Court | Virginia Supreme Court |
Robert A. May, Assistant Public Defender, for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
PRESENT: All the Justices
OPINION BY CHIEF JUSTICE DONALD W. LEMONS
In this appeal, we consider whether admitting hearsay evidence in a probation revocation proceeding violated Dese Terrell Johnson’s ("Johnson") right to confront witnesses against him under the Due Process Clause of the Fourteenth Amendment.
In 2005, Johnson was convicted of rape in the Circuit Court of King George County ("circuit court"). The circuit court sentenced Johnson to 30 years’ incarceration with 20 years suspended. The suspended portion of Johnson’s sentence was conditioned on good behavior and supervised probation. In June 2016, approximately one and a half years after Johnson’s release, Johnson’s probation officer reported to the Commonwealth’s Attorney of King George County that Johnson had violated multiple conditions of his probation, including the condition that he "not have any contact with anyone under the age of 18." Upon request of the Commonwealth’s Attorney, the circuit court issued a capias for Johnson’s arrest on the ground that he had "apparently violated conditions of his probation."
The circuit court held a probation revocation hearing on August 23, 2016, where Johnson appeared with counsel. At the beginning of the hearing, Johnson objected to a portion of the "major violation report" prepared by Johnson’s probation officer, which states:
On May 31, 2016, this [Probation] Officer was contacted by Caroline Sheriff’s Detective William Greene, who stated that on May 30, 2016 two juvenile females, ages 16 and 17, were approached by Johnson while at the [Rappahannock] river. Johnson told the females his name was Justice and he goes by "J." Johnson asked the females their age and they were honest with Johnson. Johnson gave his number to the females. The females were uncomfortable with the situation and looked on Fredericksburg.com and WatchDog.com to see if they saw the person who approached them. The females found Johnson on Watchdog.com during their search and were able to identify the man in the picture as the man who approached them claiming to be Justice. The females engaged in a text message conversation with Johnson that evening using the texting app, Pinger.com, where Johnson made multiple attempts to meet the females during the evening.
As part of his argument in support of his objection, Johnson’s counsel stated that he checked the websites in the major violation report and could not "find [Johnson’s information] there." As a result, Johnson challenged the "veracity" of the girls’ allegations. He contended that if he was not afforded an opportunity to cross examine the girls, it would violate his right to confront witnesses against him under the Due Process Clause of the Fourteenth Amendment. Consequently, he objected to any hearsay evidence of the girls’ allegations.
The Commonwealth responded that under Henderson v. Commonwealth , 285 Va. 318, 736 S.E.2d 901 (2013), "hearsay is admissible in a probation violation revocation hearing," if it has "some indicia of reliability." The Commonwealth stated that it would present witnesses whose testimony would corroborate the girls’ allegations, thereby satisfying the reliability test under Henderson .
After reviewing Henderson , the circuit court took Johnson’s objection under advisement. The court explained that hearsay evidence of the girls’ allegations "may be corroborated by a number of facts that make it reliable." The court determined that the girls need not "give testimony in open court so that the defendant can cross-examine them," if the Commonwealth establishes that the girls’ statements are reliable.
The Commonwealth called Deputy William Greene of the Caroline County Sheriff’s Office ("Greene"). He testified that while he was on patrol, one of the girls’ mothers "flagged [him] down," and "directed [him] to go to a residence in the Town of Port Royal where her daughter was located." Greene proceeded to the residence and met with the girls, who were minors at that time.
When the Commonwealth asked Greene what the girls "relay[ed]" to him, Johnson objected on confrontation grounds, arguing that Greene could not testify to the girls’ statements because the Commonwealth had not established that the statements were "reliable." The Commonwealth responded that Johnson’s "concerns" about "reliability" were "fodder for [the] cross-examination" of Greene. Agreeing with Johnson, the circuit court ruled that "before anyone gives direct testimony as to what these two girls say happened, [the court] want[s] to have evidence from the person who has received these statements what they did to determine whether there’s truth to those statements."
Greene then testified that the girls gave him the name Dese Johnson and that he had not heard the name beforehand. Greene stated he "confirm[ed] that there was a person living in the area that was named Dese Johnson," who "was a convicted sex offender." Greene also "confirm[ed]" that "the description that the girls gave [him]" of the man who approached them "match[ed]" the description of the sex offender named Dese Johnson "on the Virginia State Police website." Before collecting a written statement from the girls, he stressed that they should be honest.
Greene further testified that the girls emailed him screenshots of text messages that the girls claimed to have exchanged with Johnson. In the text messages, the girls identified themselves by their first names. The other party identified itself as "Justice." The girls asked Justice for his "full name," and Justice responded, "sorry but I don’t give my full name to people I just met."
The text messages contain statements about Justice and the girls’ ages. For example, the girls stated, to which Justice replied, "Thanks." Justice also told the girls they were "mature for [their] age." The girls then asked, "What is the youngest girl you’ve talked to?" Justice responded, "THIS IS NOT WHAT I DO TALK TO YOUNG GIRLS FOR A LIVING." (emphasis in original). Justice made multiple attempts to meet the girls, asking questions such as "[w]hat’s the chance of me seeing yall tonight?" and "where yall at now?" Justice also told the girls he was "attracted" to them and "want[ed]" them.
The Commonwealth asked Greene why the text messages "were in any way related to Dese Johnson." Greene responded that the text messages "would have to be [related] because of the context of the conversation that I had with the girls w[as] consistent with some of the things that were in the screenshots that were emailed to me."
The Commonwealth offered the screenshots of the text messages into evidence. Johnson objected on the grounds of "relevance, authenticity, [and] lack of foundation." Johnson asserted that "[t]here’s been no testimony" as to whom the phone numbers in the text messages belong. He contended that nothing "tie[d]" the conversation to Johnson except the girls’ hearsay statements, and argued that the screenshots were therefore not "reliable enough" to be admissible. The Commonwealth responded that the evidence it presented established an "indicia of [the text messages’] reliability" because the girls gave Greene the name Dese Johnson, Greene "verif[ied] in his investigation that a person named Dese Johnson existed in the area," and Johnson "matched" the girls’ description of the man who approached them. The circuit court admitted the screenshots over Johnson’s objection, but stated no reason for its ruling.
The circuit court subsequently ruled that hearsay evidence of the girls’ statements was admissible. The court determined that there was sufficient evidence of the statements’ "reliability," given that Johnson’s name "was not suggested to [the girls]," Greene "confirmed that [Johnson] lives in the area," "the girls were seventeen years of age, not ten or twelve," and the girls’ description of their interaction with Johnson was "consistent with [the] texts [messages]." Accordingly, the court ruled that Greene could testify to the girls’ statements. The circuit court subsequently admitted, over Johnson’s renewed objection on confrontation grounds, the major violation report and statements written by the girls describing their interaction with Johnson.
Johnson’s probation officer, Patricia Adkins ("Adkins"), testified to Johnson’s behavior while on probation. She described Johnson’s demeanor as "rude and demanding." During one of their meetings, she told Johnson he needed to begin "mandatory" sex offender treatment. Adkins testified that when she "told [Johnson] that he was being placed into treatment, he banged his head on the table, and then he picked his head up, and he pushed the table at [Adkins]," causing the table to "just barely" hit her. Adkins expressed "concerns" about Johnson remaining "in the community," stating "[s]omeone is going to get hurt very seriously, and it’s going to be by Mr. Johnson."
Adkins testified that Johnson "was employed at the Dollar Tree or Dollar General," but reported to Adkins that he "lost his job" in April 2016. In the text messages, the man who identified himself as Justice stated that he works at "[D]ollar [T]ree."
Adkins further testified that Johnson was charged with malicious wounding and convicted of perjury based on his "testimony in [a proceeding concerning] the malicious wounding" charge, which was dismissed. The circuit court subsequently admitted, without objection, a conviction order showing Johnson was convicted of perjury in July 2016.
After the Commonwealth rested, Johnson proffered evidence he would have submitted during cross examination of the girls. Johnson stated the...
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