Logan v. Commonwealth

• Decision Date: 21 July 2020
• Docket Number: Record No. 1735-18-1
• Parties: Quartrez LOGAN, s/k/a Quartrez Rashad Logan v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 309

845 S.E.2d 228

Quartrez LOGAN, s/k/a Quartrez Rashad Logan

v.COMMONWEALTH of Virginia

Record No. 1735-18-1

Court of Appeals of Virginia.

JULY 21, 2020

J. Barry McCracken, Assistant Public Defender, for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys, Petty, Beales, Huff, O'Brien, Russell, AtLee, Malveaux and Athey

OPINION BY JUDGE ROBERT J. HUMPHREYS

Following a bench trial, appellant Quartrez Rashad Logan ("Logan") was convicted of attempting to purchase a firearm while subject to a protective order, in violation of Code § 18.2-27, by the Circuit Court of the City of Norfolk ("circuit court"). On appeal, a divided panel of this Court affirmed the conviction. Logan v. Commonwealth, 71 Va. App. 568, 838 S.E.2d 548 (2020).

We subsequently granted Logan's petition for rehearing en banc , stayed the mandate of the panel decision, and reinstated the appeal on the docket of this Court. The sole issue on appeal in this case is whether a return of service on a protective order is subject to the application of the Confrontation Clause of the Sixth Amendment to the Constitution of the United States.

I. BACKGROUND

In the light most favorable to the Commonwealth as the party that prevailed below, the evidence pertinent to this issue was as follows:

On July 24, 2017, the General District Court for the City of Hampton granted Shelia Chawlk's ("Chawlk") request to extend a preliminary protective order against Logan to January 24, 2018. Logan did not appear before the Hampton GDC for the extension hearing, and the protective order was extended. The next day, July 25, 2017, a sheriff's deputy filed a return of service on the protective order indicating that he had personally served both Logan and Chawlk with a copy of the preliminary protective order extension and subpoenas for their appearance at a full hearing scheduled for January 24, 2018. The reverse side of the order contained a "Returns" section, indicating that Logan was personally served on July 25, 2017 at 8:20 a.m. with the serving deputy's name and signature.

On July 31, 2017, Logan attempted to purchase two firearms from Superior Pawn & Gun in Norfolk. The store clerk asked Logan to fill out two forms, an "SP65" and "ATF 4473," required by state and federal law respectively, before Logan could complete the firearms purchase. Both forms ask the purchaser to indicate whether he or she is subject to a protective order or restraining order. Both forms also ask whether the purchaser has been convicted of a felony. Logan completed both forms in the presence of the store clerk and indicated on both that he was not subject to a protective order.

On August 1, 2017, Senior Trooper M.S. Walden ("Trooper Walden") of the Virginia State Police ("VSP") received the forms, and the VSP refused to authorize the firearms purchase. Trooper Walden scheduled an initial meeting with Logan on September 18, 2017, but Logan did not appear. Logan told Trooper Walden that he forgot about the meeting and asked if their meeting "could wait until after the 27th [of September] because [Logan had] court on a protective order."

Trooper Walden and Logan finally met on October 3, 2017. Trooper Walden showed Logan the SP65 and ATF 4473 forms and confirmed that Logan signed both forms. Trooper Walden then showed Logan the preliminary protective order extension and asked whether Logan remembered it. Logan responded that he knew he was subject to a protective order, but thought the order only lasted two days and had expired by the time he attempted to purchase the firearms. Trooper Walden showed Logan the return of service indicating that Logan was personally served with the protective order extension. Logan responded that he "never knew she went back and had it extended," and claimed he never received personal service.¹

A grand jury subsequently indicted Logan for making a false statement on a criminal history consent form to obtain a firearm, a felony, in violation of Code § 18.2-308:2, and he was also charged with attempting to purchase a firearm while subject to a protective order, a misdemeanor, in violation of Code § 18.2-27.

At the bench trial on October 11, 2018, the Commonwealth attempted to introduce a certified copy of the extended protective order into evidence. Logan objected to its admission, arguing that the return of service portion of the order, which indicated that Logan was personally served with the protective order by a deputy sheriff on July 25, 2017 at 8:20 a.m., contained testimonial hearsay and its admission violated Logan's right to confrontation under the Sixth Amendment. Specifically, Logan argued that "information contained within the document is hearsay and [Logan] ha[d] the right to confront [the sheriff's deputy] that created that particular content." The Commonwealth argued that, as "an official order of the Court," the protective order is "the same as a Court order." The circuit court overruled Logan's objection and admitted the preliminary protective order as a "valid court record."

The circuit court found Logan guilty of misdemeanor attempt to purchase a firearm while subject to a protective order, in violation of Code § 18.2-27, and not guilty of the felony charge. The circuit court sentenced Logan to six months’ imprisonment, with three months suspended. This appeal follows.

II. ANALYSIS

A. Standard of Review

"Although we will not disturb on appeal decisions regarding the admissibility of evidence absent an abuse of the [circuit] court's discretion, we review de novo [the constitutional question of] whether a particular category of proffered evidence is testimonial hearsay." Cody v. Commonwealth, 68 Va. App. 638, 658, 812 S.E.2d 466 (2018) (quoting Holloman v. Commonwealth, 65 Va. App. 147, 170, 775 S.E.2d 434 (2015) ).

B. The Application of the Confrontation Clause

The Confrontation Clause of "[t]he Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, ... provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ " Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009) (some alterations in original) (internal citation omitted). Within the meaning of the Confrontation Clause, "witnesses" means "those who ‘bear testimony,’ " or "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004) (alteration in original) (citation omitted). Thus, the Confrontation Clause prohibits the introduction of "testimonial" statements by a witness who does not testify at trial, unless the witness is "unavailable to testify, and the defendant ... had a prior opportunity for cross-examination." Id. at 54, 124 S.Ct. at 1365.

"Given our dual obligations to decide cases on the ‘narrowest and best grounds’ coupled with that to avoid deciding constitutional issues if possible, ... the first step in any Confrontation Clause analysis involves determining whether the statements in question are subject to constitutional protection under the Sixth Amendment." Cody, 68 Va. App. at 657-58, 812 S.E.2d 466. The Commonwealth does not assert that the serving deputy was unavailable to testify or that Logan had a prior opportunity to cross-examine him, so the only question before us is whether the statements in the return of service on a protective order are "testimonial" as that term is understood in constitutional parlance.

"[T]he principal evil at which the [Confrontation] Clause was directed was the civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence against the accused." Crawford, 541 U.S. at 50, 124 S.Ct. at 1363 (emphasis added). The focus of post- Crawford jurisprudence has primarily been on statements made in various forms, and under equally various conditions, in an effort to distinguish those that constitute "[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact" primarily for use in a criminal prosecution, from those that do not so qualify.² Id. at 51, 124 S.Ct. at 1364 (alteration in original).

A statement qualifies as testimonial if the "primary purpose" of the statement was to "creat[e] an out-of-court substitute for trial testimony." Michigan v. Bryant, 562 U.S. 344, 369, 131 S.Ct. 1143, 1162, 179 L.Ed.2d 93 (2011). Essentially, testimonial statements are those that "are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ " Melendez-Diaz, 557 U.S. at 310-11, 129 S.Ct. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 2278, 165 L.Ed.2d 224 (2006) ). "[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." Cody, 68 Va. App. at 658, 812 S.E.2d 466 (alteration in original) (quoting Ohio v. Clark, 576 U.S. 237, 245, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015) ).

In determining the "primary purpose" of a statement, courts must consider "all of the relevant circumstances," and determine the objective purpose of the statement at the time it was made—not the statement's possible availability for use at a later trial. Bryant, 562 U.S. at 358, 369, 131 S.Ct. at 1155–56, 1162. "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred." Id. at 360, 131 S.Ct. at 1156. Where the primary purpose of a statement was not to create an out-of-court substitute for trial testimony, the Confrontation Clause is satisfied and "the admissibility of [t...