Logan v. Commonwealth
| Decision Date | 03 March 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 |
J. Barry McCracken, Assistant Public Defender, for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Beales, Huff and Athey
OPINION BY JUDGE CLIFFORD L. ATHEY, JR.
Quartrez Logan ("Logan") was convicted in the Norfolk Circuit Court ("trial court") of attempting to obtain a firearm while subject to a protective order, in violation of Code §§ 18.2-27 and 18.2-308.1:4. Logan appeals the conviction, assigning as error the trial court’s admission into evidence of:
[T]he Returns portion of the preliminary protective order ... where [Logan] was denied the opportunity to confront and cross-examine the deputy sheriff that had completed the certificate of service reflecting that the extension of a protective order had been personally served upon [Logan] in violation of [his] right to confront witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
For the following reasons, we affirm Logan’s conviction.
On July 24, 2017, Sheila Chawlk ("Chawlk") appeared in the Civil Division of the General District Court for the City of Hampton ("Hampton GDC") seeking to extend a preliminary protective order ("PPO") against Logan to January 24, 2018. Logan did not appear at that hearing. Hampton GDC granted the extension to January 24, 2018, ordered a full hearing on January 24, 2018, and further ordered that Logan and Chawlk be served with notice of the extension and subpoenas for their appearance at the full hearing scheduled for January 24, 2018. According to the service returns sections of the PPO extension, Chawlk and Logan both received personal service of the extension and the January 24, 2018 hearing date the following day, on July 25, 2017. On July 31, 2017, Logan attempted to purchase two firearms from Superior Pawn and Guns ("Superior").
Logan was subsequently indicted for making a materially false statement on a criminal history consent form to obtain a firearm, in violation of Code § 18.2-308.2:2., and the misdemeanor charge of attempting to purchase a firearm on July 31, 2017 while being subject to a protective order, in violation of Code §§ 18.2-27 and 18.2-308.1:4.
At the trial, Michael Billingsley ("Billingsley") testified that he was working for Superior on July 31, 2017, when Logan entered the store to buy two firearms, a Ruger .38 and a Diamond Back 9mm. Billingsley advised Logan that he needed to complete two forms: a state transaction record ("SP-65") and a federal transaction record ("ATF 4473"), which Logan filled out in Billingsley’s presence.
On the SP-65, Logan represented that he was not subject to a protective order. Form SP-65 directed applicants to "[s]ee Important Notice 2" on the back of the form, which advised that it is unlawful under Code § 18.2-308.1:4 to buy any firearm while subject to a protective order. On the ATF 4473, Logan again represented that he was not subject to a protective order. The Commonwealth introduced both forms into evidence without objection.
Superior forwarded the completed forms to the Virginia State Police ("VSP") before declining to sell the firearms to Logan based upon VSP verification that Logan was, in fact, subject to a protective order.
Senior Trooper Walden ("Walden") scheduled an interview with Logan for September 18, 2017; Logan, however, did not appear. Walden tried to schedule another appointment with Logan, but Logan stated that he preferred to meet after September 27, 2017, because he had to appear in court regarding a protective order. Walden and Logan finally met on October 3, 2017.
At the meeting, Walden advised Logan of his Miranda rights—which Logan confirmed that he understood—and Logan agreed to speak with Walden. Walden asked Logan whether he remembered attempting to buy the firearms from Superior and showed Logan the forms that he completed and signed. After viewing the forms, Logan identified them as the same forms he completed and identified the signatures as his own. Walden then asked Logan, "do you remember the protective order?" Logan responded that he did remember it; however, he claimed that he thought the protective order only lasted for two days.
Walden confronted Logan with the fact that the protective order had been personally served on him six days before he tried to buy the firearms by showing him the statements in the return of service.2 Logan claimed that he never received personal service. Logan added that he "never knew she went back and had it extended." The Commonwealth offered a certified copy of the PPO containing the service returns into evidence.
Logan objected to the admission of this document into evidence on both hearsay and Fifth Amendment grounds,3 arguing that "information contained within the document is hearsay and [Logan] ha[d] the right to confront [the serving deputy] that created that particular content." The Commonwealth responded that the PPO had been "produced by the [c]ourt," "filed with the [c]ourt," and was "an official order of the [c]ourt." The trial court recognized the certified copy of the PPO as a "valid court record" and accepted it "as if it were the original;" accordingly, the trial court overruled Logan’s objection. The trial court ruled that the exhibit was admissible under "an exception to the Hearsay Rule."4
At the conclusion of the bench trial, the trial court found Logan not guilty of making a materially false statement on a criminal history consent form to obtain a firearm, in violation of Code § 18.2-308.2:2, but found Logan guilty of attempting to obtain a firearm while subject to a protective order, in violation of Code §§ 18.2-27 and 18.2-308.1:4. The trial court sentenced Logan to six (6) months in jail, suspending three (3) months conditioned upon Logan’s good behavior. This appeal followed.
We review whether the admission of evidence violated the right of confrontation and "whether a particular category of proffered evidence is testimonial hearsay" de novo , 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) ), but "we do not substitute our judgment for that of the trial court" in considering discretionary matters, such as witness credibility, Carter v. Commonwealth, 293 Va. 537, 543, 800 S.E.2d 498 (2017). Regarding discretionary matters, "we consider only whether the record fairly supports the trial court’s action." Id. (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634 (2009) ). We must "consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial."
Hairston v. Commonwealth, 67 Va. App. 552, 560, 797 S.E.2d 794 (2017). This requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755 (1980) (emphasis and citation omitted).
The Sixth and Fourteenth Amendments only guarantee the right to confrontation when the out-of-court statement a declarant makes against an accused is "testimonial." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324, 129 S.Ct. 2527, 2539–40, 174 L.Ed.2d 314 (2009). "A statement intended to bear witness against the accused is testimonial." Mooney v. Commonwealth, 297 Va. 434, 439, 828 S.E.2d 795 (2019). If the statement is testimonial, two requirements must be satisfied to respect the right of confrontation; first, the witness must be unavailable, and second, the criminal defendant must have had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365–66, 158 L.Ed.2d 177 (2004) ; Dickens v. Commonwealth, 52 Va. App. 412, 418, 663 S.E.2d 548 (2008).
Logan objected that he had no opportunity to cross-examine the deputy who created the statements in the service returns portion of the PPO; accordingly, he contends that his right to confrontation was violated. Therefore, resolving this matter turns upon whether statements in the return of service on a protective order are testimonial. If they are, Logan’s right to confrontation was violated when the deputy was not at trial. If they are not, Logan did not have a right of confrontation.
Because this is an issue of first impression in Virginia,5 we examine controlling decisions, which have applied the primary purpose test in discerning the difference between statements that are testimonial and statements that are not testimonial. First articulated in Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273–74, 165 L.Ed.2d 224 (2006), the Court inquired whether the primary purpose of the statement was "to establish or prove past events potentially relevant to later criminal prosecution." The test has been refined case-by-case since the Court decided Davis.
In Melendez-Diaz, 557 U.S. at 321, 129 S.Ct. at 2538, which Logan relies upon, the Court considered whether statements examining narcotics in a certificate of analysis were testimonial. In that case, the government argued that the statements were not testimonial because a certificate of analysis is an official record. In finding them testimonial, the Court reasoned:
Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not...
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