Michels v. Com., Record No. 2008-04-4.

• Citation: 624 S.E.2d 675,47 Va. App. 461
• Decision Date: 17 January 2006
• Docket Number: Record No. 2008-04-4.
• Parties: Robert P. MICHELS v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

624 S.E.2d 675

47 Va. App. 461

Robert P. MICHELS v. COMMONWEALTH of Virginia.

Record No. 2008-04-4.

Court of Appeals of Virginia, Alexandria.

January 17, 2006.

Eric E. Clingan, for appellant.

Stephen R. McCullough, Assistant Attorney General (Judith Williams Jagdman, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER and FELTON, JJ.

FITZPATRICK, Judge.

Robert Michels (appellant) appeals his conviction by a jury of three counts of obtaining money by false pretenses in violation of Code § 18.2-178. He argues that the introduction of documents from the Delaware Secretary of State, which certified that two entities were not corporations licensed in Delaware, violated his Sixth Amendment rights. He contends that because such records were "testimonial hearsay," his rights guaranteed to him by the Confrontation Clause were violated when the documents were introduced at trial without a showing that the Delaware Secretary of State was unavailable and that he had a prior opportunity to cross-examine her. We hold that the two certificates were not "testimonial hearsay," that they were introduced pursuant to a firmly rooted hearsay exception, and affirm the jury verdict.¹

I. Background

A. HGL

On appeal, we review the evidence and all reasonable inferences flowing therefrom in the light most favorable to the Commonwealth, the party prevailing below. Wilson v. Commonwealth, 46 Va.App. 408, 413, 617 S.E.2d 431, 433 (2005). So viewed, the evidence establishes that in September 2002, appellant met Allison Formal (Formal) through an online dating website. At that time, Formal was the vice-president of a biotechnology company and appellant offered to help her with company investments. Appellant represented to Formal that he was the retired chief executive officer of a large company, which he sold for millions of dollars. He also told Formal that he owned a plane located in a hangar at Washington Dulles International Airport.

In November 2002, appellant began to discuss a company called Hydrogeologic (HGL) with Formal. Appellant represented that he was a close friend of one of the founders of HGL, John Robertson (Robertson), because their planes were located in the same airport hangar. Appellant told Formal that he could invest up to one hundred thousand dollars in HGL stock before the company had its initial public offering based on his friendship with Robertson. However, any investment could only be made in his name. On December 20, 2002, Formal wrote a check to appellant in the amount of ten thousand dollars to invest in HGL's stock. Formal wrote a second check for five thousand dollars to appellant for the same purpose in January 2003. Formal never received any HGL stock.

Robertson testified at trial that HGL never had plans to conduct an initial public offering; that he was never a friend of appellant; and that he never owned an airplane.

B. Formal Properties Trust, L.L.C.

In January 2003, Formal decided to obtain a real estate license. Appellant proposed that he and Formal incorporate into a limited liability company (L.L.C.) in order to channel their investments in real estate. The L.L.C. was to be called Formal Properties Trust, L.L.C., and was to be incorporated by appellant in Delaware. Appellant and Formal agreed to each contribute one hundred thousand dollars in order to form the company. Formal wrote two checks, each for fifty thousand dollars, to Michels and Associates, L.L.C., which appellant stated was an existing entity duly licensed in Delaware.

In June 2003, appellant told Formal that Formal Properties Trust, L.L.C., had been licensed in Delaware. However, appellant later admitted to the police that he never formed the entity. Formal made numerous requests about her investments and later, in response to appellant's evasive replies, asked for her money back. Finally, Formal demanded that an independent accountant review the L.L.C. documents. Appellant refused and shortly thereafter Formal filed a complaint with the police.

Appellant was indicted on four counts of obtaining money by false pretenses in violation of Code § 18.2-178. In preparation for trial, a Fairfax County police detective requested and received two certified documents from the Delaware Secretary of State. The Secretary of State certified that after completing a search of Delaware L.L.C. records, an entity named "Formal Properties Trust, L.L.C." did not exist in Delaware. She certified in a second document that "Michels and Associates, L.L.C." was not a company licensed to do business in Delaware. The trial judge denied appellant's motion in limine to have the two certificates excluded. At appellant's jury trial, the Commonwealth introduced both certificates over appellant's objection that the introduction of such documents violated his Sixth Amendment rights. Appellant was convicted of three of the four counts of obtaining money under false pretenses.

II. Analysis

The sole issue raised on appeal is whether the trial court erred by allowing into evidence the certificates from the Delaware Secretary of State certifying that the two entities were not limited liability companies licensed in Delaware. Appellant contends that these documents were testimonial in nature and, therefore, their admission in his criminal trial violated his Sixth Amendment rights because there was no showing by the Commonwealth that the Delaware Secretary of State was unavailable and that appellant had a prior ability to cross-examine her. We disagree, and find that the certificates were not testimonial and therefore were properly admitted by the trial judge.

Decisions regarding the admissibility of evidence "lie within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion." Breeden v. Commonwealth, 43 Va.App. 169, 184, 596 S.E.2d 563, 570 (2004) (citation omitted). Whether the certificates submitted by the Delaware Secretary of State are "testimonial hearsay," though, is a question of law, reviewed de novo by this Court. Conkling v. Commonwealth, 45 Va.App. 518, 520-21, 612 S.E.2d 235, 237 (2005); see United States v. Hendricks, 395 F.3d 173, 176 (3d Cir.2005).

The Sixth Amendment to the United States Constitution 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. This procedural guarantee applies to state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). The United States Supreme Court has emphasized that the primary objective of the Confrontation Clause is to preclude the admissibility of formal statements obtained through ex parte examination or interrogation initiated by government officials in anticipation of criminal litigation. Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364, 158 L.Ed.2d 177 (2004). The focus, therefore, is necessarily on witnesses against the accused. Id. Witnesses are those who "bear testimony," i.e., who make a solemn declaration "for the purpose of establishing or proving some fact." Id. The Court elaborates: "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. Thus, the Confrontation Clause is aimed at protecting criminal defendants from those people making accusations against them. Id. at 43, 124 S.Ct. at 1360 ("the right to confront one's accusers is a concept that dates back to Roman times"), and at 46 ("our constitution is, that the person shall see his accuser" (citation omitted)); see also Va. Const. art. 1, § 8 ("in criminal prosecutions a man hath a right ... to be confronted with the accusers and witnesses").

While Crawford did not define the scope of what evidence is "testimonial," the Court indicated that business records are not testimonial "by their nature." Crawford, 541 U.S. at 56, 124 S.Ct. at 1367 ("[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records"). Additionally, Chief Justice Rehnquist, in his concurring opinion, remarked "the Court's analysis of `testimony' excludes at least some hearsay exceptions, such as business records and official records. To hold otherwise would require numerous additional witnesses without any apparent gain in the truth-seeking process." Id. at 76, 124 S.Ct. at 1378 (Rehnquist, C.J., concurring) (citation omitted); see also Riner v. Commonwealth, 268 Va. 296, 322-23, 601 S.E.2d 555, 570 (2004) (business records are not testimonial hearsay within the meaning of Crawford).

While we have not yet considered the applicability of Crawford to records of this type, several of our sister courts who have considered similar issues have determined that documents establishing the existence or absence of some objective fact, rather than detailing the criminal wrongdoing of the defendant, are not "testimonial." In People v. Shreck, 107 P.3d 1048 (Colo.Ct.App.2004), the court considered the affidavits of court personnel verifying the authenticity of a criminal record and determined that such documents were not testimonial. Id. at 1060-61. The court explained:

Crawford applies to out-of-court statements by witnesses who would have testified at trial to past events or facts, but are attempting to testify ex parte through an affidavit in lieu of live testimony. In contrast, the affidavits at issue here were provided solely to verify the chain of custody and authenticity of the underlying documentary evidence.

Id. (citation omitted).

Similarly, the Supreme Judicial Court of Massachusetts considered the certified results of laboratory tests and found they were not testimonial. Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 705 (2005). That court reasoned, "[c]ertificates of chemical analysis are neither discretionary nor based on opinion; rather, they merely state the...