Ruiz v. Commonwealth, Record No. 1915-07-4 (Va. App. 12/23/2008)

• Decision Date: 23 December 2008
• Docket Number: Record No. 1915-07-4.
• Court: Virginia Court of Appeals
• Parties: CECILIA ALEXIS RUIZ v. COMMONWEALTH OF VIRGINIA

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Unpublished Opinion

CECILIA ALEXIS RUIZ v. COMMONWEALTH OF VIRGINIA

Record No. 1915-07-4.

Court of Appeals of Virginia, Alexandria.

December 23, 2008.

Appeal from the Circuit Court of Fairfax County, J. Howe Brown, Judge Designate.

Mark J. Yeager (Anna K. Livingston; The Law Offices of Yeager & Thelin, on brief), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Haley and Beales.

MEMORANDUM OPINION^*

JUDGE JAMES W. HALEY, JR.

Cecilia Alexis Ruiz ("Ruiz") appeals her conviction for forging a public record in violation of Code § 18.2-168. This case presents eight questions for resolution. Ruiz preserved four of these questions for appeal by making a timely objection to the disputed rulings in the trial court. On brief, she concedes that trial counsel did not preserve for appeal the other four questions presented. However, she argues that these questions are appropriate for review under the "ends of justice" exception to the contemporaneous objection requirement of Supreme Court Rule 5A:18. For the following reasons, we affirm her conviction.

FACTS

Officer Douglas Middlebrooks ("Middlebrooks") of the Fairfax County Police Department stopped a car driven by Munir Dellawar ("Dellawar") on August 19, 2004. As a result of his investigation, Middlebrooks charged Dellawar with drunk driving in violation of Code § 18.2-266 and with unreasonable refusal to take a breath test in violation of Code § 18.2-268.2. Middlebrooks was present in the Fairfax General District Court on November 12, 2004 when the court resolved Dellawar's charges. Middlebrooks later testified at Ruiz's trial that Dellawar entered a guilty plea to the drunk driving charge and, in exchange, the Commonwealth ordered a nolle prosequi of the refusal charge.

Early the next year, Middlebrooks came to the assistance of another police officer after that officer had stopped a car, the driver of which Middlebrooks recognized as Dellawar. During the time Dellawar was stopped on the side of the road, he had two conversations with Middlebrooks. During the first conversation, they discussed Dellawar's previous arrest for DUI and the court's issuance of a restricted driver's license. During the second conversation, just after Middlebrooks had briefly left the side of the car to speak to the other officer, Dellawar told Middlebrooks he was never found guilty of DUI. Because this statement was inconsistent with Middlebrooks' memory of what had happened in court, Middlebrooks checked Dellawar's license information using the computer in his police vehicle. The computer system showed no conviction for DUI. After letting Dellawar drive away, Middlebrooks told his supervisor about the incident and the police began an investigation.

As a result of that investigation, Dellawar testified at Ruiz's trial. He testified that, between the time of his initial arrest (August 19, 2004) and the time of his court appearance (November 12 of the same year), he spoke to a friend of his, Cesar Monteverde ("Monteverde"). Monteverde told him that he knew someone in the courthouse who might be able to "take care of" the DUI. Monteverde and Dellawar drove to a house in Fairfax County where Dellawar met Ruiz, who worked for the Commonwealth's Attorney as a management analyst.

Dellawar testified that Ruiz advised him to plead guilty to the DUI. After his guilty plea, Dellawar was told to wait until his attorney left the courthouse and ask for a de novo appeal to the circuit court. When the clerk asked him to choose a trial date in circuit court, Dellawar was to choose the furthest date available. Ruiz told Dellawar that the clerk's office would keep his file for at least ten days. Ruiz said that she had access to all of the folders and the computer system. She told Dellawar that she would remove his file and scramble his name in the computer system. Dellawar testified that, when he appeared in court on November 12, he followed Ruiz's instructions by entering a guilty plea to the DUI and filing an appeal to the circuit court at the clerk's office.

Dellawar also testified that he met with Ruiz a few weeks later in a parking lot off of Little River Turnpike in Fairfax County. At this meeting she gave him two documents, which were introduced into evidence at Ruiz's trial. Each document is styled "Traffic Hearing/Disposition Update." Each document had Dellawar's case number on it. The first document, admitted into evidence as Commonwealth's Exhibit 2, listed the charge as "HOV violation," and spelled the defendant's name "War Shah." The other document, admitted as Commonwealth's Exhibit 3, listed the charge as "DWI 1st" and had listed Dellawar as the defendant. Nothing on Commonwealth's Exhibit 3 indicates that Dellawar was convicted. Also on Commonwealth's Exhibit 3 is a date stamp with an attestation clause, purporting to authenticate the document as a record of the Fairfax County General District Court. The stamp is dated 2/23/05, and the attestation clause is signed Cheryl Cinfo. Dellawar testified that Ruiz told him that the date-stamped document was a certified copy from the court and that he could show it to anyone who inquired about his DUI case. Dellawar testified that he gave Ruiz one thousand dollars in cash, though there was no specific agreement regarding compensation.

Cheryl Cinfo, who was the manager of the criminal division of the Fairfax County General District Court clerk's office in 2005, testified that she did not sign the document that Dellawar testified Ruiz had given him. Ms. Cinfo also denied that she had authorized anyone else to sign her name.

Sergeant Fulton, of the Fairfax County Police Department, testified that, after speaking with Dellawar, he attempted to retrieve the files corresponding to Dellawar's DUI and refusal cases from the Fairfax County General District Court. Fulton testified that the clerks were unable to locate the files for him.

Dellawar testified that he met with Ruiz one other time after his second traffic encounter with Middlebrooks made him anxious that the police might discover what had happened. After a few phone conversations, Dellawar and Ruiz met at a restaurant called Mango Mike's in Alexandria.

Q: Did you express your concern to her?

A: I did. When she finally did come to that Mango Mike's place we had a conversation in the corner. She told me — she said, "Look, don't worry. I know everything that's going on with this case."

She said, "I see every email that goes to the District Attorney." She even mentioned that there's no way that it would go back to me or to her because they were — the investigators that were investigating she said were actually thinking that it was a different girl in the Clerk's office because the name that was signed on that one document is the person who they thought had done all this for me.

Q: Did she say how she knew what the investigators were thinking?

A: She said — yeah, because she said she worked directly in the District Attorney's office and that she could hear conversations when, like, for example, the officer who was investigating this — I forgot his name — Officer Fulton — when they had conversations in the District Attorney's she said she could literally overhear them on when they were thinking whether they should arrest me or not, and, you know, different bits and pieces of information that she was telling me about.

Q: Did she tell you whether or not she had ever done this successfully before?

A: She did. She said this is — there is no way that it could come back. She said this is a very — she said "I pretty much mixed up the records so much that there is no way it could come back."

A jury convicted Ruiz of forging a public document. This appeal followed.

1) Did the Trial Court Err in Admitting Disputed Telephone Records into Evidence?

The Commonwealth offered into evidence two documents to show that Dellawar had made telephone calls to Ruiz on November 12, 2004, the day he entered a guilty plea to the DUI charge and immediately appealed. Commonwealth's Exhibit 4 is a letter to Sergeant Fulton of the Fairfax police from an analyst at the T-Mobile Company, which was sent in response to a subpoena duces tecum. According to the letter, a search of T-Mobile's records indicates that Ruiz established a T-Mobile account in August 2004. The letter also lists Ruiz's phone number, and indicates that her number was disconnected in March of 2005. Commonwealth's Exhibit 5 is an AT&T Wireless telephone record listing all of the calls made to and from Dellawar's mobile telephone between 4:14 p.m. on November 9, 2004 to 11:09 a.m. on November 13. The list indicates that Dellawar's phone made two calls to Ruiz's T-Mobile telephone on November 12, 2004, the first at 8:53 a.m., and another at 10:50 a.m.

The parties entered into the following pretrial stipulation regarding these two exhibits:

[PROSECUTOR]: One other housekeeping matter. I just wanted to put one record, there may be evidence on behalf of the Commonwealth that consists of telephone records. One record is that showing what the Defendant's phone number was during that period of time. And second, record from a witness's telephone showing that he made two calls to her. Counsel and I have stipulated there's no need to authenticate those records for the purposes of trial —

[DEFENSE COUNSEL]: That's correct.

[PROSECUTOR]: — while preserving any other objections that defense might have.

At trial, Ruiz objected that the Commonwealth had not laid a proper foundation for the admission of the records. Citing Penny v. Commonwealth, 6 Va. App. 494, 370 S.E.2d 314 (1988), she suggested that, for the foundation to be adequate, the Commonwealth would need to produce a witness who could testify to the reliability of the computer system that generated the disputed records. The trial court asked both parties about the nature of their...