Henderson v. Commonwealth ( 2013 )

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Lacy, S.JJ.
TERRANCE ROBERT HENDERSON
OPINION BY
v. Record No. 120512 SENIOR JUSTICE CHARLES S. RUSSELL
January 10, 2013
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal requires us to consider the limited right of a
criminal defendant to confront his accusers in a probation
revocation proceeding.
Facts and Proceedings
In 2001, Terrance Robert Henderson was convicted in the
Circuit Court of Arlington County of robbery and use of a
firearm. He was sentenced to 25 years' imprisonment with 18
years and four months suspended. He was released from prison on
probation in September 2009 and returned to Arlington to live
with his mother. Less than a month after his release, he was
arrested on a new robbery charge in Arlington. His probation
officer reported to the court that Henderson had violated the
terms of his probation, specifically the conditions that he
would obey all laws and report any arrests. He requested that
Henderson be brought before the court to show cause why his
probation should not be revoked. The probation officer
recommended that Henderson be required to serve the entire
unserved balance of his original sentence.
On February 26, 2010, the court conducted a revocation
hearing. The Commonwealth called as its sole witness Detective
Rosa Ortiz of the Arlington County Police Department. 1
Henderson's counsel objected that her testimony would be
inadmissible as hearsay and would also violate Henderson's right
to confront the witnesses against him. The court overruled the
objection.
The detective testified that she had been assigned to
investigate an attempted robbery that had occurred on October 2,
2009. The victim told her that he had received a cellular
telephone call from an unknown man who stated that he was
calling from the Arlington County Sheriff's Department. The
caller asked the victim to come to the courthouse to sign some
legal documents with reference to a family member. When the
victim failed to leave his apartment, he received a second call
from the same caller. The victim then left his apartment and
observed a man across the street who then crossed the street and
asked the victim for a cigarette. The man then tried to seize a
"man's purse" the victim was carrying, but the victim struggled
with him and fought him off. The victim returned to his
apartment and called the police.
1
Henderson called his mother as a witness for the defense.
The Commonwealth later made her its own witness for the purpose
of exceeding the scope of cross-examination, but her evidence
added nothing of substance to the Commonwealth's case.
2
Later, the detective testified, the victim's daughter came
to his apartment and found that the calls the victim had
received, ostensibly from the Sheriff's department, were
recorded on her father's cellular telephone as having come from
a telephone number of a person she knew as "Terrance."
Terrance's number was saved in her own cellular telephone. He
lived in the same neighborhood. The victim and his daughter
later asked Henderson about the calls and he told them that he
lends his telephone to a lot of people and didn't remember to
whom he had lent it on that day. The detective later questioned
Henderson about the use of his telephone and he told her the
same story. The detective testified that the victim later told
her that "he really didn't want to file charges because people
knew his daughter . . . they live in the same neighborhood and
they knew where he lived." Henderson was never prosecuted for
this crime.
The detective also testified to a different crime, a "home
invasion robbery" that occurred six days later. The victim of
that crime came to the police station, and she interviewed him
there. The victim told her that he heard a knock at his front
door on October 8, 2009. He looked out and saw three men
outside whom he knew. He didn't answer the knock, but he had
forgotten to lock the door, so they opened it and entered his
home. The first man to enter had a firearm in his waistband.
3
The second man was known to him as "Terrance." He and
"Terrance" had met while both were sitting in the lobby of the
probation office a short time earlier. The victim identified
Henderson's photograph from an array as the man he knew as
"Terrance," the second of the three who had entered his home on
October 8 and stolen some of his property.
Henderson and his two co-defendants in the "home invasion
robbery" were arrested on felony warrants. The detective
testified that she had interviewed Henderson in the jail about
both offenses. He denied participation in either crime. He
said that his name was connected with both cases because people
in the neighborhood didn't like him. With respect to the use of
his telephone in the attempted robbery of October 2, this time
he told the detective a different story, that "his phone [was]
stolen and, miraculously, it appeared on his porch two days
later."
Henderson admitted that he knew his two co-defendants and
that he had been riding with them in a Lincoln automobile.
Search warrants were obtained for Henderson's home and for the
Lincoln. No evidence was found in the home, but property stolen
in the home invasion robbery was found in the Lincoln.
The detective testified that she had monitored "about maybe
20" telephone calls made by Henderson and his two co-defendants
from the jail after their arrests. The gunman in the home
4
invasion robbery was identified as a man named Jones. He called
Anthony, the brother of Terrance Henderson, telling Anthony to
"take Danny's [the victim's] stuff out of your house." The
detective also testified that the monitored calls contained "a
lot of threats towards the victim." Jones called his girlfriend
to ask her to get Henderson's brother Anthony to "talk to" the
victim. When Anthony refused, Jones called one Darius Price,
who agreed to "talk to" the victim and persuade him to change
his mind about prosecuting the case. The calls later indicated
that Price and the girlfriend had complied with Jones'
instructions and that they had returned some of the victim's
stolen property to him.
Another monitored call was from Henderson to his mother.
The detective testified that Henderson told his mother that the
victim's mother was demanding a cash payment as the price of
"dropping the charges." Henderson's mother refused to make any
such payment. During this conversation, Henderson told his
mother that during the robbery, "Danny pulled a knife on Martin,
and Danny [the victim] should go to jail." Martin was
identified as the third robber. In a monitored call made by
Jones from the jail, Jones said: "[T]hey got me and they got
Terrance. . . . [H]ow did they get Martin?"
The detective testified that when she went to interview the
victim, he and his mother were "extremely scared of
5
retaliation." The mother said that "the day before the [c]ourt
[proceedings] she heard gunshots around the house, and that
really scared her." Ultimately, the victim refused to testify
and the Commonwealth took a nolle prosequi in the home invasion
robbery case.
Several times during the detective's testimony and again at
the close of the evidence, defense counsel renewed her objection
on hearsay and confrontation grounds, but the court overruled
the objections and found that Henderson had violated the terms
and conditions of his probation. The court stated no reasons
for its ruling. The court revoked the probation and entered an
order requiring Henderson to serve the remaining 18 years and
four months of his original 2001 sentence.
Henderson appealed to the Court of Appeals, which granted
him an appeal by a per curiam order. The case was heard by a
three-judge panel. By a published opinion, Henderson v.
Commonwealth, 58 Va. App. 363, 400, 710 S.E.2d 482, 500-01
(2011), the divided panel reversed the circuit court's judgment
and remanded the case for a new revocation hearing. The Court
granted the Commonwealth a rehearing en banc. The Court en
banc, with ten judges sitting, six judges joining, two judges
concurring in part, and two judges dissenting, vacated the panel
decision and affirmed the judgment of the circuit court. The en
banc Court held that there was no error in the admission of the
6
hearsay testimony and that Henderson had not preserved his
challenge to the failure of the trial court to state its reasons
for admitting the hearsay evidence. Henderson v. Commonwealth,
59 Va. App. 641, 648 n.4, 668, 722 S.E.2d 275, 279 n.4, 289
(2012) (en banc). We awarded Henderson an appeal.
Analysis
Henderson assigns two errors to the Court of Appeals'
judgment en banc: (1) that the judgment violated his
constitutional right to confront his accusers and (2) that the
judgment erroneously affirmed the circuit court's error in
admitting evidence in violation of the rule against hearsay.
When confrontation rights are asserted in a revocation
proceeding, for reasons hereinafter stated, we consider the rule
against hearsay to be entirely subsumed within the probationer's
limited due process right of confrontation. Therefore, we will
not consider Henderson's second assignment of error.
Henderson also argues on appeal that the circuit court had
a duty to state for the record the specific "good cause" it
found for denying his right to confront the witnesses against
him. The Court of Appeals held that claim procedurally
defaulted, not having been preserved for appeal. Henderson v.
Commonwealth, 59 Va. App. 641, 648 n.4, 722 S.E.2d 275, 279 n.4
(2012) (en banc). Henderson contends that the Court of Appeals
erred in so holding, but that ruling is not before us because it
7
was not made the subject of any assignment of error on appeal to
this Court. Rule 5:17(c)(1)(i).
Because parole revocation proceedings occur after a
criminal prosecution has ended in a conviction, a parolee is not
entitled to the "full panoply" of constitutional rights to which
he was entitled at trial. Morrissey v. Brewer 408 U.S. 471, 480
(1972). Following Morrissey, in Gagnon v. Scarpelli, 411 U.S.
778, 782 (1973), the Supreme Court of the United States held
that the same constitutional principles applied in probation
revocation hearings. Although the Sixth Amendment right of
confrontation applies only in criminal trials, a more limited
right of confrontation was included in the Due Process Clause of
the Fourteenth Amendment, applicable to parole and probation
revocation proceedings. The Supreme Court expressed the
Fourteenth Amendment's "minimum requirements of due process" as
providing:
(a) written notice of the claimed violations of
[probation]; (b) disclosure to the [probationer]
of evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause
for not allowing confrontation); (e) a "neutral
and detached" hearing body such as a traditional
parole board, members of which need not be
judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence
relied on and reasons for revoking [probation].
8
Morrissey, 408 U.S. at 489 (emphasis added). The parenthetical
exception within the confrontation right expressed in Morrissey
is central to this appeal.
Hearsay is frequently admitted in revocation proceedings.
See, e.g., id. (revocation proceedings allow consideration of
letters, affidavits, and other material that would not be
admissible in an adversary criminal trial); United States v.
Doswell, 670 F.3d 526, 530 (4th Cir. 2012) ("Supervised release
revocation hearings are informal proceedings in which the rules
of evidence, including those pertaining to hearsay, need not be
strictly applied").
Hearsay that is testimonial in nature, however, is subject
to the limited confrontation right provided by the Fourteenth
Amendment. Such hearsay may be admitted only when "the hearing
officer specifically finds good cause for not allowing
confrontation." Morrissey, 408 U.S. at 489. In the present
case, one may infer that the circuit court made such a finding
of good cause simply from the fact that Henderson's objections
on hearsay and confrontation grounds were overruled. The record
is silent, however, as to any ground upon which the court may
have relied in finding good cause. We think the Supreme Court's
holding in Morrissey implies that the trial court, when
dispensing with the due process right of confrontation, should
state for the record the specific grounds upon which the court
9
has relied for "not allowing confrontation" 2 in order to
facilitate effective appellate review of that decision. Because
the circuit court's failure to make such a statement has not
been preserved for appeal in the present case, and because we
have not previously articulated the requirement that such a
statement be made, we will not reverse for its omission but will
instead make an independent review of the record to ascertain
whether there was sufficient credible evidence before that court
to support a finding of "good cause for not allowing
confrontation."
Many federal and state courts have considered the question
of "good cause" in the context of Morrissey and Gagnon. Two
tests have emerged for determining whether the denial of the
right to confrontation in that context will comport with
constitutional due process. The first, the "reliability test,"
permits admission of testimonial hearsay in revocation
proceedings if it possesses substantial guarantees of
2
Accord, e.g., United States v. Rondeau, 430 F.3d 44, 47-48
(1st Cir. 2005) (hearsay was admissible at revocation hearing
only because the court determined explicitly why it was
reliable, and found on the record that the government had a good
reason not to produce declarants); Barnes v. Johnson, 184 F.3d
451, 454 (5th Cir. 1999) ("To fall within the good-cause
exception to the right of confrontation at a parole revocation
hearing[,] the hearing officer must make an explicit, specific
finding of good cause and state the reasons for that
finding. . . . The hearing officer must weigh the parolee's
interest in confronting the witness with the government's
interest in denying the parolee that right").
10
trustworthiness. See Crawford v. Jackson, 323 F.3d 123, 130
(D.C. Cir. 2003). Some guarantees include (1) detailed police
reports (as opposed to mere summaries of such reports by
probation officers), (2) affidavits or other hearsay given under
oath, (3) statements by the probationer that directly or
circumstantially corroborate the accusations, (4) corroboration
of accusers' hearsay by third parties or physical evidence, (5)
statements that fall within a well-established exception to the
hearsay rule, (6) evidence of substantial similarities between
past offenses and the new accusations that bolsters the
accuser's credibility, and (7) a probationer's failure to offer
contradictory evidence. Id.; United States v. Jones, 299 F.3d
103, 113 (2d Cir. 2002); United States v. Kelley, 446 F.3d 688,
692 (7th Cir. 2006); United States v. Lloyd, 566 F.3d 341, 345
(3d Cir. 2009); Curtis v. Chester, 626 F.3d 540, 547 (10th Cir.
2010). Evidence which alone would not be reliable would be bare
out-of-court statements reflecting an adversarial relationship
with the accused or statements contained within multiple layers
of hearsay. Lloyd, 566 F.3d at 345.
The second test, the "balancing test," requires the court
to weigh the interests of the defendant in cross-examining his
accusers against the interests of the prosecution in denying
confrontation. Id. at 344-45.
11
The two tests are overlapping and are not mutually
exclusive. For instance, when applying the balancing test, the
reliability of the evidence may, in some circumstances, be so
strong as to overwhelm the defendant's interests in
confrontation. Id. at 345. The Attorney General, on brief,
concedes that resort to the balancing test may be appropriate
where the reliability of the hearsay is less compelling, but it
has been held that, in some circumstances, the balancing test is
clearly inappropriate:
[i]n the balancing process, the defendant's interest in
confronting the declarant is entitled to little, if any,
weight where the declarant's absence is the result of
intimidation by the defendant: Where a defendant has
procured the declarant's unavailability 'by chicanery,
. . . by threats, . . . or by actual violence or murder,'
the defendant is deemed to have 'waived his sixth amendment
rights and, a fortiori, his hearsay objection' to the
admission of the declarant's statements.
United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006)
(quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d
Cir. 1982)).
In those circumstances, the defendant has forfeited any
right to confrontation the Constitution may have otherwise
afforded him, leaving him no legitimate interests to be balanced
against those of the Commonwealth. We conclude that the court
12
may apply either test, as may be most appropriate in the
circumstances. 3
When a trial court is asked to admit testimonial hearsay
evidence in a probation revocation proceeding, the court must
make three decisions. First, will the admission of the hearsay
testimony violate the probationer’s Fourteenth Amendment limited
confrontation rights? To answer that question, the court must
determine whether the proposed evidence meets the appropriate
test as discussed above. That determination can only be made if
the content of the proposed evidence is fully disclosed to the
court. Such a disclosure may be made by a proffer, by
stipulation, or by admitting the evidence conditionally, subject
to striking it if it fails to meet the appropriate test.
Second, if the trial court decides that such testimony can be
admitted, does the testimony, along with other evidence support
the conclusion that a condition of the probation was violated?
And finally, in light of the violation, should the probation be
revoked in whole or in part? 4
3
The Court of Appeals, en banc, determined that the hearsay
testimony of Detective Ortiz satisfied both tests for good
cause. Henderson, 59 Va. App. at 656-59, 661, 663, 665, 722
S.E.2d at 283-87.
4
The second decision, relating to the weight of the
evidence, and the third, relating to the appropriate penalty
when a violation has been shown, are necessary in all probation
revocation proceedings, whether testimonial hearsay is offered
or not.
13
On appellate review, ordinarily, "the determination of the
admissibility of relevant evidence is within the sound
discretion of the trial court subject to the test of abuse of
that discretion." Beck v. Commonwealth, 253 Va. 373, 384-85,
484 S.E.2d 898, 905 (1997). However, whether a defendant's due
process rights are violated by the admission of evidence is a
question of law, to which we apply a de novo standard of review.
Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d
679, 684 (2010). See United States v. Neeley, 420 Fed. Appx.
228, 231 (4th Cir. 2011) (court applies de novo review in due
process challenges to revocation of supervised release); United
States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (same).
Therefore, the application of the abuse of discretion standard
of review is inappropriate when considering this due process
issue. Rather, while accepting the historical facts, we apply a
de novo review to determine whether the admission of the
testimonial hearsay meets either the reliability or balancing
test as a matter of law.
In reviewing the second question, we apply the well-
established standards applicable to review of the sufficiency of
the evidence, e.g., Crawford v. Commonwealth, 281 Va. 84, 111-
12, 704 S.E.2d 123-24 (2011). We apply the abuse of discretion
standard to the third question, Code § 19.2-306(A); Slayton v.
Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 483 (1946). In
14
this case, only the first question is before us and accordingly,
we will apply a de novo standard of review.
For reasons analogous to those governing appellate review
of records of criminal trials, we will view the evidence
received at the revocation hearing in the light most favorable
to the Commonwealth, as the prevailing party, including all
reasonable and legitimate inferences that may properly be drawn
from it. See, e.g., Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The evidence was largely
circumstantial, but circumstantial evidence is entitled to the
same weight as direct testimony. Riner v. Commonwealth, 268 Va.
296, 303, 601 S.E.2d 555, 558 (2004). "While no single piece of
evidence may be sufficient, the combined force of many
concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a
conclusion." Commonwealth v. Hudson, 265 Va. 505, 514, 578
S.E.2d 781, 786 (2003) (citation and internal quotation marks
omitted).
Applying these principles, we turn to the record of the
revocation hearing in the present case. The Commonwealth
pointed out to the court that Henderson, who was personally
present, was covered "from neck to toe" with tattoos depicting
the symbols and insignia of the "Gangsta Disciples," a well-
known criminal street gang. Photographs of his upper body were
15
admitted in evidence showing these tattoos and showing him with
a group of other men making the gang's hand signal, called
"throwing up a pitchfork." 5 Some of the photographs were taken
from Henderson's cellular telephone. That evidence was
circumstantial corroboration of Detective Ortiz' hearsay
testimony that the victims and other witnesses were deterred
from testifying by intimidation exerted upon them by Henderson
through his allies.
Awareness of the dangerous proclivities of criminal street
gangs, see, e.g., Rushing v. Commonwealth, 284 Va. 270, 726
S.E.2d 333 (2012); Hamilton v. Commonwealth, 279 Va. 94, 688
S.E.2d 168 (2010), has become a lamentable feature of urban
life. This evidence demonstrated that the witnesses were
intimidated by Henderson or his gang to the degree that they had
all refused to testify. All were residents of the same
neighborhood and likely aware that Henderson had just been
released from eight years' imprisonment for a crime of violence.
They were likely motivated by the belief that Henderson had
almost immediately resumed his former pattern of criminal
behavior, now assisted by his fellow gang members.
5
Certain characteristics of membership in or association
with the Gangsta Disciples street gang, including a description
of the gang's hand signal, were discussed in Rushing v.
Commonwealth, 284 Va. 270, 275, 726 S.E.2d 333, 336 (2012).
16
Detective Ortiz' hearsay testimony was circumstantially
corroborated by evidence emanating from sources other than the
statements the victims had made to her. The record also
contained Henderson's shifting and highly improbable accounts to
explain the use of his telephone to entice the first victim to
leave his home. Additionally, the monitored telephone calls
made by Henderson and his co-defendants from the jail were
implied admissions of their participation in the home-invasion
robbery as well as Henderson's actual description, to his
mother, of an occurrence at the robbery scene. Further, the
record shows the recovery, pursuant to a search warrant, of
property stolen in the robbery, from a car in which Henderson
admitted that he had been riding with his co-defendants. On the
issue of intimidation of the Commonwealth's witnesses, crucial
to this appeal, most telling were the direct threats against the
victims made by the men in jail in their monitored telephone
calls and their efforts, ultimately successful, to recruit
agents outside the jail to persuade the victims not to testify.
Most of the hearsay statements contained in the monitored
telephone calls were not offered for the truth of the
utterances, but rather to prove the state of the declarant's
mind as it bore on consciousness of guilt, efforts to conceal
participation in crime and desire to avoid detection. These
matters fall outside the rule against hearsay, Va. R. Evid.
17
2:802, or come within its well-recognized exceptions, e.g., Va.
R. Evid. 2:803, and thus bear circumstantial guarantees of
trustworthiness satisfying the "reliability test." See, e.g.,
Jackson, 323 F.3d at 130. The evidence of witness intimidation
was alone sufficient to satisfy the "balancing test." See
Williams, 443 F.3d at 45. We therefore agree with the Court of
Appeals' holding, en banc, that the evidence at the revocation
hearing, taken as a whole, was sufficient as a matter of law to
satisfy both the reliability and the balancing tests, thereby
comporting with the constitutional requirements for admitting
the testimonial hearsay evidence and denying Henderson his
Fourteenth Amendment confrontation rights for "good cause."
Conclusion
Accordingly, we will affirm the judgment of the Court of
Appeals sustaining the trial court’s admission of the
testimonial hearsay evidence in this probation revocation
proceeding.
Affirmed.
SENIOR JUSTICE LACY, with whom CHIEF JUSTICE KINSER and JUSTICE
GOODWYN join, concurring.
I concur with the majority's conclusion that a trial court
may apply either a reliability test or a balancing test when
considering whether hearsay evidence may be admitted in a
probation revocation proceeding. I also agree with the
18
majority's conclusion that the hearsay evidence at issue in this
case was admissible. However, I do not agree with the
majority's application of the tests to the circumstances of this
case. Therefore, I would affirm the en banc judgment of the
Court of Appeals that the trial court's admission of the hearsay
evidence was not improper for the following reasons.
The factual basis for the probation officer's request that
Henderson's probation be revoked and his suspended sentence be
imposed was based on two events involving Henderson - the
attempted robbery of an individual for which a complaint was
never filed and Henderson's involvement in and arrest for a home
invasion robbery which was ultimately nolle prossed, apparently
because the victim was unwilling to testify.
At the revocation proceeding, the Commonwealth's evidence
consisted of the testimony of Detective Rosa Ortiz, who
investigated the two incidents. This appeal involves
Henderson's objections to that part of Ortiz' testimony relating
statements made to Ortiz by the victims of each crime and their
relatives.
The majority and all parties agree that a defendant is
entitled to due process protection in a probation revocation
proceeding, but that the level of protection afforded does not
embrace the "full panoply" of protection available in a criminal
19
proceeding. Morrissey v. Brewer, 408 U.S. 471, 480 (1972). As
relevant here, the due process right to confront and cross-
examine witnesses may be limited if the judicial officer
conducting the proceeding "specifically finds good cause for not
allowing confrontation." 1 Id. at 489.
Because we conclude that good cause to deny a defendant his
due process right of confrontation may be based on compliance
with either the reliability test or balancing test, satisfaction
of either test is sufficient to sustain the admissibility of the
hearsay testimony.
The majority’s conclusion that the hearsay testimony may be
admitted in this case because it meets the balancing test is
based on the theory that the victims' failure to testify at the
revocation hearing was the result of intimidation by Henderson
"and his allies," "his fellow gang members." Case law from
other jurisdictions has established that when the failure of a
witness to testify in a revocation hearing is the result of
intimidation by the defendant, the defendant’s confrontation
1
As the majority notes, even though the trial court did not
make the prerequisite finding of good cause required by
Morrissey when limiting the right of confrontation, the en banc
Court of Appeals did not address that issue, holding that
Henderson did not preserve the issue for appeal. Henderson, 59
Va. App. at 648 n.4, 722 S.E.2d at 279 n.4.
20
right is "of little weight" and the balancing test weighs in
favor of the Commonwealth, allowing admission of the hearsay
evidence of such witness' statements. United States v.
Williams, 443 F.3d 35, 45 (2d Cir. 2006)(quoting United States
v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982)).
Ortiz' testimony regarding intimidation related to the
first victim's reticence to prosecute the attempted robbery and
the second victim's refusal to testify in the prosecution of the
home invasion robbery. None of this testimony addressed the
victims' reticence to testify in the parole revocation hearing.
More importantly, none of the statements referring to the
victims' reticence to testify described acts taken by Henderson
to keep the victims from testifying. Similarly, Ortiz'
testimony regarding the monitored telephone calls, not
challenged by Henderson as hearsay, did not involve any action
or statements by Henderson.
The majority’s intimidation theory also rests on evidence
that Henderson wore tattoos, a factor not mentioned by the
Commonwealth until well after the trial court's decision to
admit the hearsay evidence, and on the connection of such
tattoos to certain gangs, another fact not in evidence.
In my opinion, when applying the balancing test in
probation revocation proceedings, acts of intimidation by the
21
defendant or at his or her direction should be firmly
established, not merely implied or imputed to the defendant
through generalized assumptions. Reliance on assumptions
associated with Henderson's tattoos and various assumptions
about the neighborhood and what the victim knew and thought
about Henderson's return from prison and reengagement in
criminal behavior do not, as a matter of law, outweigh
Henderson's due process right of confrontation. To base a
determination that there was intimidation on these assumptions
and inferences sets the bar extremely low, allowing trial judges
in future probation revocation cases to allow hearsay testimony
on the thinnest of reeds.
Admissibility of the hearsay evidence, however, was not
error in my opinion because the evidence met the reliability
test. The undisputed fact that the police obtained an arrest
warrant for Henderson for the home invasion robbery provides
corroboration of that victim's statements that the robbery
occurred and that Terrance Henderson was identified as a suspect
in the robbery. While the arrest warrant was not a "detailed
police investigative report" it falls within that category of
items that support guarantees of the trustworthy nature of the
hearsay testimony regarding that victim's statements. See
Crawford v. Jackson, 323 F.3d 123, 130-31 (D.C. Cir. 2003).
22
Furthermore, the defendant himself told Ortiz that he was in the
car where the victim's stolen property was found and that he
knew the other persons charged with the alleged robbery.
Finally, Ortiz testified that during the monitored telephone
calls Henderson stated that during the home invasion robbery,
"Danny pulled a knife on Martin, and Danny . . . should go to
jail." 2 Henderson's own statement describing elements occurring
during the confrontation further corroborated the victim's
hearsay statement that the crime occurred and that Henderson was
involved.
No independent police investigative report or arrest
warrant corroborated the hearsay testimony of the attempted
robbery; however, the description of the attempted robbery the
victim relayed to Ortiz was very detailed and specific. More
importantly, the victim's testimony centered around the
telephone calls luring the victim outside on the pretext of
going to the courthouse. Henderson admitted to the victim and
2
I note that the majority asserts that the testimony
regarding the monitored phone calls is admissible under the
recognized hearsay exception of offering the testimony not for
the purpose of the truth but to show state of mind. That
exception to the hearsay rule was not argued by the Commonwealth
at trial or on appeal. In any event, Henderson is not
challenging the admission of this testimony. He challenges only
the hearsay testimony of the robbery victims and that testimony
does not fall under an exception to the hearsay rule.
23
to Ortiz that he owned the cellular telephone from which the
calls to the victim originated. Henderson's conflicting
explanations that he had loaned the cellular telephone to
another unknown person, and alternatively that the telephone had
been stolen, did not diminish the fact that he admitted that he
owned the telephone that was used to lure the victim outside
where the attempted robbery occurred.
Accordingly, I conclude that the victims' hearsay testimony
met the requisite guarantees of trustworthiness such that its
admission did not violate Henderson's due process right of
confrontation.
24