James Hubert Porter v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker,* Judges Humphreys and Russell
Argued at Arlington, Virginia
UNPUBLISHED
JAMES HUBERT PORTER
MEMORANDUM OPINION** BY
v. Record No. 0427-18-4 CHIEF JUDGE MARLA GRAFF DECKER
JANUARY 15, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Ronald L. Napier, Judge1
D. Eric Wiseley (Struckmann, White & Wiseley, PC, on briefs), for
appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
James Hubert Porter appeals the revocation of his suspended sentence. He argues that the
circuit court erred by admitting certain verbal and written evidence. After reviewing the record, we
conclude that the out-of-court verbal statement was non-testimonial. In addition, any error in
admitting the written statement was harmless. For the reasons that follow, we affirm the decision of
the circuit court.
I. BACKGROUND
The appellant’s original sentence resulted from a 1997 conviction for rape. He was released
on probation on July 18, 2017. The following October, while on probation, the Department of
*
On January 1, 2019, Judge Decker succeeded Judge Huff as chief judge.
**
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
While the final order in this case was signed by Judge Napier, the Honorable Clifford L.
Athey, Jr., presided over the proceedings addressed in this opinion.
Corrections rented a motel room for the appellant because he was homeless. A term of the “sex
offender motel contract” required that he “abide by a curfew of 11:00 pm and have no visitors,
alcohol, or drugs in the room.”
Jacie Poe, the appellant’s probation officer, alleged that he violated the terms of his
probation by having another person stay in his room overnight. At the resulting revocation hearing,
Poe was the sole witness. She testified that a woman accompanied the appellant to his first
probation meeting with Poe. Poe explained that during the meeting she told the appellant that he
needed to “re-register” with the local police department. When he said that he did not know where
the police department was located, Poe volunteered to talk to “his friend.” The appellant replied
that “she was not from here.” Poe told him that she would give both of them directions. Poe
approached the woman, introduced herself, and “asked her where she was from.” When the
woman, Emily Morin, responded that she was from Fredericksburg, Poe asked her where she was
staying. Morin said that she had been “staying with” the appellant. The woman also told Poe that
she was homeless and did not have an address or a phone number.
The appellant objected to Poe’s testimony about Morin’s statement that she was staying with
the appellant on the grounds of “confrontation and hearsay.” The Commonwealth responded that
hearsay was admissible in a probation violation proceeding. The parties dispute the court’s ruling
on this objection, as discussed infra.
The Commonwealth entered into evidence a typed statement on Department of Corrections
letterhead. The statement was dated October 24, 2017, and provided: “I, Emily Morin, have been
staying at the Blue Ridge Motel . . . with [the appellant] since Sunday October 22, 2017.” The
document bore signatures in the names of Emily Morin and the probation officer. The appellant
objected to the admissibility of the writing “on [c]onstitutional and hearsay grounds.” Again, the
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Commonwealth responded that hearsay was admissible. The circuit court admitted the written
statement into evidence.
The circuit court found that the appellant violated “the terms and conditions of [his]
probation.” The sentencing guidelines recommended a sentence of two to three years, in part due to
the appellant’s previous three or more probation violations. However, the court revoked six months
of the previously suspended sentence and re-suspended any remaining sentences.
II. ANALYSIS
The appellant argues that the circuit court erred by admitting the evidence at his revocation
hearing indicating that Morin had stayed with him overnight in his motel room.
A. Evidence Before This Court on Appeal
The parties disagree on whether the circuit court admitted Poe’s testimony about Morin’s
verbal statement as substantive evidence of the truth of the matter asserted. The appellant suggests
that the court listened to Poe’s testimony about the circumstances surrounding Morin’s statement,
including what Morin told Poe, for the limited purpose of deciding whether to admit the written
statement. The Commonwealth counters that the testimony was admitted as substantive evidence
that the appellant violated a condition of his probation.
When Poe testified about her meeting with the appellant, the Commonwealth asked her to
read aloud the assertion in the “Major Violation Report” that “[t]he female had been staying with”
the appellant. The appellant objected to the statement as hearsay. The circuit court ruled that Poe
could testify to what she wrote in the probation report. The appellant again objected that the
statement was hearsay because it was information told to Poe by an out-of-court asserter. The court
sustained the objection but allowed Poe to testify to “the conclusion she reached” based on her
conversation with the woman.
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The appellant objected again based on the rule against hearsay and his right to confront
witnesses. The appellant explained that the Commonwealth’s case against him was based solely on
a statement made by a witness who was not present at the hearing. The circuit court observed that
the Commonwealth had not yet entered the written statement into evidence. The court also
reiterated that it had “sustained the objection at this point.” (Emphasis added).
The Commonwealth then questioned Poe about her meeting with the appellant.
Q . . . . You went out and talked to this woman in the lobby
after you discussed this, her appearance with Mr. Porter.
A I discussed her appearance with Mr. Porter with
Mr. Porter present.
Q Okay. And Mr. Porter told you what about her?
A That she was a friend that he had met on the street.
Q Okay. And what else did he tell you about her, if
anything?
A He didn’t know where she was living.
Q Okay. All right. So based on your conversation with
Mr. Porter what did you do then?
A One of the things I instructed Mr. Porter to do was to go
back down to the Front Royal Police Department to re-register. He
said he did not know where it was located. So I told him that I would
talk to his friend who came with him and he said that she was not
from here. I said okay, well I will give you guys both directions.
When I went out there I introduced myself to her and asked her
where she was from and she said she was from Fredericksburg.
[The appellant]: Objection.
[Prosecutor]: This is not going to the truth of the matter as yet,
Judge.
THE COURT: Yeah. Right. That is not . . .
[The prosecutor]: Go ahead.
A That she was . . .
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[The appellant]: Objection to the truth of the matter, Your Honor.
THE COURT: That one is overruled.
THE WITNESS: That she was from Fredericksburg and I asked
where she had been staying and she said that she had been staying
with Mr. Porter.
[The appellant]: Continuing objection.
Q And did you have her write out any kind of a statement or
anything?
A I did.
The appellant objected to the written statement. With the appellant’s objection continuing,
Poe again summarized their conversation: “She was homeless. She had [come] from
Fredericksburg with a friend and that friend had left her and that is how she ended up in the motel
room with [the appellant].” The circuit court ruled, “I am going to admit it into evidence,” noting
that in “a probation revocation proceeding . . . hearsay is admissible.”
The transcript, viewed in its entirety, reflects that the circuit court reserved judgment on the
admission of Poe’s testimony regarding where Morin was staying until it heard all the
circumstances surrounding the statements. See, e.g., Henderson v. Commonwealth, 285 Va. 318,
328-29 (2013) (noting that when considering the admission of hearsay testimony, the court may
“admit[] the evidence conditionally, subject to strik[e] . . . if it fails to meet the appropriate test”).
After the arguments by counsel and the witness’ explanation of the context and manner in which the
information came to her attention, the circuit court admitted the evidence regarding Poe’s
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conversation with Morin and Morin’s written statement collectively.2 It is not dispositive that the
court did not explicitly say that it was admitting both the verbal and written statements. Supporting
this interpretation of the record is the circuit court’s commentary, which did not differentiate
between Morin’s verbal statement to Poe and her written one. Consequently, we review the
admission of the verbal statement as well as the written statement.
B. Verbal Statement3
An appellate court reviews evidence admitted in a 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.” Henderson, 285 Va. at 329. Generally, the
proponent of evidence bears the burden of demonstrating its admissibility. Holloman v.
Commonwealth, 65 Va. App. 147, 168 (2015). A determination regarding the relevance and
admissibility of evidence in a revocation proceeding is ordinarily reviewed for an abuse of
discretion. Henderson, 285 Va. at 329. However, in reviewing the admission of an out-of-court
statement in a revocation proceeding for a constitutional due process challenge, we “accept[] the
historical facts” and “apply a de novo review” to determine whether the record supports admitting
the challenged evidence as a matter of law. Id.; see also Caison v. Commonwealth, 52 Va. App.
423, 434 (2008) (“Although we will not disturb on appeal decisions regarding the admissibility of
evidence absent an abuse of the trial court’s discretion, we review de novo whether a particular
2
To the extent that the appellant argues that the circuit court admitted the testimony
about the verbal statement for a limited purpose not including whether he allowed Morin to stay
overnight in his motel room, it was the appellant’s burden to obtain a clear ruling to that effect
from the circuit court. See Schwartz v. Commonwealth, 41 Va. App. 61, 71 (2003) (recognizing
that when a party fails to obtain a ruling on a matter presented to a trial court, there is “no ruling
[for the appellate court] to review on appeal”). Contrary to the appellant’s contention, the record
does not reflect that the testimony was admitted for a limited purpose.
3
We assume, without deciding, that the appellant’s brief encompasses a challenge to the
admission of the verbal statement. See generally Rule 5A:20 (listing the requirements for an
appellant’s opening brief).
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category of proffered evidence is ‘testimonial hearsay.’” (citation omitted) (quoting Jasper v.
Commonwealth, 49 Va. App. 749, 755 (2007))).
Although hearsay evidence is generally admissible in a revocation hearing, the Due Process
Clause of the Fourteenth Amendment guarantees a defendant in a revocation hearing some ability to
cross-examine adverse witnesses. See Henderson, 285 Va. at 326 (noting that “[h]earsay is
frequently admitted in revocation proceedings”); Turner v. Commonwealth, 278 Va. 739, 742
(2009) (holding that only “demonstrably reliable” hearsay is admissible in a probation revocation
hearing (quoting United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982))). In the context
of the instant proceeding and the challenged statement here, the admission of hearsay is subject to a
confrontation challenge only if it is testimonial in nature.4 See Henderson, 285 Va. at 326.
A hearsay statement is testimonial when it results from an “interrogation,” the “primary
purpose” of which “is to establish or prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
In determining whether a statement is testimonial, “we objectively evaluate the
circumstances in which the encounter occur[ed] and the statements and actions of the parties.”
Holloman, 65 Va. App. at 170 (alteration in original) (quoting Michigan v. Bryant, 562 U.S. 344,
359 (2011)). In doing so, the Court “look[s] to all of the relevant circumstances.” Id. (alteration in
original) (quoting Bryant, 562 U.S. at 369). Therefore, we review the entire context in which Morin
made the verbal statement to Probation Officer Poe.
Poe testified about the circumstances in which Morin told her that she was staying with the
appellant. The record establishes that the two spoke during the appellant’s first appointment with
4
Even if it is testimonial hearsay, it is admissible during a revocation proceeding when
“the hearing body specifically finds good cause for not allowing confrontation.” Johnson v.
Commonwealth, __ Va. __, __ (Oct. 18, 2018) (quoting Black v. Romano, 471 U.S. 606, 612
(1985)). However, when hearsay is not testimonial in the first place, the court does not need to
conduct a good cause analysis.
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Poe. The probation officer explained that she told the appellant that he needed to “re-register” with
the Front Royal Police Department. When the appellant said that he did not know where the police
department was located, Poe said that she “would talk to his friend.” The appellant replied that “she
was not from here.” Poe told him that she would give both of them directions. Poe approached
Morin, introduced herself, and “asked her where she was from.” When Morin responded
Fredericksburg, Poe asked her where she was staying. Morin responded that she had been “staying
with” the appellant.
The appellant argues that the evidence demonstrated that Poe obtained Morin’s statement
during an investigation of possible probation violations. He suggests that the nature of Poe’s
employment as a probation officer, her supervisory role over him, and his history of “technical”
violations necessarily signify that Poe was “looking for reasons to violate.” This argument,
however, neglects to frame the evidence in the light most favorable to the Commonwealth. See
Henderson, 285 Va. at 329.
Viewing the evidence in the light most favorable to the Commonwealth, Poe elicited
Morin’s verbal statement in the course of trying to ascertain Morin’s familiarity with the area in
order to give her directions, not in the course of investigating a possible probation violation by the
appellant. Poe testified that she sought to give “both” the appellant and Morin directions to the local
police department. She was attempting to provide directions to someone who did not live in the
area. In order to do so, Poe was trying to gauge Morin’s familiarity with the area. This was all in an
effort to get the appellant to the local police department so that he could register as he was required
to do. Consequently, the evidence of Morin’s verbal statement to Poe is non-testimonial hearsay
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and met the threshold for admissibility.5 The circuit court did not err by allowing into evidence
Poe’s testimony about Morin’s part of the conversation that revealed that she was actually staying
with the appellant.
C. Written Statement
Based on the record, we need not decide the more complex question of whether the trial
court erred in admitting Morin’s written statement because any presumed error committed as a
result of its admission is clearly harmless. See Commonwealth v. White, 293 Va. 411, 419-20
(2017). “[T]he General Assembly ‘deliberately engrafted’ the harmless-error doctrine into the
statutory law of the Commonwealth.” Id. at 420 (quoting Irvine v. Carr, 163 Va. 662, 669 (1934));
see Code § 8.01-678. Consequently, “it is ‘the duty of a reviewing court to consider the trial record
as a whole and to ignore errors that are harmless.’”6 White, 293 Va. at 420 (quoting United States
v. Hasting, 461 U.S. 499, 509 (1983)).
A constitutional error, such as one involving a violation of due process, is harmless only if
the appellate court is “able to declare a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967); see Clay v. Commonwealth, 262 Va. 253, 259
(2001). Harmless error review is not “simply a sufficiency of the evidence analysis.” Williams v.
Commonwealth, 32 Va. App. 395, 400 (2000) (en banc) (quoting Hooker v. Commonwealth, 14
5
As non-testimonial hearsay, we do not reach the issue of whether good cause supported
the admission of the verbal statement. See generally Kirby v. Commonwealth, 50 Va. App. 691,
698 n.2 (2007) (holding that an appellate court must “decide cases ‘on the best and narrowest
ground’” (quoting Miles v. Commonwealth, 274 Va. 1, 2 (2007) (Kinser, J., concurring))).
6
The due process right to confront a witness during a revocation hearing is not one of the
bedrock constitutional rights exempt from harmless error review. See United States v. Verduzco,
330 F.3d 1182, 1184 (9th Cir. 2003) (“A due process violation at a revocation proceeding is
subject to harmless error analysis.” (quoting United States v. Daniel, 209 F.3d 1091, 1094 (9th
Cir.), amended by 216 F.3d 1201 (9th Cir. 2000))). See generally Chapman v. California, 386
U.S. 18, 23 (1967) (“[T]here are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error.”).
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Va. App. 454, 458 (1992)). Therefore, an error does not affect the conviction only if the record
makes “clear beyond a reasonable doubt that a rational [factfinder] would have found the defendant
guilty absent the error.” White, 293 Va. at 422 (quoting Neder v. United States, 527 U.S. 1, 18
(1999)).
Factors relevant to whether an error was harmless include “the importance” of the
erroneously admitted evidence “in the prosecution’s case, whether [the evidence] was cumulative,
the presence or absence of evidence corroborating or contradicting the [disputed evidence] on
material points, the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case.” Dearing v. Commonwealth, 260 Va. 671, 673 (2000) (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
Here, the written statement was merely cumulative of Poe’s testimony, clearly credited by
the circuit court, that Morin told her that she had stayed with the appellant. See, e.g., Dalton v.
Commonwealth, 64 Va. App. 512, 520 (2015) (holding that the content of challenged evidence was
cumulative of other evidence admitted at trial). Accordingly, we hold that any error committed in
admitting the written statement was harmless beyond a reasonable doubt.
III. CONCLUSION
Viewing the record in the light most favorable to the Commonwealth, the verbal statement
was non-testimonial hearsay. Consequently, the circuit court did not err by admitting the verbal
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statement of Morin into evidence.7 In addition, the admission of the written statement, if error, was
harmless. Accordingly, we affirm the judgment of the circuit court.
Affirmed.
7
In light of our conclusion regarding the admissibility of the verbal statement, we do not
reach the appellant’s third assignment of error that the circuit court “erred in relying solely on
inadmissible hearsay evidence to support a violation of probation.” He cites Rushing v.
Commonwealth, 284 Va. 270, 278-79 (2012), in support of the proposition that this Court should
reverse and dismiss the case. We note, however, that Code § 19.2-324.1 abrogated the holding
in Rushing.
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Russell, J., concurring, in part, and dissenting, in part.
Although I agree with much of the majority opinion and join it in almost all respects, I
disagree on one fundamental issue—whether Morin’s verbal statement was testimonial. For the
reasons stated below I conclude that, like her subsequent written statement, Morin’s verbal
statement was testimonial, and thus, disagree with my colleagues’ conclusion that her verbal
statement was non-testimonial. Accordingly, I respectfully dissent.8
The majority correctly states the test for determining whether Morin’s verbal statement
was testimonial. Supra at 7. Her statement was testimonial if the “primary purpose” of Poe’s
questions to Morin was “to establish or prove past events potentially relevant to later” proceedings.
Davis v. Washington, 547 U.S. 813, 822 (2006). In making this determination, we conduct an
objective review of the circumstances leading to the statement, the statement itself, and the actions
of the parties. Holloman v. Commonwealth, 65 Va. App. 147, 170 (2015).
Here, the circumstances were that Poe, appellant’s probation officer, was meeting with
appellant for the first time since he had returned to Front Royal for supervision by her office.9
Although probation officers undoubtedly care about the rehabilitation and general well-being of
their charges, the overriding purpose of such a meeting is for the probation officer to ascertain
whether the probationer is complying with the conditions of probation. Thus, we review the
interactions at issue here with that understanding.
8
Despite my general agreement with my colleagues on the other issues raised by the
parties, my conclusion regarding Morin’s verbal statement requires me to disagree with them
regarding the appropriate disposition of the case. As explained more fully below, I conclude that
the case should be remanded for further proceedings.
9
After his release from incarceration, appellant initially was admitted to a residential
program located in Henrico County. Once he completed that program, he had no place to stay.
Pursuant to the relevant regulations, he was returned to Warren County, the location of his
underlying conviction, where he was to be supervised by the District 11 Probation and Parole
Office.
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Poe testified that, prior to having any interaction with Morin, she had been told that Morin
was not from the area. Poe testified that, knowing this, she decided to give directions to the police
station to both appellant and Morin. However, by her own account, Poe did not provide directions
when she approached Morin. Rather, after confirming that Morin was not from the area, Poe asked
her where she was staying, a topic that has little, if any, direct bearing on where the local police
station is located. However, given that Morin was from out of town and had accompanied appellant
to the meeting with his probation officer, it certainly had the potential to bear upon whether
appellant had violated one of the terms of his probation by allowing Morin to stay with him.
Correctly noting that we must view “the evidence in the light most favorable to the
Commonwealth,” the majority concludes that Poe must have asked where Morin was staying in
order “to ascertain Morin’s familiarity with the area in order to give her directions[.]” Supra at 8. It
reaches this conclusion despite the record containing no evidence that Poe ever provided anyone
directions of any kind. Additionally, Poe never made any statement suggesting that she asked
where Morin was staying to determine her familiarity with local landmarks that might have been
part of the never given directions. In short, the majority reaches its conclusion by drawing an
inference—that Poe must have asked where Morin was staying to aid in giving directions.
Although, as the prevailing party below, the Commonwealth is entitled to all reasonable
inferences that flow from the evidence, the inference must actually flow from the evidence. See
Bennett v. Commonwealth, 69 Va. App. 475, 491 (2018) (noting that the prevailing party is
entitled to “reasonable inferences fairly deducible” from the evidence (emphasis added)). Absent
some actual attempt by Poe to provide directions or any indication that she inquired about where
Morin was staying to assist in giving directions, the inference drawn by the majority requires
speculation not supported by the underlying circumstances and, in my view, is a bridge too far.
Given the function of a probation officer, the purpose of the meeting as discussed above, and Poe
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knowing that Morin was not from the area, concluding that the question was asked because its
answer might reveal a probation violation requires no such speculation. Accordingly, I respectfully
disagree with my colleagues that the inference they have drawn from this record is reasonable, and
therefore, I conclude that the statement was testimonial.
This conclusion, however, does not render the statement inadmissible. From this record, a
reasonable factfinder could conclude that the appellant was present when Morin made the statement
and adopted the statement as his own, rendering it admissible as an admission of appellant. See
Lynch v. Commonwealth, 272 Va. 204, 208-09 (2006) (discussing adoptive admissions); Va. R.
Evid. 2:803(0)(B).10 Alternatively, even if Morin’s statement is not an adoptive admission of
appellant, it may have been admissible in a probation revocation proceeding if the trial court found
good cause under the circumstances for dispensing with the limited right to confrontation applicable
in such proceedings. See, e.g., Johnson v. Commonwealth, ___ Va. ___, ___ (Oct. 18, 2018);
Henderson v. Commonwealth, 285 Va. 318, 326 (2013).
Although both avenues of admissibility are possible from this record, I believe the record
is insufficiently developed to allow us to conclude that the trial court made the necessary
findings to support either path to admission of Morin’s verbal statement. Accordingly, we
10
Although not all hearsay exceptions satisfy issues related to confrontation, see Crawford
v. Washington, 541 U.S. 36, 60 (2004) (rejecting the view that the Sixth Amendment right to
confrontation is satisfied if the statement falls within a well-recognized hearsay exception), an
admission of a party, whether actual or adoptive, does. As we previously have noted, “[a]n
adoptive admission avoids the confrontation problem because the words of the hearsay become
the words of the defendant.” Strohecker v. Commonwealth, 23 Va. App. 242, 254 (1996)
(quoting 29A Am. Jur. 2d Evidence § 802 (1994)). Strohecker involved the Sixth Amendment’s
confrontation clause as opposed to the confrontation right found in the Fourteenth Amendment’s
due process clause. Because the Fourteenth Amendment protection is a “more limited right of
confrontation” than that provided by the Sixth Amendment, Henderson v. Commonwealth, 285
Va. 318, 325 (2013), if the Sixth Amendment’s guarantee is not implicated by an adoptive
admission, logic dictates that the lesser Fourteenth Amendment right to confrontation is also not
implicated by an adoptive admission.
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cannot affirm on the possibility that the trial court would have made the necessary findings to
support admission of Morin’s verbal statement. See Blackman v. Commonwealth, 45 Va. App.
633, 642 (2005) (noting that “an appellee may argue for the first time on appeal any legal ground
in support of a judgment so long as it does not require new factual determinations” (emphasis
added)). Accordingly, I would remand the matter to the trial court for further proceedings.
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