Anderson v. Commonwealth

KEITH JEROME ANDERSON v. COMMONWEALTH OF VIRGINIA

Record No. 2305-14-2

COURT OF APPEALS OF VIRGINIA

APRIL 12, 2016

UNPUBLISHED

Present: Judges Beales, Decker and AtLee

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Richard D. Taylor, Jr., Judge

John B. Mann (John B. Mann, P.C., on briefs), for appellant.

Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

The Circuit Court for the City of Richmond ("the circuit court") found Keith Jerome Anderson ("Anderson") in violation of the terms of a previously suspended sentence for robbery, and revoked the balance of Anderson's suspended time. Anderson alleges that the circuit court erred when it: (1) admitted hearsay testimony from law enforcement witnesses in violation of Anderson's Sixth Amendment right to confrontation; (2) revoked Anderson's suspended sentence as a result of behavior for which Anderson was never convicted; and (3) found the evidence sufficient to justify revocation. For the reasons that follow, we affirm.

I. BACKGROUND

In 2011, pursuant to a plea agreement, the circuit court convicted Anderson of robbery, and sentenced him to ten years in prison, with all ten years suspended. On September 13, 2012,Anderson was charged with robbery and related crimes allegedly¹ committed against Gregory Pierce, as well as separate charges of robbery and related crimes allegedly committed against Sherrod Blackwell. All of these new crimes were alleged to have been committed on the same date, within minutes and blocks of each other. When Pierce failed to appear at a suppression hearing, the charges in which he was the victim were dismissed at the Commonwealth's request, by order of nolle prosequi.² (The Commonwealth has never reinstituted such charges.) The charges in which Blackwell was the victim were tried over the course of seven months, in three separate jury trials. In November of 2013, the first jury convicted Anderson of robbery, but a mistrial was declared after one of the jurors said that he had been "pressured." In February of 2014, a second jury acquitted Anderson of robbery, abduction, and use of a firearm in the commission of a felony. Finally, in June of 2014, a third jury acquitted Anderson of possession of a firearm by a convicted felon. In summary, after three trials, Anderson was acquitted of all charges in which Blackwell was the victim.

Between the second and third trials, the Commonwealth moved for a rule to show cause why the circuit court should not revoke the suspension of the sentence in Anderson's 2011 robbery conviction. In support of its motion, the Commonwealth alleged that Anderson had been charged "with Robbery and Use of [a] Firearm in the commission of a Felony. Indictments forAttempted Murder,[³] Abduction, Robbery, the Use of a Firearm in the commission of those felonies, and Firearm/Felon followed."

At the revocation hearing on October 31, 2014, two Richmond City Police Department Detectives, Jorge Thondique and Eric Sandlin, testified for the Commonwealth. Their testimony concerned the incident involving Pierce as well as the one involving Blackwell.

Detective Thondique, testifying about his investigation of the alleged robbery of Pierce, stated that on September 13, 2012, he responded to a report of a robbery. The alleged victim, Pierce, recounted the following to Detective Thondique: as he got off the bus, a man asked for a cigarette and a match. The man then displayed a gun, forced Pierce to the ground, took $19 from him, and fled. Pierce described the suspect as wearing a white or gray shirt, white shorts, and white sneakers. He also stated that the suspect wore his hair in cornrows, had a goatee, and sported gold "fronts."⁴ While Detective Thondique was speaking to Pierce, another detective had taken Anderson into custody nearby. Ultimately, Detective Thondique conducted a photographic lineup using several photographs, one of which was of Anderson. After viewing the photographic lineup, Pierce identified Anderson as his robber, quantifying his certainty at 80%. Anderson was charged with the robbery of Pierce.

Detective Sandlin, testifying about his investigation of the alleged robbery of Blackwell, stated that on September 13, 2012, he responded to a report of a robbery. (This robbery allegedly occurred "may be [sic] 300, 400 yards" from the robbery investigated by Detective Thondique.) The alleged victim, Blackwell, recounted the following to Detective Sandlin: as hewas walking his dog, someone approached him and asked about the dog. Suddenly, the man stood up, pointed a gun at Blackwell, and demanded money. Blackwell, who had no cash, gave the man a Wal-Mart credit card instead. The man forced Blackwell to the ground and patted him down. The man demanded that Blackwell "call the card [sic] to find out how much money was on the car[d]." The man then took Blackwell approximately 100 feet to a black Volvo vehicle and unlocked the trunk to that vehicle. At that point, Blackwell pointed his own gun at his would-be robber. Blackwell pulled the trigger, but the gun misfired. He ejected the unspent round, and as the suspect ran away, both Blackwell and the man fired their guns at each other. Blackwell described the robber as a black male, with a goatee, cornrows, a white shirt, white pants, and white shoes.

At the scene, Detective Sandlin located a black Volvo vehicle, and underneath such vehicle, he found an unspent round of ammunition. He also found a spent shell casing, of a different caliber, approximately 15 feet from the Volvo, in the direction the suspect had fled, according to Blackwell. By this time, Anderson had been taken into custody nearby. Detective Sandlin drove Blackwell to Anderson's location for purposes of conducting a "showup."⁵ Blackwell viewed Anderson from relatively nearby, in bright lighting, and identified Anderson as the man who had robbed him.

When he was arrested, Anderson was in possession of a set of gold fronts and "a lot of money." He was wearing a white polo shirt with gold stripes, white shorts, and white shoes, and had his hair in cornrows. Anderson had neither a gun nor a Wal-Mart credit card when arrested. (The credit card was found the next day, near the area where the suspect had been running.Police were unable to identify any fingerprints on the card.) He also had a car key, and Detective Sandlin used that key to unlock the black Volvo previously described by Blackwell (beneath which an unspent shell casing had been located).

During the course of the revocation proceeding, Anderson raised various objections. At an earlier hearing, prior to the revocation hearing itself, Anderson's attorney had stated: "[T]his is basically just a res judicata issue and collateral estoppel, because charges itself is [sic] not sufficient . . . . It only says he received new charges. Then when he is subsequently found not guilty of those charges, I think that should have resolved this show cause."

During Detective Thondique's testimony, as he began to recount the words spoken to him by Pierce, Anderson's attorney stated: "Objection, Judge. Hearsay." After the judge overruled this objection, Anderson's attorney continued: "Judge, I would submit, Your Honor, again, that not only is it hearsay, but of [sic] the best evidence rule, we don't have the person here to testify about what happened." Similarly, during Detective Sandlin's testimony, as he began to recount the words spoken to him by Blackwell, Anderson's attorney stated: "I object to hearsay. They haven't shown Mr. Blackwell is unavailable to come here and testify." The judge overruled this objection as well.

Finally, after the Commonwealth rested, Anderson moved to strike, arguing:

Mr. Pierce never testified. We have no way to test his testimony as to the truth and voracity [sic] of what he says happen [sic]. As far as Mr. Blackwell, Your Honor, I submit that his testimony at trial and [sic] the jury recognized it had enough holes that you could fit a dump truck through . . . . The jury didn't believe him.

He argued that it was wrong for the judge "to basically re-litigate these two situations and say it's - [']I have the discretion under 19.2-306['] when you have no other conduct, other than what happened in those two cases . . . ." The judge denied the motion to strike. Anderson recalledDetective Sandlin briefly, then rested. Anderson also moved to admit transcripts of the prior criminal trials involving the facts upon which his revocation was based.⁶

In his closing argument, Anderson stated: "[T]he evidence in this case relies on two individuals, Mr. Blackwell and Mr. Pierce and what they may have told the detectives. The detectives have nothing to corroborate the statements of Mr. Pierce that he was robbed." The circuit court found Anderson in violation of the previously suspended sentence, and revoked eight years and nine months, the balance of his time.⁷

II. ANALYSIS

A. Sixth Amendment, Fourteenth Amendment, and Hearsay

This assignment of error reads: "The Circuit Court Erred In Admitting Hearsay Testimony From Detectives Thorndique [sic] And Sandlin Which Was A Violation Of Appellant's Right To Confrontation Under The Sixth Amendment." A trial court's decision to admit or exclude evidence, including hearsay, is reviewed for abuse of discretion. See, e.g., Swain v. Commonwealth, 28 Va. App. 555, 558-59, 507 S.E.2d 116, 117-18 (1998). By contrast, we review constitutional claims de novo. Cox v. Commonwealth, 65 Va. App. 506, 513, 779 S.E.2d 199, 202 (2015); see also Blunt v. Commonwealth, 62 Va. App. 1, 8, 741 S.E.2d 56, 59 (2013) (claimed violation of the Fourteenth Amendment resulting from admission of evidence triggers de novo review); Hicks v. Commonwealth, 60 Va. App. 237, 250, 725 S.E.2d 748, 755 (2012) (claimed violation of the Confrontation Clause of the Sixth Amendment triggers de novo review). These standards of...