Turner v. Commonwealth

ERIC L. TURNER v. COMMONWEALTH OF VIRGINIA

Record No. 1867-19-1

COURT OF APPEALS OF VIRGINIA

DECEMBER 8, 2020

UNPUBLISHED

Present: Judges Beales, Huff and O'Brien

Argued by videoconference

MEMORANDUM OPINION^* BY JUDGE MARY GRACE O'BRIEN

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

Johnny E. Morrison, Judge

W. McMillan Powers, Assistant Public Defender, for appellant.

Maureen E. Mshar, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Eric L. Turner ("appellant") appeals a violation of probation conviction that resulted in two years of his previously suspended sentence being imposed. He contends that the court erred in admitting testimony from a probation officer, Richard Soriano, who neither supervised him nor authored his violation report. Specifically, appellant asserts three assignments of error:

1. The [court] erred in overruling [appellant's] objection to Soriano's testimony because that testimony was in violation of [appellant's] Sixth Amendment right to confront and cross[-]examine the probation officer who supervised him.

2. The [court] erred in failing to state for the record the grounds upon which the court relied for not allowing confrontation.

3. The [court] erred in overruling [appellant's] objection to Soriano's testimony on the ground that it was impermissible hearsay.

BACKGROUND

On August 10, 2015, appellant was convicted of attempted abduction in Portsmouth Circuit Court. The court sentenced him to five years of incarceration with two years suspended, conditioned on him successfully completing five years of supervised probation upon release. Appellant began probation July 3, 2018 and was supervised by the Chesapeake probation office.

Brian M. DeRosa, appellant's probation officer in Chesapeake, filed a major violation report on April 15, 2019. The report alleged that appellant had acquired an assault charge in Ohio and had violated conditions of his probation by leaving Virginia without permission and failing to maintain contact with the probation officer. According to DeRosa's report, appellant "was released from . . . custody [for the Ohio assault charge] on 2/04/19. [Appellant] has failed to contact [DeRosa,] and his whereabouts are not known."

The court held a probation violation hearing on July 29, 2019. At the beginning of the hearing, the Commonwealth advised the court that DeRosa no longer worked in the Chesapeake probation office and asked for a finding of "good cause to allow . . . the testimony of a substitute probation officer" from Chesapeake. The Commonwealth also requested a recess for either the substitute Chesapeake probation officer or a local Portsmouth probation officer, neither of whom had met appellant, "to speak to [appellant] and have him identify himself [in order to] prove that [identification] information appropriately on the record." Appellant objected. The court declined to recess but granted the Commonwealth a continuance "to do all of that."

The hearing resumed on November 13, 2019. Richard Soriano, a senior probation officer from Chesapeake, identified appellant based on a photo in the probation file and testified that although he never personally had contact with appellant, his office did. Appellant initially objected on hearsay grounds because Soriano "identified [appellant] from a picture based off of something that's attached in a program" and did not have "any personal knowledge" of him.

In response to the hearsay objection, the court questioned Soriano about DeRosa, appellant's original probation officer: "[I]sn't the person who supervised him no longer with the department? You have your records . . . the files and everything?" Soriano answered yes to both questions, and the court directed the prosecutor to "[g]o ahead."

Appellant again objected, stating, "Judge, based off those questions, I would have an objection under Cox v. Commonwealth, [65 Va. App. 506 (2015)]. . . . [T]he original probation officer is not here, [and appellant] does have a right to confront and cross-examine that probation officer[.]" The court responded, "I'm very familiar with the case, [c]ounsel. Overruled; go ahead. He's no longer employed with you at all?" Soriano answered, "Yes, sir. . . . I have no idea where he's at." The court then stated, "You may proceed."

Soriano identified a document appellant signed that listed the probation conditions. He testified that the conditions are explained to probationers when they sign the form. The document contained appellant's Department of Corrections identification number and the indictment number for his underlying conviction. Before admitting the document into evidence, the court noted that appellant's "objection is continuing."

Soriano testified from the violation report about appellant's specific violations of the probation conditions. He also stated that, according to notes in the probation file, appellant's last contact with the office was on January 7, 2019. Soriano testified that he had confirmed that the Ohio charge remained pending as of the date of the probation hearing. Specifically, in response to the Commonwealth's inquiry concerning "any information that [appellant] was convicted of [the Ohio] charge," Soriano stated that the assault charge was "still out. There is no disposition. It's still on."

Appellant, who did not cross-examine Soriano or offer any evidence on his own behalf, moved to dismiss the violation. He argued that Soriano never identified him in court and theCommonwealth did not prove that he was the person arrested in Ohio.¹ The court denied the motion and noted that the DOC and indictment numbers listed on the probation conditions were also on the violation report. The court found appellant in violation of his probation and imposed the previously-suspended two-year sentence.

ANALYSIS

1. Confrontation right at a probation violation hearing

Appellant contends the court erred by allowing Soriano to testify "because that testimony was in violation of [appellant's] Sixth Amendment right to confront and cross[-]examine the probation officer who supervised him." Rule 5A:12 requires dismissal of this assignment of error, however, because the court never ruled on any Sixth Amendment challenge to Soriano's testimony.

Rule 5A:12 provides that "[a]n assignment of error which does not address the rulings . . . on issues in the trial court . . . is not sufficient. If the assignments of error are insufficient, the petition for appeal shall be dismissed." Rule 5A:12(c)(1)(ii). Although Rule 5A:12 governs petitions for appeal, it still applies where a defect is not detected until the merits stage of an appeal. See Coleman v. Commonwealth, 60 Va. App. 618, 620-21 (2012). Additionally, unlike Rule 5A:18, Rule 5A:12(c) does not contain a "good cause" or "ends of justice" exception. Cf. Rule 5A:18.

When appellant objected to Soriano's testimony, he did so "under Cox v. Commonwealth, [65 Va. App. 506 (2015)]." Cox addresses a probationer's Fourteenth Amendment due process right to confront witnesses in a probation revocation proceeding, a context in which the Sixth Amendment does not apply. 65 Va. App. at 518. Relying on precedent from both the United States and Virginia Supreme Courts, we stated that "although the full Sixth Amendment right toconfrontation does not apply outside of a criminal trial, 'a more limited right of confrontation [is] included in the Due Process Clause of the Fourteenth Amendment, applicable to . . . probation revocation proceedings.'" Id. (quoting Henderson v. Commonwealth, 285 Va. 318, 325-26 (2013)); see Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).

In overruling appellant's objection, the court stated it was "very familiar" with Cox. Accordingly, the court's ruling was based on appellant's due process right under the Fourteenth Amendment, not his confrontation right under the Sixth Amendment. Because appellant's first assignment of error claiming a violation of the Sixth Amendment "does not address the . . . ruling[] . . . in the trial court[,]" it "shall be dismissed." Rule 5A:12(c)(1)(ii); see Coleman, 60 Va. App. at 620 (holding that failure to comply with Rule 5A:12 "deprives [the] Court of its active jurisdiction to consider the appeal" (quoting Davis v. Commonwealth, 282 Va. 339, 339 (2011))). Therefore, we dismiss appellant's first assignment of error.

2. Good cause for dispensing with the due process right

Appellant contends that the court erred "in failing to state for the record the grounds upon which [it] relied for not allowing confrontation" of DeRosa, the probation officer who supervised him. He argues the court was required to "specifically find good cause for not allowing the confrontation," and a review of the record "shows there was insufficient evidence to justify denial of confrontation."

"[W]hether 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." Henderson, 285 Va. at 329. Case law interpreting the limited right of confrontation under the Due Process Clause of the Fourteenth Amendment provides that testimonial hearsay is admissible in a revocation proceeding when the court "specifically finds good cause for not allowing confrontation." Id. at 326 (quoting Morrissey, 408 U.S. at 489). Courts use two tests for determining whether denial of theconfrontation right comports with constitutional due process: the "reliability test" and the "balancing test." Id. at 327-28. The reliability test permits the admission of testimonial hearsay that "possesses substantial guarantees of trustworthiness." Id. at 327. The balancing test weighs a defendant's interest in cross-examination against the prosecution's interest in denying confrontation. Id. at 327-28. A court may use either test to find good cause for not allowing confrontation. Id. at 328.

Under the reliability test, "substantial guarantees of trustworthiness" include "detailed police reports (as opposed to...