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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Haley, Petty, Beales, Alston and Huff Argued at Richmond, Virginia

TERRANCE ROBERT HENDERSON, S/K/A TERRENCE HENDERSON v. Record No. 0688-10-4 OPINION BY JUDGE JAMES W. HALEY, JR. FEBRUARY 28, 2012

COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge Elizabeth Lauwaert Tuomey (Clardy and Tuomey, PLLC, on brief), for appellant. Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

I. INTRODUCTION Terrance Robert Henderson ("Henderson") appealed the result of his probation revocation hearing and assigned as error that the trial court "violated [his] right of confrontation by admitting . . . hearsay testimony." In an opinion published on June 21, 2011, a divided panel reversed the trial court. Henderson v. Commonwealth, 58 Va. App. 363, 710 S.E.2d 482 (2011). By order of July 26, 2011, this Court granted a petition for rehearing en banc and stayed the mandate of the panel decision pending the decision of the Court en banc. Henderson v. Commonwealth, 58 Va. App. 616, 712 S.E.2d 52 (2011).

We conclude the trial court properly admitted the challenged hearsay evidence in conformity with the limited confrontation right in the Fourteenth Amendment. Accordingly, we vacate the panel opinion and affirm the trial court. II. OVERVIEW In Morrissey v. Brewer, 408 U.S. 471, 480 (1972), the United States Supreme Court held that "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Nonetheless, that Court continued, a defendant in a parole revocation hearing is entitled to those due process rights contained in the Fourteenth Amendment to the United States Constitution, including "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." 1 Id. at 489. The Supreme Court applied the due process guarantees of Morrissey to probation revocation in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). Like parole, probation "arises after the end of the criminal prosecution, including imposition of sentence." Morrissey, 408 U.S. at 480. In Scarpelli, the Supreme Court pointedly stressed that: "While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence." 411 U.S. at 782 n. 5. Following these decisions, this Court has developed its own jurisprudence, specifically addressing the hearsay issue. In Davis v. Commonwealth, 12 Va. App. 81, 84, 402 S.E.2d 684, 686 (1991), we wrote: We first address Davis' contention that White's testimony was hearsay and improperly admitted at the probation revocation hearing. Both the United States Supreme Court and this Court have previously indicated probation revocation hearings are not a
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At oral argument, Henderson's counsel agreed that Morrissey remains good law. -2-

stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972); Atkins v. Commonwealth, 2 Va. App. 329, 331-32, 343 S.E.2d 385, 387 (1986). Specifically, the United States Supreme Court has stated that in revocation hearings "formal procedures and rules of evidence are not employed," Scarpelli, 411 U.S. at 789, and that the process of revocation hearings "should be flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489. Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court's discretion. (Emphasis added). After quoting Davis, we held in Hess v. Commonwealth, 17 Va. App. 738, 742, 441 S.E.2d 29, 32 (1994), that: "Consequently, a probation officer can, and frequently does, give hearsay evidence that includes a summary of a crime victim's testimony from another trial or even an extra-judicial account concerning a probationer's conduct." (Emphasis added). See also Dickens v. Commonwealth, 52 Va. App. 412, 663 S.E.2d 548 (2008). 2 Succinctly stated, the due process right of confrontation contained in the Fourteenth Amendment is applicable in probation revocation hearings, but the scope of that right is not one congruent with that afforded by the Sixth Amendment in criminal trials. 3

To review decisions from other jurisdictions, see Annotation, Admissibility of Hearsay Evidence in Probation Revocation Hearings, 11 A.L.R.4th 999 (1982 & Supp. 2011). We note that Henderson did not in the trial court, before the panel, or before the Court en banc, maintain any violation of his Sixth Amendment rights, or assert such a right was applicable to revocation hearings. At oral argument, Henderson's counsel agreed the Sixth Amendment does not apply. -33

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III. STANDARD OF REVIEW We thus address whether good cause existed for the admissibility of the challenged hearsay and whether that admission violated Henderson's Fourteenth Amendment due process right of confrontation. 4 Whether Henderson's "due process right of confrontation was violated is a question of law and is reviewed de novo." Dickens, 52 Va. App. at 417, 663 S.E.2d at 550 (citing Michels v. Commonwealth, 47 Va. App. 461, 465, 624 S.E.2d 675, 678 (2006)). That said, the core issue before us is whether there was good cause, consistent with Morrissey, for admission of the challenged testimony. The question of good cause, and thus the propriety of that admission, is reviewed upon an abuse of discretion standard. In Allen v. Commonwealth, 58 Va. App. 618, 622-23, 712 S.E.2d 748, 750 (2011), we wrote: The underlying determinations of good cause . . . involve a case-by-case exercise of the trial court's discretion. See Dickerson v. Commonwealth, 29 Va. App. 252, 254, 511 S.E.2d 434, 435-36 (1999); Adkins v. Commonwealth, 24 Va. App. 159, 162-63, 480 S.E.2d 777, 779 (1997). On appeal, we do not review these decisions de novo but rather under the deferential abuse-ofdiscretion standard. "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting in parenthetical Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, 743 (2005)). That standard of review is applicable to decisions of trial courts as to the admissibility of evidence. Avent v. Commonwealth, 279 Va. 175, 197, 688 S.E.2d 244, 256 (2010); Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997); Burton v. Commonwealth, 58

We note that Henderson has not preserved for appeal the issue of whether a trial court is required to enunciate on the record a finding of "good cause," or the reasoning leading to such a finding. See Morrissey, 408 U.S. at 489 (holding a defendant is entitled to confrontation "unless the hearing officer specifically finds good cause"). Accordingly, we do not address such an issue. -4-

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Va. App. 274, 280, 708 S.E.2d 444, 447 (2011); Lampkin v. Commonwealth, 57 Va. App. 726, 728, 706 S.E.2d 51, 52 (2011). And as we wrote in Joyce v. Commonwealth, 56 Va. App. 646, 663, 696 S.E.2d 237, 245 (2010): "Whether an adequate foundation has been laid for a hearsay exception involves an exercise of discretion by the trial court. See, e.g., Abney v. Commonwealth, 51 Va. App. 337, 347, 657 S.E.2d 796, 801 (2008)." IV. TESTS FOR DETERMINING HEARSAY ADMISSIBILITY Courts have developed two tests for evaluating whether good cause exists for the admission of hearsay evidence in probation revocation hearings--the reliability test and the balancing test. Under the reliability test, a court "allows the admission of hearsay evidence without a showing of cause for the declarant's absence if the evidence is sufficiently reliable." Curtis v. Chester, 626 F.3d 540, 545 (10th Cir. 2010). Reliable evidence under this test has also been described as evidence having "substantial guarantees of trustworthiness." Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984). "The [Supreme] Court established the good cause showing in Morrissey to limit the substantive use of unreliable evidence at revocation hearings. However, if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes." Id. Another court explained that substantial trustworthiness in hearsay evidence represents good cause for not producing live testimony. Reyes v. State, 868 N.E.2d 438, 441-42 (Ind. 2007). "In other words, if reliable hearsay is presented, the good cause requirement is satisfied." Commonwealth v. Negron, 808 N.E.2d 294, 300 (Mass. 2004). Courts have considered a number of factors in determining whether hearsay evidence is reliable. Courts are often concerned with whether other evidence corroborates the hearsay. United States v. Rondeau, 430 F.3d 44, 48 (1st Cir. 2005); United States v. Martin, 382 F.3d 840, 846 (8th Cir. 2004); Egerstaffer, 726 F.2d at 1235. Another indication of reliability is that the -5-

evidence is "quite detailed," providing "a fairly full account of the circumstances." Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003); see also United States v. Chin, 224 F.3d 121, 124 (2d Cir. 2000); Egerstaffer, 726 F.2d at 1235. Also relevant are admissions from the defendant corroborating the challenged hearsay, the failure of the defendant to present evidence, and internal corroboration within the hearsay. Crawford, 323 F.3d at 130. Statements possess less reliability when they come from an adversarial relationship between the person reporting the statement and the person who made it, United States v. Bell, 785 F.2d 640, 644 (8th Cir. 1986), when they represent "self-serving statements," Farrish v. Miss. State Parole Bd., 836 F.2d 969, 978 (5th Cir. 1988), or when they contain multiple levels of hearsay, United States v. Lloyd, 566 F.3d 341, 345 (3d Cir. 2009). Under the balancing test, a court weighs a defendant's "interest in confronting a particular witness against the government's good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement." United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995); see also United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006). Reliability constitutes "a principal factor" in this analysis. Lloyd, 566 F.3d at 345. "Whether a particular reason is sufficient cause to outweigh the right to confrontation will depend on the strength of the reason in relation to the significance of the releasee's right." United States v. Comito, 177 F.3d 1166, 1172 (9th Cir. 1999). Although occasionally a defendant's "interest in confrontation may be overwhelmed by the hearsay's reliability such that the Government need not show cause for a declarant's absence," typically a defendant "may have a legitimate interest in confrontation and cross-examination even when a declarant's out-of-court statement bears some indicia of reliability, and [trial] courts should normally address both factors." Lloyd, 566 F.3d at 345. "Courts have recognized that a declarant's refusal to testify or threats made against a declarant may be good cause for his absence and -6-

justify the admission of hearsay." Id. at 346. Where it is clear that a witness is unavailable, a court applying the balancing test should simply determine whether the evidence is reliable. United States v. Farmer, 567 F.3d 343, 347 (8th Cir. 2009). While it is arguable that Virginia has adopted the reliability test, see, e.g., Turner v. Commonwealth, 278 Va. 739, 742, 685 S.E.2d 665, 667 (2009); Dickens, 52 Va. App. at 423, 663 S.E.2d at 553, both cases dealt with documentary evidence and not, as here, with testimony. We decline to determine whether either test, or both tests, or other methods of analysis are mandatory in evaluating good cause for the admission of hearsay in probation revocation hearings. With that caveat, and because the parties here have only addressed the reliability test and the balancing test for determining good cause, the scope of our opinion will be likewise limited to the application of those tests to the instant facts. We hold that under either test, the challenged testimony was admissible. V. BACKGROUND In 2001, Henderson was convicted of a robbery that occurred in 2000 in violation of Code

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