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Affidavit not testimonial, Court of Appeals says

An affidavit for a protective order was properly admitted in the trial of a man accused of killing his estranged wife because the statement was not testimonial, the en banc Virginia Court of Appeals ruled last week.

Seven of the court’s 11 members agreed with the opinion by Judge Robert J. Humphreys in Crawford v. Commonwealth, while four judges dissented on that point in two separate opinions while concurring in other aspects of Humphreys’ opinion.

In addition to the Confrontation Clause discussion, the opinions reached different conclusions on the right result/wrong reason doctrine that has been the subject of recent opinions from the Court of Appeals and the Supreme Court of Virginia.

Humphreys’ decision stemmed from the death of Sarah Crawford in November 2004. A jury convicted her husband, Anthony Dale Crawford, of capital murder, rape, abduction with intent to defile, use of a firearm in the commission of abduction and auto theft.

The body of Sarah Crawford, who lived in Prince William County, was found a Charlottesville motel room. She had been shot once in the chest, and her car was missing.

Police immediately suspected her husband in her death.

Charlottesville police learned that he was visiting relatives in Florida, and Jacksonville police found him in possession of his wife’s car and arrested him.

Crawford told police there that his wife had picked him up at his residence and that they had planned to go to Charlottesville for the weekend in an effort to reconcile.

He said he pulled out his .38-caliber revolver while the couple was in the car and planned to commit suicide. His wife grabbed the weapon, and the gun went off and the bullet hit his wife while they wrestling over the pistol, Crawford told police.

He then took her body to the motel, left it there and drove to Florida, he told police.

Prosecutors emphasized several inconsistencies in that account, including that Sarah Crawford was found naked in a sexually suggestive position and with seminal fluid from Crawford in her mouth, anus and vagina.

Moreover, Sarah Crawford had obtained a protective order against her husband about three weeks before she was killed after her husband had threatened her when she went with her parents to retrieve the last of her possessions from the apartment that she had formerly shared with him.

In the affidavit requesting the order, she alleged that Crawford had raped her, threatened her life and physically and verbally abused her.

Prosecutors contended that the affidavit was admissible because Crawford had forfeited his right to confrontation because he had caused his wife to be unable to testify.

Humphreys and the dissenters disagreed on whether prosecutors explicitly conceded that the affidavit was testimonial, although there was no dispute they made no argument at a suppression hearing that it was not.

Charlottesville Circuit Judge Edward L. Hogshire admitted the affidavit before a 2008 U.S. Supreme Court opinion held that the forfeiture by wrongdoing exception to the Confrontation Clause applied only when the conduct of the defendant was intended to keep the witness from testifying.

Hogshire did not make such a finding, and Humphreys held that the case would have had to have been remanded for analysis under that case if the affidavit was in fact testimonial.

But he ruled that it was not.

“Because the primary purpose of the affidavit was not to ‘prove past events potentially relevant to later criminal prosecution’ but rather to obtain a civil preliminary protective order, we hold that the statements contained there were non-testimonial,” Humphreys concluded.

It didn’t matter that the prosecution did not argue that the affidavit was not testimonial, he said.

Judges Larry G. Elder, in one concurrence and dissent, and Randolph A. Beales, in another, disagreed with Humphreys on both points.

The record showed a clear concession by the prosecution that the affidavit was testimonial, which barred any contention on appeal that it was not, Elder and Beales said.

The affidavit was testimonial in any event, the dissenters contended.

“[W]hen Mrs. Crawford executed the affidavit, she clearly was an accuser making a formal testimonial statement to the government officer who entered the order within the meaning of the Confrontation Clause, even if the primary purpose of the order was an attempt to protect her from future harm caused by appellant rather than to punish appellant for past behavior,” Elder wrote.

Beales concluded, however, that admission of the affidavit was harmless error and would have upheld the conviction of Crawford on all counts except rape.

Elder would have reversed all the convictions except the auto theft count.

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