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Criminal – Confrontation Clause – Abused Wife – P.O. Affidavit

At defendant’s trial for the capital murder of his estranged wife, the trial court did not err in admitting the wife’s affidavit used to obtain a protective order against defendant; on rehearing en banc, the Court of Appeals says the statements in the affidavit were not testimonial and did not implicate defendant’s Sixth Amendment confrontation right.

In its earlier decision, the panel majority held that the trial court’s admission of the affidavit the victim offered to support her request for a protective order violated defendant’s rights under the Confrontation Clause, and reversed defendant’s convictions. On rehearing en banc, we disagree with defendant and the analysis of both the panel majority and dissent, and we affirm defendant’s convictions.

The Confrontation Clause only applies to testimonial hearsay. That is because only those statements that are “testimonial” in nature cause the declarant to be a “witness” within the meaning of the Confrontation Clause.

The statements at issue in this appeal are contained within an “Affidavit for Preliminary Protective Order.” Although the U.S. Supreme Court recently stated that affidavits fall within the core class of testimonial statements subject to the Confrontation Clause, we find it significant that the court did not go as far as to hold that all affidavits are per se testimonial.

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 the statements contained therein were nontestimonial under Davis v. Washington, 547 U.S. 813 (2006), and therefore did not implicate defendant’s Sixth Amendment right to confrontation. For that reason, the trial court’s decision to admit the affidavit was not error.

We hold the trial court incorrectly applied the forfeiture by wrongdoing doctrine because it did not consider whether defendant acted with the intent to prevent the victim from either testifying as a witness or seeking aid from the judicial process. However, because we hold that the statements contained in the affidavit were not testimonial under Davis, and thus did not implicate defendant’s Sixth Amendment right to confrontation, the trial court’s ultimate admission of the affidavit was not error.

Given counsel’s concession that, with the affidavit, the evidence is sufficient to sustain defendant’s convictions for abduction with intent to defile and rape, we hold that defendant has waived his argument with respect to this issue. We confirm all his convictions: capital murder, abduction with intent to defile, rape, grand larceny and firearm use.

Convictions affirmed.


Elder, J., joined by Felton, C.J.: I concur with the en banc majority’s statement that under the doctrine of forfeiture by wrongdoing, evidence which is testimonial may not be admitted without a showing that the defendant intended to prevent a witness from testifying. I also concur in the majority opinion to the extent it holds that the trial court, by not considering defendant’s intent, incorrectly applied the forfeiture by wrongdoing doctrine. However, this is where my agreement ends. I believe the procedural history of the case, which stands in marked contrast to Giles v. California, 128 S.Ct. 2678 (2008), renders consideration of the issue of intent on remand improper.

I continue to adhere to the view of the panel majority that whether the affidavit was testimonial for purposes of Confrontation Clause analysis is not before us on appeal. However, even if the issue of whether the affidavit was testimony is properly before us, I believe controlling U.S. Supreme Court authority compels the conclusion that it is in fact testimonial. Because I believe the victim’s affidavit was erroneously admitted and that its admission was harmless only with respect to defendant’s grand larceny conviction, I would reverse his additional convictions and remand for retrial. I respectfully dissent from the majority’s affirmance of all of defendant’s convictions except for grand larceny.

Beales, J., joined by Alston, J.: The facts presented in this appeal are tragic and disturbing, as the majority opinion aptly describes. However, disturbing as they are, we nevertheless are required to follow the binding precedent of the U.S. Supreme Court and the Supreme Court of Virginia, and therefore we must determine whether this case, despite the fact of a tragic killing, also presents legal error of a constitutional nature. I find I must reach a different conclusion than the majority opinion on several issues in the analysis of this case, although I also would ultimately conclude that most of defendant’s convictions should be affirmed.

I respectfully dissent from the majority’s decision to affirm defendant’s rape conviction. I concur in the majority’s overall conclusion that the remaining convictions should be affirmed.

Crawford v. Commonwealth (Humphreys, J.) No. 1194-07-2, Dec. 29, 2009; Charlottesville Cir.Ct. (Hogshire) Samantha F. Bolton for appellant; Leah A. Darron, Sr. AAG, for appellee. VLW 009-7-558, 61 pp.

VLW 009-7-558

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