Three directions: Court splits on confrontation challenge

The judges of the Virginia Court of Appeals went in three different directions in analyzing when a document – a signed proof of service – can take the place of live testimony to prove violation of a criminal statute.

At issue is the confrontation clause – the constitutional guarantee that allows a defendant to face and confront witnesses accusing him of committing a crime.

Seven members of the court agreed it was proper to admit into evidence a signed return of service on a protective order to prove the defendant knowingly attempted to buy a firearm while subject to a protective order. Two of those seven quarreled with the standard applied by the four-judge plurality.

But three other judges said there were substantial questions about delivery of the protective order and the defendant should have been allowed to question the deputy sheriff who signed the return of service.

The en banc court’s 24-page package of opinions followed rehearing of the appeal from the Norfolk case of Logan v. Commonwealth (VLW 020-7-161).

Attempted gun purchase

A Hampton woman took out a preliminary protective order against Quartrez Logan in 2017. A judge later agreed to extend the order for six months in a hearing where Logan was not present. The next day, a deputy sheriff filed a return of service indicating that he had personally served both Logan and the woman who sought the order.

A week after the hearing, Logan tried to buy two guns at a Norfolk pawn shop. He signed two forms – federal and state – indicating that he was not subject to a protective order. He later told a state trooper he was never served with the order and never knew the protective order had been extended.

At a bench trial before Norfolk Circuit Judge David W. Lannetti, Assistant Public Defender J. Barry McCracken objected that the deputy’s return of service was hearsay and argued that Logan had the right to confront the deputy.

The commonwealth argued the protective order was an official court order admissible to show that Logan had lied about the existence of the order and being served with it. Lannetti agreed, admitting the protective order as a “valid court record.” The judge convicted Logan of the misdemeanor attempt-to-purchase charge, but found Logan not guilty of a felony charge of making a false statement on a criminal history form. He sentenced Logan to six months with three suspended.

4-judge plurality

On appeal, a divided panel of the Court of Appeals affirmed the conviction. The full court granted a petition for rehearing to resolve whether a return of service on a protective order is subject to the confrontation clause of the Sixth Amendment of the U.S. Constitution.

The plurality adopted a test articulated by the U.S. Supreme Court that the question is whether, in light of all objective circumstances, the primary purpose of the statement was to create an out-of-court substitute for trial testimony.

The court looked to language in the statute on preliminary protective orders, Va. Code § 19.2-152.9, concluding the “explicit policy” of the order is protection of the health and safety of the petitioner and family.

“Given that non-prosecutorial purpose and the civil nature of the proceedings, we conclude that the statement in the return of service, indicating that Logan was personally served, was a recordation of the completion of a ministerial duty on the part of the deputy sheriff,” wrote Judge Robert J. Humphreys for the plurality.

Creation and filing of the return served “purely administrative and statutory purposes,” the court said. The return was not “functionally identical to live, in-court testimony against him,” the plurality concluded.

“Simply because the return of service might be relevant in a future prosecution does not make it testimonial,” Humphreys wrote.

Dissent

Judge Glen A. Huff, who dissented from the panel decision, also wrote the dissent on rehearing, joined by Judges Wesley G. Russell Jr. and Richard Y. AtLee Jr.

The service requirement and the service itself are “clearly substantive,” Huff said. Unlike other court orders, a preliminary protective order is effective only “if and when it is personally served by a law enforcement officer on the respondent,” Huff wrote.

“Thus, when a statement is made for the purpose of recording an event and the recorded event reasonably could be understood by the declarant to be relevant to a later criminal prosecution, the statement is testimonial. This remains true, even if the record was not made explicitly for the purpose of use in a criminal trial. The record of service of the preliminary protective order satisfies both of these conditions,” the dissenters said.

Evidence in the Logan case demonstrates the “crucial need for confrontation,” Huff said. The petitioner who sought the protective order testified she was never served, even though the return said she was. Moreover, on the face of the return, the deputy purported to have served both the petitioner and Logan at the same time and only one minute before he filed the return with the court.

Concurrence

But neither the plurality nor the dissent correctly applied the U.S. Supreme Court’s two-pronged test, contended Judge Clifford L. Athey Jr. Judge Randolph A. Beales joined his concurrence.

The second prong, in Athey’s view, is whether the statement still requires the protections the founders contemplated when drafting the confrontation clause. The plurality need not have reached that test, Athey and Beales reasoned.

Nonetheless, Athey and Beales agreed with the plurality that the primary purpose of the return of service is “merely administrative and ministerial.” The court affirmed Logan’s conviction.

Practical considerations

Unmentioned in the printed opinions is the potential impact of a ruling in favor of Logan. But several judges expressed concern at oral argument May 27 that giving Logan the right to confront the serving deputy might bring similar challenges in other criminal and traffic actions.

“How would that apply to a situation where there was a prosecution for, say, a third-offense petty larceny or a second-offense DUI?” Humphreys asked McCracken in the conference call session.

McCracken argued Logan’s case could be decided on narrow facts, since it involved a one-on-one service of a court document, not a proceeding in open court. And, he said in an interview July 29, “This is an ex parte order that doesn’t become effective until it’s served.”

The commonwealth was represented on appeal by Assistant Attorney General Craig W. Stallard, who contended criminal prosecution was not the primary purpose of the requirement of a return of service.

“I think clearly the issue before the court … is whether or not it was reasonably foreseeable that this would be evidence used in the criminal trial that it was being admitted in. And I don’t think so. I don’t think there’s any evidence that’s true,” Stallard said at oral argument.

Next level of review

The plurality was right to embrace the “primary purpose” test, but overlooked the facts that fit that test, according to Richmond criminal attorney Steven D. Benjamin, who was not involved in the case.

“I think it’s clear, of course, the primary if not the only purpose of signing a return was to create an out-of-court substitute for trial testimony. I think that’s obvious,” Benjamin said.

And Benjamin said concern about the inconvenience of future proceedings should not play a role in the constitutional analysis.

“The effect of enforcing fundamental constitutional rights should never be a judicial concern,” Benjamin said. “That is an improper consideration.”

The suspicious circumstances of the recorded times and dates of service are not dispositive of the issue, he said, but they illustrate the purpose of the confrontation clause. “It certainly adds interest because it appears there was a genuine issue of material fact,” Benjamin said.

“I would have loved to have heard the deputy sheriff’s explanation,” McCracken said with a laugh. McCracken said he expected to file a petition for appeal with the state Supreme Court.