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Unidentified co-conspirator’s statement properly admitted

Appellant’s Sixth Amendment rights were not violated by the admission of an unidentified co-conspirator’s statements because the statements were not testimonial and were made in furtherance of the conspiracy.


Appellant and another individual broke down the door of Goode’s boarding house room despite Goode and Martin’s efforts to barricade it with their bodies. Once inside, appellant and the other individual ordered Goode and Martin to give them their money, and ordered them to lay face down on the floor.

The other individual threatened Goode and Martin’s lives while holding a concealed object. Appellant took money, wallets and other items Goode and Martin had placed on the floor. Appellant and the other individual quickly left the scene.

Police responded to the scene. Goode and Martin described appellant and the other individual. After speaking with the police, Martin found appellant’s wallet, including his picture identification on the sidewalk in front of the house.

Appellant told police he had lost his wallet earlier in the day and denied being involved in the robbery. At trial, appellant objected to Goode’s testimony about what the other individual said during the incident, claiming the testimony violated the Sixth Amendment’s Confrontation Clause.

The trial court admitted the testimony after the commonwealth argued that the statements were not testimonial and were not hearsay. The commonwealth argued the statements were admissible hearsay under the exception relating to statements by a co-conspirator in furtherance of the conspiracy.

Appellant was convicted of theft offenses and a firearm violation. He appeals.


“The Confrontation Clause guarantees that a criminal defendant will have the opportunity ‘to be confronted with the witnesses against him.’ … Within the meaning of the Confrontation Clause, ‘witnesses’ means ‘those who bear testimony,’ or ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ …

“Thus, the Confrontation Clause prohibits the introduction of ‘testimonial’ statements by a witness who does not testify at trial, unless the witness is ‘unavailable to testify, and the defendant … had a prior opportunity for cross-examination.’ …

“A statement qualifies as testimonial if the ‘primary purpose’ of the statement was to ‘creat[e] an out-of-court substitute for trial testimony.’ …

“Essentially, testimonial statements are those that ‘are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination. … [A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial.’ …

“To determine the ‘primary purpose’ of a statement, courts must consider ‘all of the relevant circumstances,’ and determine the objective purpose of the statement at the time it was made – not the statement’s possible availability for use at a later trial.’ …

“Where the primary purpose of a statement was not to create an out-of-court substitute for trial testimony, the Confrontation Clause is satisfied and ‘the admissibility of [that] statement is the concern of state and federal rules of evidence.’ … [I]n the end, the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the [statement] was to ‘creat[e] an out-of-court substitute for trial testimony.’ …

“Viewed objectively, the circumstances surrounding the challenged statements demonstrated that the other perpetrator was engaged in a course of criminal conduct. The other perpetrator ordered Goode and Martin to give up whatever money and valuables they had and threatened them if they did not comply.

“The other perpetrator also instructed appellant to collect the wallets and other valuables from the floor. The primary purpose of the statement was not to create an out-of-court substitute for trial testimony. Rather, the statements were made in furtherance of the crimes.

“Accordingly, we find that these statements are not testimonial, and the circuit court did not violate appellant’s constitutional right to confrontation in admitting them.”


Snead v. Commonwealth, Record No. 0027-20-3, May 4, 2021. CAV (Clements) from Lynchburg Circuit Court (Mosby). Matthew L. Pack for appellant, Mason D. Williams for appellee. VLW 021-7-056, 6 pp. Unpublished.

VLW 021-7-056

Virginia Lawyers Weekly