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Protective order’s return of service not testimonial

Virginia Lawyers Weekly//June 10, 2021

Protective order’s return of service not testimonial

Virginia Lawyers Weekly//June 10, 2021

Where appellant attempted to buy firearms while under an unexpired preliminary protection order, the order’s return of service, which was used at trial to establish an element of the offense, was not “testimonial.”

Therefore, appellant’s Sixth Amendment confrontation right was not violated when the court admitted the return into evidence without allowing him to confront the deputy who executed the return.

Protection order

Chawlk obtained an extension of a preliminary protection order issued against appellant Logan, who was the boyfriend of Chawlk’s daughter. Logan did not attend the court hearing where the extension was granted. The day after the hearing a deputy filed a return of service stating he had personally served the extension order on Logan and Chawlk.

Two days after that, Logan attempted to buy two guns from a pawn shop. He filled out a state and federal form, attesting he was not under a protection order. The clerk forwarded the forms to the Virginia State Police, which declined to authorize the purchase.

“A VSP officer scheduled a meeting with Logan to discuss the attempted gun purchase. When the officer met with Logan, he showed him the preliminary protective order extension.

“Logan said that he knew that he was under a preliminary protective order, but that he thought the order only lasted two days and had expired by the time he attempted to purchase the firearms on July 27. When the trooper showed him the certification of service, Logan said that he ‘never knew [Chawlk] went back and had it extended.’”

Logan was charged with the felony of making a false statement on a criminal history form and the misdemeanor of attempting to buy a gun while under a protection order.

At a bench trial, the court acquitted Logan of the felony charge but convicted him of the misdemeanor. The court allowed the return of service into evidence over Logan’s objection that he had a Sixth Amendment right to confront the deputy who filed the document.”

The Court of Appeals affirmed in opinions from a three judge panel and the court sitting en banc.

Not testimonial

“The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right ‘to be confronted with the witnesses against him.’ … The Supreme Court of the United States has interpreted this right as applying to ‘witnesses’ who ‘bear testimony.’ … Thus, ‘[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ …

“In determining whether a statement is testimonial, courts ask ‘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.’ …

“Because the test is objective, we focus ‘not on the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individual’s statements and actions and circumstances in which the encounter occurred.’ …

“If the primary purpose of the statement was testimonial, courts then ask whether the statement would have been admissible in a criminal case at the time of the founding. … Such statements may be admitted without the opportunity for confrontation under the Sixth Amendment. …

“In this case, the statement at issue is the return of service on the extension of a preliminary protective order, which includes the serving deputy’s signature and the time and date of service. Logan argues that because the Commonwealth introduced this statement at trial to prove an element of the crime of violation of a protection order – that he had notice that he was subject to a protective order – the primary purpose of the statement is testimonial.

“However, the relevant inquiry is the primary purpose of a statement when it is made, not at the time of trial. … ‘[W]hen the return of service is completed, no crime related to the order served has yet occurred. … Nor is there any objective expectation that a crime – violation of the protection order – necessarily will occur.’ …

“Thus, a reasonable officer would not necessarily expect that the return of service would be used in a later criminal proceeding. The fact that a statement could later be used in a future prosecution does not thereby render it testimonial. …

“We conclude that the primary purpose of a return of service on a protective order is administrative. Service on Logan was necessary to notify him that he was subject to an extended preliminary protective order and that there would be a hearing to determine whether a permanent protective order would be granted.

“Service of process was also required to confer jurisdiction on the circuit court and to give effect to the extended preliminary protective order. … To effect service, the deputy was required to sign and date the return of service under Code § 8.01-296(2)(c). The return of service therefore performs a record-keeping function, documenting that the ministerial duty of service of process was executed.”


Logan v. Commonwealth, Record No. 201006 (Mims) May 27, 2021, CAV. J. Barry McCracken for appellant. Craig W. Stallard for appellee. VLW 021-6-036, 7 pp.

VLW 021-6-036

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