Henderson v. Commonwealth

PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Russell and Lacy, S.JJ.

TERRANCE ROBERT HENDERSON
OPINION BY
v. Record No. 120512 SENIOR JUSTICE CHARLES S. RUSSELL
January 10, 2013
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal requires us to consider the limited right of a

criminal defendant to confront his accusers in a probation

revocation proceeding.

Facts and Proceedings

In 2001, Terrance Robert Henderson was convicted in the

Circuit Court of Arlington County of robbery and use of a

firearm. He was sentenced to 25 years' imprisonment with 18

years and four months suspended. He was released from prison on

probation in September 2009 and returned to Arlington to live

with his mother. Less than a month after his release, he was

arrested on a new robbery charge in Arlington. His probation

officer reported to the court that Henderson had violated the

terms of his probation, specifically the conditions that he

would obey all laws and report any arrests. He requested that

Henderson be brought before the court to show cause why his

probation should not be revoked. The probation officer

recommended that Henderson be required to serve the entire

unserved balance of his original sentence.
 On February 26, 2010, the court conducted a revocation

hearing. The Commonwealth called as its sole witness Detective

Rosa Ortiz of the Arlington County Police Department. 1

Henderson's counsel objected that her testimony would be

inadmissible as hearsay and would also violate Henderson's right

to confront the witnesses against him. The court overruled the

objection.

The detective testified that she had been assigned to

investigate an attempted robbery that had occurred on October 2,

2009. The victim told her that he had received a cellular

telephone call from an unknown man who stated that he was

calling from the Arlington County Sheriff's Department. The

caller asked the victim to come to the courthouse to sign some

legal documents with reference to a family member. When the

victim failed to leave his apartment, he received a second call

from the same caller. The victim then left his apartment and

observed a man across the street who then crossed the street and

asked the victim for a cigarette. The man then tried to seize a

"man's purse" the victim was carrying, but the victim struggled

with him and fought him off. The victim returned to his

apartment and called the police.

1
Henderson called his mother as a witness for the defense.
The Commonwealth later made her its own witness for the purpose
of exceeding the scope of cross-examination, but her evidence
added nothing of substance to the Commonwealth's case.

2
 Later, the detective testified, the victim's daughter came

to his apartment and found that the calls the victim had

received, ostensibly from the Sheriff's department, were

recorded on her father's cellular telephone as having come from

a telephone number of a person she knew as "Terrance."

Terrance's number was saved in her own cellular telephone. He

lived in the same neighborhood. The victim and his daughter

later asked Henderson about the calls and he told them that he

lends his telephone to a lot of people and didn't remember to

whom he had lent it on that day. The detective later questioned

Henderson about the use of his telephone and he told her the

same story. The detective testified that the victim later told

her that "he really didn't want to file charges because people

knew his daughter . . . they live in the same neighborhood and

they knew where he lived." Henderson was never prosecuted for

this crime.

The detective also testified to a different crime, a "home

invasion robbery" that occurred six days later. The victim of

that crime came to the police station, and she interviewed him

there. The victim told her that he heard a knock at his front

door on October 8, 2009. He looked out and saw three men

outside whom he knew. He didn't answer the knock, but he had

forgotten to lock the door, so they opened it and entered his

home. The first man to enter had a firearm in his waistband.

3
The second man was known to him as "Terrance." He and

"Terrance" had met while both were sitting in the lobby of the

probation office a short time earlier. The victim identified

Henderson's photograph from an array as the man he knew as

"Terrance," the second of the three who had entered his home on

October 8 and stolen some of his property.

Henderson and his two co-defendants in the "home invasion

robbery" were arrested on felony warrants. The detective

testified that she had interviewed Henderson in the jail about

both offenses. He denied participation in either crime. He

said that his name was connected with both cases because people

in the neighborhood didn't like him. With respect to the use of

his telephone in the attempted robbery of October 2, this time

he told the detective a different story, that "his phone [was]

stolen and, miraculously, it appeared on his porch two days

later."

Henderson admitted that he knew his two co-defendants and

that he had been riding with them in a Lincoln automobile.

Search warrants were obtained for Henderson's home and for the

Lincoln. No evidence was found in the home, but property stolen

in the home invasion robbery was found in the Lincoln.

The detective testified that she had monitored "about maybe

20" telephone calls made by Henderson and his two co-defendants

from the jail after their arrests. The gunman in the home

4
invasion robbery was identified as a man named Jones. He called

Anthony, the brother of Terrance Henderson, telling Anthony to

"take Danny's [the victim's] stuff out of your house." The

detective also testified that the monitored calls contained "a

lot of threats towards the victim." Jones called his girlfriend

to ask her to get Henderson's brother Anthony to "talk to" the

victim. When Anthony refused, Jones called one Darius Price,

who agreed to "talk to" the victim and persuade him to change

his mind about prosecuting the case. The calls later indicated

that Price and the girlfriend had complied with Jones'

instructions and that they had returned some of the victim's

stolen property to him.

Another monitored call was from Henderson to his mother.

The detective testified that Henderson told his mother that the

victim's mother was demanding a cash payment as the price of

"dropping the charges." Henderson's mother refused to make any

such payment. During this conversation, Henderson told his

mother that during the robbery, "Danny pulled a knife on Martin,

and Danny [the victim] should go to jail." Martin was

identified as the third robber. In a monitored call made by

Jones from the jail, Jones said: "[T]hey got me and they got

Terrance. . . . [H]ow did they get Martin?"

The detective testified that when she went to interview the

victim, he and his mother were "extremely scared of

5
retaliation." The mother said that "the day before the [c]ourt

[proceedings] she heard gunshots around the house, and that

really scared her." Ultimately, the victim refused to testify

and the Commonwealth took a nolle prosequi in the home invasion

robbery case.

Several times during the detective's testimony and again at

the close of the evidence, defense counsel renewed her objection

on hearsay and confrontation grounds, but the court overruled

the objections and found that Henderson had violated the terms

and conditions of his probation. The court stated no reasons

for its ruling. The court revoked the probation and entered an

order requiring Henderson to serve the remaining 18 years and

four months of his original 2001 sentence.

Henderson appealed to the Court of Appeals, which granted

him an appeal by a per curiam order. The case was heard by a

three-judge panel. By a published opinion, Henderson v.

Commonwealth, 58 Va. App. 363, 400, 710 S.E.2d 482, 500-01

(2011), the divided panel reversed the circuit court's judgment

and remanded the case for a new revocation hearing. The Court

granted the Commonwealth a rehearing en banc. The Court en

banc, with ten judges sitting, six judges joining, two judges

concurring in part, and two judges dissenting, vacated the panel

decision and affirmed the judgment of the circuit court. The en

banc Court held that there was no error in the admission of the

6
hearsay testimony and that Henderson had not preserved his

challenge to the failure of the trial court to state its reasons

for admitting the hearsay evidence. Henderson v. Commonwealth,

59 Va. App. 641, 648 n.4, 668, 722 S.E.2d 275, 279 n.4, 289

(2012) (en banc). We awarded Henderson an appeal.

Analysis

Henderson assigns two errors to the Court of Appeals'

judgment en banc: (1) that the judgment violated his

constitutional right to confront his accusers and (2) that the

judgment erroneously affirmed the circuit court's error in

admitting evidence in violation of the rule against hearsay.

When confrontation rights are asserted in a revocation

proceeding, for reasons hereinafter stated, we consider the rule

against hearsay to be entirely subsumed within the probationer's

limited due process right of confrontation. Therefore, we will

not consider Henderson's second assignment of error.

Henderson also argues on appeal that the circuit court had

a duty to state for the record the specific "good cause" it

found for denying his right to confront the witnesses against

him. The Court of Appeals held that claim procedurally

defaulted, not having been preserved for appeal. Henderson v.

Commonwealth, 59 Va. App. 641, 648 n.4, 722 S.E.2d 275, 279 n.4

(2012) (en banc). Henderson contends that the Court of Appeals

erred in so holding, but that ruling is not before us because it

7
was not made the subject of any assignment of error on appeal to

this Court. Rule 5:17(c)(1)(i).

Because parole revocation proceedings occur after a

criminal prosecution has ended in a conviction, a parolee is not

entitled to the "full panoply" of constitutional rights to which

he was entitled at trial. Morrissey v. Brewer 408 U.S. 471, 480

(1972). Following Morrissey, in Gagnon v. Scarpelli, 411 U.S.

778, 782 (1973), the Supreme Court of the United States held

that the same constitutional principles applied in probation

revocation hearings. Although the Sixth Amendment right of

confrontation applies only in criminal trials, a more limited

right of confrontation was included in the Due Process Clause of

the Fourteenth Amendment, applicable to parole and probation

revocation proceedings. The Supreme Court expressed the

Fourteenth Amendment's "minimum requirements of due process" as

providing:

(a) written notice of the claimed violations of
[probation]; (b) disclosure to the [probationer]
of evidence against him; (c) opportunity to be
heard in person and to present witnesses and
documentary evidence; (d) the right to confront
and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause
for not allowing confrontation); (e) a "neutral
and detached" hearing body such as a traditional
parole board, members of which need not be
judicial officers or lawyers; and (f) a written
statement by the factfinders as to the evidence
relied on and reasons for revoking [probation].

8
Morrissey, 408 U.S. at 489 (emphasis added). The parenthetical

exception within the confrontation right expressed in Morrissey

is central to this appeal.

Hearsay is frequently admitted in revocation proceedings.

See, e.g., id. (revocation proceedings allow consideration of

letters, affidavits, and other material that would not be

admissible in an adversary criminal trial); United States v.

Doswell, 670 F.3d 526, 530 (4th Cir. 2012) ("Supervised release

revocation hearings are informal proceedings in which the rules

of evidence, including those pertaining to hearsay, need not be

strictly applied").

Hearsay that is testimonial in nature, however, is subject

to the limited confrontation right provided by the Fourteenth

Amendment. Such hearsay may be admitted only when "the hearing

officer specifically finds good cause for not allowing

confrontation." Morrissey, 408 U.S. at 489. In the present

case, one may infer that the circuit court made such a finding

of good cause simply from the fact that Henderson's objections

on hearsay and confrontation grounds were overruled. The record

is silent, however, as to any ground upon which the court may

have relied in finding good cause. We think the Supreme Court's

holding in Morrissey implies that the trial court, when

dispensing with the due process right of confrontation, should

state for the record the specific grounds upon which the court

9
has relied for "not allowing confrontation" 2 in order to

facilitate effective appellate review of that decision. Because

the circuit court's failure to make such a statement has not

been preserved for appeal in the present case, and because we

have not previously articulated the requirement that such a

statement be made, we will not reverse for its omission but will

instead make an independent review of the record to ascertain

whether there was sufficient credible evidence before that court

to support a finding of "good cause for not allowing

confrontation."

Many federal and state courts have considered the question

of "good cause" in the context of Morrissey and Gagnon. Two

tests have emerged for determining whether the denial of the

right to confrontation in that context will comport with

constitutional due process. The first, the "reliability test,"

permits admission of testimonial hearsay in revocation

proceedings if it possesses substantial guarantees of

2
Accord, e.g., United States v. Rondeau, 430 F.3d 44, 47-48
(1st Cir. 2005) (hearsay was admissible at revocation hearing
only because the court determined explicitly why it was
reliable, and found on the record that the government had a good
reason not to produce declarants); Barnes v. Johnson, 184 F.3d
451, 454 (5th Cir. 1999) ("To fall within the good-cause
exception to the right of confrontation at a parole revocation
hearing[,] the hearing officer must make an explicit, specific
finding of good cause and state the reasons for that
finding. . . . The hearing officer must weigh the parolee's
interest in confronting the witness with the government's
interest in denying the parolee that right").

10
trustworthiness. See Crawford v. Jackson, 323 F.3d 123, 130

(D.C. Cir. 2003). Some guarantees include (1) detailed police

reports (as opposed to mere summaries of such reports by

probation officers), (2) affidavits or other hearsay given under

oath, (3) statements by the probationer that directly or

circumstantially corroborate the accusations, (4) corroboration

of accusers' hearsay by third parties or physical evidence, (5)

statements that fall within a well-established exception to the

hearsay rule, (6) evidence of substantial similarities between

past offenses and the new accusations that bolsters the

accuser's credibility, and (7) a probationer's failure to offer

contradictory evidence. Id.; United States v. Jones, 299 F.3d

103, 113 (2d Cir. 2002); United States v. Kelley, 446 F.3d 688,

692 (7th Cir. 2006); United States v. Lloyd, 566 F.3d 341, 345

(3d Cir. 2009); Curtis v. Chester, 626 F.3d 540, 547 (10th Cir.

2010). Evidence which alone would not be reliable would be bare

out-of-court statements reflecting an adversarial relationship

with the accused or statements contained within multiple layers

of hearsay. Lloyd, 566 F.3d at 345.

The second test, the "balancing test," requires the court

to weigh the interests of the defendant in cross-examining his

accusers against the interests of the prosecution in denying

confrontation. Id. at 344-45.

11
 The two tests are overlapping and are not mutually

exclusive. For instance, when applying the balancing test, the

reliability of the evidence may, in some circumstances, be so

strong as to overwhelm the defendant's interests in

confrontation. Id. at 345. The Attorney General, on brief,

concedes that resort to the balancing test may be appropriate

where the reliability of the hearsay is less compelling, but it

has been held that, in some circumstances, the balancing test is

clearly inappropriate:

[i]n the balancing process, the defendant's interest in
confronting the declarant is entitled to little, if any,
weight where the declarant's absence is the result of
intimidation by the defendant: Where a defendant has
procured the declarant's unavailability 'by chicanery,
. . . by threats, . . . or by actual violence or murder,'
the defendant is deemed to have 'waived his sixth amendment
rights and, a fortiori, his hearsay objection' to the
admission of the declarant's statements.

United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006)

(quoting United States v. Mastrangelo, 693 F.2d 269, 272-73 (2d

Cir. 1982)).

In those circumstances, the defendant has forfeited any

right to confrontation the Constitution may have otherwise

afforded him, leaving him no legitimate interests to be balanced

against those of the Commonwealth. We conclude that the court

12
may apply either test, as may be most appropriate in the

circumstances. 3

When a trial court is asked to admit testimonial hearsay

evidence in a probation revocation proceeding, the court must

make three decisions. First, will the admission of the hearsay

testimony violate the probationer’s Fourteenth Amendment limited

confrontation rights? To answer that question, the court must

determine whether the proposed evidence meets the appropriate

test as discussed above. That determination can only be made if

the content of the proposed evidence is fully disclosed to the

court. Such a disclosure may be made by a proffer, by

stipulation, or by admitting the evidence conditionally, subject

to striking it if it fails to meet the appropriate test.

Second, if the trial court decides that such testimony can be

admitted, does the testimony, along with other evidence support

the conclusion that a condition of the probation was violated?

And finally, in light of the violation, should the probation be

revoked in whole or in part? 4

3
The Court of Appeals, en banc, determined that the hearsay
testimony of Detective Ortiz satisfied both tests for good
cause. Henderson, 59 Va. App. at 656-59, 661, 663, 665, 722
S.E.2d at 283-87.
4
The second decision, relating to the weight of the
evidence, and the third, relating to the appropriate penalty
when a violation has been shown, are necessary in all probation
revocation proceedings, whether testimonial hearsay is offered
or not.

13
 On appellate review, ordinarily, "the determination of the

admissibility of relevant evidence is within the sound

discretion of the trial court subject to the test of abuse of

that discretion." Beck v. Commonwealth, 253 Va. 373, 384-85,

484 S.E.2d 898, 905 (1997). However, whether a defendant's due

process rights are violated by the admission of evidence is a

question of law, to which we apply a de novo standard of review.

Volkswagen of Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d

679, 684 (2010). See United States v. Neeley, 420 Fed. Appx.

228, 231 (4th Cir. 2011) (court applies de novo review in due

process challenges to revocation of supervised release); United

States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (same).

Therefore, the application of the abuse of discretion standard

of review is inappropriate when considering this due process

issue. Rather, while accepting the historical facts, we apply a

de novo review to determine whether the admission of the

testimonial hearsay meets either the reliability or balancing

test as a matter of law.

In reviewing the second question, we apply the well-

established standards applicable to review of the sufficiency of

the evidence, e.g., Crawford v. Commonwealth, 281 Va. 84, 111-

12, 704 S.E.2d 123-24 (2011). We apply the abuse of discretion

standard to the third question, Code § 19.2-306(A); Slayton v.

Commonwealth, 185 Va. 357, 365, 38 S.E.2d 479, 483 (1946). In

14
this case, only the first question is before us and accordingly,

we will apply a de novo standard of review.

For reasons analogous to those governing appellate review

of records of criminal trials, we will view the evidence

received at the revocation hearing in the light most favorable

to the Commonwealth, as the prevailing party, including all

reasonable and legitimate inferences that may properly be drawn

from it. See, e.g., Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). The evidence was largely

circumstantial, but circumstantial evidence is entitled to the

same weight as direct testimony. Riner v. Commonwealth, 268 Va.

296, 303, 601 S.E.2d 555, 558 (2004). "While no single piece of

evidence may be sufficient, the combined force of many

concurrent and related circumstances, each insufficient in

itself, may lead a reasonable mind irresistibly to a

conclusion." Commonwealth v. Hudson, 265 Va. 505, 514, 578

S.E.2d 781, 786 (2003) (citation and internal quotation marks

omitted).

Applying these principles, we turn to the record of the

revocation hearing in the present case. The Commonwealth

pointed out to the court that Henderson, who was personally

present, was covered "from neck to toe" with tattoos depicting

the symbols and insignia of the "Gangsta Disciples," a well-

known criminal street gang. Photographs of his upper body were

15
admitted in evidence showing these tattoos and showing him with

a group of other men making the gang's hand signal, called

"throwing up a pitchfork." 5 Some of the photographs were taken

from Henderson's cellular telephone. That evidence was

circumstantial corroboration of Detective Ortiz' hearsay

testimony that the victims and other witnesses were deterred

from testifying by intimidation exerted upon them by Henderson

through his allies.

Awareness of the dangerous proclivities of criminal street

gangs, see, e.g., Rushing v. Commonwealth, 284 Va. 270, 726

S.E.2d 333 (2012); Hamilton v. Commonwealth, 279 Va. 94, 688

S.E.2d 168 (2010), has become a lamentable feature of urban

life. This evidence demonstrated that the witnesses were

intimidated by Henderson or his gang to the degree that they had

all refused to testify. All were residents of the same

neighborhood and likely aware that Henderson had just been

released from eight years' imprisonment for a crime of violence.

They were likely motivated by the belief that Henderson had

almost immediately resumed his former pattern of criminal

behavior, now assisted by his fellow gang members.

5
Certain characteristics of membership in or association
with the Gangsta Disciples street gang, including a description
of the gang's hand signal, were discussed in Rushing v.
Commonwealth, 284 Va. 270, 275, 726 S.E.2d 333, 336 (2012).

16
 Detective Ortiz' hearsay testimony was circumstantially

corroborated by evidence emanating from sources other than the

statements the victims had made to her. The record also

contained Henderson's shifting and highly improbable accounts to

explain the use of his telephone to entice the first victim to

leave his home. Additionally, the monitored telephone calls

made by Henderson and his co-defendants from the jail were

implied admissions of their participation in the home-invasion

robbery as well as Henderson's actual description, to his

mother, of an occurrence at the robbery scene. Further, the

record shows the recovery, pursuant to a search warrant, of

property stolen in the robbery, from a car in which Henderson

admitted that he had been riding with his co-defendants. On the

issue of intimidation of the Commonwealth's witnesses, crucial

to this appeal, most telling were the direct threats against the

victims made by the men in jail in their monitored telephone

calls and their efforts, ultimately successful, to recruit

agents outside the jail to persuade the victims not to testify.

Most of the hearsay statements contained in the monitored

telephone calls were not offered for the truth of the

utterances, but rather to prove the state of the declarant's

mind as it bore on consciousness of guilt, efforts to conceal

participation in crime and desire to avoid detection. These

matters fall outside the rule against hearsay, Va. R. Evid.

17
2:802, or come within its well-recognized exceptions, e.g., Va.

R. Evid. 2:803, and thus bear circumstantial guarantees of

trustworthiness satisfying the "reliability test." See, e.g.,

Jackson, 323 F.3d at 130. The evidence of witness intimidation

was alone sufficient to satisfy the "balancing test." See

Williams, 443 F.3d at 45. We therefore agree with the Court of

Appeals' holding, en banc, that the evidence at the revocation

hearing, taken as a whole, was sufficient as a matter of law to

satisfy both the reliability and the balancing tests, thereby

comporting with the constitutional requirements for admitting

the testimonial hearsay evidence and denying Henderson his

Fourteenth Amendment confrontation rights for "good cause."

Conclusion

Accordingly, we will affirm the judgment of the Court of

Appeals sustaining the trial court’s admission of the

testimonial hearsay evidence in this probation revocation

proceeding.

Affirmed.

SENIOR JUSTICE LACY, with whom CHIEF JUSTICE KINSER and JUSTICE
GOODWYN join, concurring.

I concur with the majority's conclusion that a trial court

may apply either a reliability test or a balancing test when

considering whether hearsay evidence may be admitted in a

probation revocation proceeding. I also agree with the

18
majority's conclusion that the hearsay evidence at issue in this

case was admissible. However, I do not agree with the

majority's application of the tests to the circumstances of this

case. Therefore, I would affirm the en banc judgment of the

Court of Appeals that the trial court's admission of the hearsay

evidence was not improper for the following reasons.

The factual basis for the probation officer's request that

Henderson's probation be revoked and his suspended sentence be

imposed was based on two events involving Henderson - the

attempted robbery of an individual for which a complaint was

never filed and Henderson's involvement in and arrest for a home

invasion robbery which was ultimately nolle prossed, apparently

because the victim was unwilling to testify.

At the revocation proceeding, the Commonwealth's evidence

consisted of the testimony of Detective Rosa Ortiz, who

investigated the two incidents. This appeal involves

Henderson's objections to that part of Ortiz' testimony relating

statements made to Ortiz by the victims of each crime and their

relatives.

The majority and all parties agree that a defendant is

entitled to due process protection in a probation revocation

proceeding, but that the level of protection afforded does not

embrace the "full panoply" of protection available in a criminal

19
proceeding. Morrissey v. Brewer, 408 U.S. 471, 480 (1972). As

relevant here, the due process right to confront and cross-

examine witnesses may be limited if the judicial officer

conducting the proceeding "specifically finds good cause for not

allowing confrontation." 1 Id. at 489.

Because we conclude that good cause to deny a defendant his

due process right of confrontation may be based on compliance

with either the reliability test or balancing test, satisfaction

of either test is sufficient to sustain the admissibility of the

hearsay testimony.

The majority’s conclusion that the hearsay testimony may be

admitted in this case because it meets the balancing test is

based on the theory that the victims' failure to testify at the

revocation hearing was the result of intimidation by Henderson

"and his allies," "his fellow gang members." Case law from

other jurisdictions has established that when the failure of a

witness to testify in a revocation hearing is the result of

intimidation by the defendant, the defendant’s confrontation

1
As the majority notes, even though the trial court did not
make the prerequisite finding of good cause required by
Morrissey when limiting the right of confrontation, the en banc
Court of Appeals did not address that issue, holding that
Henderson did not preserve the issue for appeal. Henderson, 59
Va. App. at 648 n.4, 722 S.E.2d at 279 n.4.

20
right is "of little weight" and the balancing test weighs in

favor of the Commonwealth, allowing admission of the hearsay

evidence of such witness' statements. United States v.

Williams, 443 F.3d 35, 45 (2d Cir. 2006)(quoting United States

v. Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982)).

Ortiz' testimony regarding intimidation related to the

first victim's reticence to prosecute the attempted robbery and

the second victim's refusal to testify in the prosecution of the

home invasion robbery. None of this testimony addressed the

victims' reticence to testify in the parole revocation hearing.

More importantly, none of the statements referring to the

victims' reticence to testify described acts taken by Henderson

to keep the victims from testifying. Similarly, Ortiz'

testimony regarding the monitored telephone calls, not

challenged by Henderson as hearsay, did not involve any action

or statements by Henderson.

The majority’s intimidation theory also rests on evidence

that Henderson wore tattoos, a factor not mentioned by the

Commonwealth until well after the trial court's decision to

admit the hearsay evidence, and on the connection of such

tattoos to certain gangs, another fact not in evidence.

In my opinion, when applying the balancing test in

probation revocation proceedings, acts of intimidation by the

21
defendant or at his or her direction should be firmly

established, not merely implied or imputed to the defendant

through generalized assumptions. Reliance on assumptions

associated with Henderson's tattoos and various assumptions

about the neighborhood and what the victim knew and thought

about Henderson's return from prison and reengagement in

criminal behavior do not, as a matter of law, outweigh

Henderson's due process right of confrontation. To base a

determination that there was intimidation on these assumptions

and inferences sets the bar extremely low, allowing trial judges

in future probation revocation cases to allow hearsay testimony

on the thinnest of reeds.

Admissibility of the hearsay evidence, however, was not

error in my opinion because the evidence met the reliability

test. The undisputed fact that the police obtained an arrest

warrant for Henderson for the home invasion robbery provides

corroboration of that victim's statements that the robbery

occurred and that Terrance Henderson was identified as a suspect

in the robbery. While the arrest warrant was not a "detailed

police investigative report" it falls within that category of

items that support guarantees of the trustworthy nature of the

hearsay testimony regarding that victim's statements. See

Crawford v. Jackson, 323 F.3d 123, 130-31 (D.C. Cir. 2003).

22
Furthermore, the defendant himself told Ortiz that he was in the

car where the victim's stolen property was found and that he

knew the other persons charged with the alleged robbery.

Finally, Ortiz testified that during the monitored telephone

calls Henderson stated that during the home invasion robbery,

"Danny pulled a knife on Martin, and Danny . . . should go to

jail." 2 Henderson's own statement describing elements occurring

during the confrontation further corroborated the victim's

hearsay statement that the crime occurred and that Henderson was

involved.

No independent police investigative report or arrest

warrant corroborated the hearsay testimony of the attempted

robbery; however, the description of the attempted robbery the

victim relayed to Ortiz was very detailed and specific. More

importantly, the victim's testimony centered around the

telephone calls luring the victim outside on the pretext of

going to the courthouse. Henderson admitted to the victim and

2
I note that the majority asserts that the testimony
regarding the monitored phone calls is admissible under the
recognized hearsay exception of offering the testimony not for
the purpose of the truth but to show state of mind. That
exception to the hearsay rule was not argued by the Commonwealth
at trial or on appeal. In any event, Henderson is not
challenging the admission of this testimony. He challenges only
the hearsay testimony of the robbery victims and that testimony
does not fall under an exception to the hearsay rule.

23
to Ortiz that he owned the cellular telephone from which the

calls to the victim originated. Henderson's conflicting

explanations that he had loaned the cellular telephone to

another unknown person, and alternatively that the telephone had

been stolen, did not diminish the fact that he admitted that he

owned the telephone that was used to lure the victim outside

where the attempted robbery occurred.

Accordingly, I conclude that the victims' hearsay testimony

met the requisite guarantees of trustworthiness such that its

admission did not violate Henderson's due process right of

confrontation.

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