COURT OF APPEALS OF VIRGINIA
Present: Judges Decker, Malveaux and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
HAROLD BENJAMIN, A/K/A
DARRELL BERNARD STEWART, A/K/A
BENJAMIN HAROLD
MEMORANDUM OPINION* BY
v. Record No. 0920-16-2 JUDGE MARLA GRAFF DECKER
DECEMBER 19, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge
Lauren Whitley, Deputy Public Defender, for appellant.
David M. Uberman, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Harold Benjamin appeals a ruling of the circuit court revoking his suspended sentences for
grand larceny, attempted grand larceny, and statutory burglary when he was charged with numerous
new theft-related crimes. On appeal, he alleges that the circuit court erred by admitting testimonial
hearsay in his revocation hearing in violation of his due process right of confrontation. We hold that
to the extent that the appellant preserved his due process challenge to certain categories of evidence
for appeal, no reversible error occurred. Accordingly, we affirm the revocation of the suspension of
his sentences.
I. BACKGROUND
In 2005 and 2008, the appellant was convicted of three offenses: grand larceny,
attempted grand larceny, and statutory burglary. He was sentenced to serve a total of twenty
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
years in prison, with sixteen years suspended on various conditions including good behavior. In
2015, the circuit court issued an order requiring the appellant to show cause why his suspended
sentences should not be revoked as a result of numerous new charges and convictions for
trespassing and larceny.1
On February 18, 2016, the appellant appeared for a trial on the new charges and a
revocation hearing on his previously suspended sentences. The prosecutor made a motion to
dispose of two felony petit larceny charges by nolle prosequi, explaining that a key witness was
not present. The circuit court granted the motion over the appellant’s objection.
The court then heard evidence on the remaining charges, which related to a series of
thefts from August 2014 to February 2015 in various state buildings in the Capitol area of
downtown Richmond. Some of the buildings at issue housed parts of Virginia Commonwealth
University (VCU), including its School of Medicine, as well as the Virginia Department of
Transportation (VDOT). With the exception of the two petit larceny charges that were dismissed
by nolle prosequi, the circuit court acquitted the appellant of the new offenses. It did so in part
based on its finding that photographs that the Commonwealth produced from the surveillance
videos relating to the offenses were of extremely poor quality. It also rejected the testimony of a
witness who reported purchasing electronics items from the appellant that were later determined
to have been stolen. The court continued the revocation portion of the proceeding.
At the revocation hearing on May 20, 2016, the court adopted the trial evidence.2 The
Commonwealth also introduced two convictions for trespassing on VCU property on August 21
1
The circuit court permitted an amendment of the order to add two convictions.
2
At the trial on February 18, 2016, the court noted that it and counsel were “in
agreement” to “adopt the evidence” from the trial for purposes of the revocation hearing. The
court also indicated that the parties would be permitted to introduce additional evidence at the
revocation proceeding. At the revocation proceeding, the Commonwealth expressly asked the
court “to adopt the trial evidence.”
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and November 24, 2014, both of which were rendered prior to the 2015 revocation show cause
order. Additionally, it presented evidence on the two felony petit larceny charges previously
dismissed by nolle prosequi. The evidence included the testimony of the victims of the petit
larcenies, Lidia Peck and Cherisha Rowlette, two colleagues at VDOT. Their cellular telephones
were stolen from their nearby cubicles while they were away from their desks at lunchtime.
Special Agent J.L. Cosby of the Virginia Capitol Police testified about obtaining
telephone records related to the thefts and examining surveillance video from the VDOT
building where the thefts occurred. Through Cosby’s testimony, the prosecutor admitted five
photographs of what appeared to be the same individual in various locations inside and outside
the VDOT building between 11:44 and 11:58 a.m. on the day of the cell phone thefts. Cosby
testified that four of the photos appeared to depict the same man, who was wearing a
long-sleeved white top, dark pants, and dark shoes, and was carrying a black backpack. The fifth
photo depicted “a secured little room” where the victims worked and showed just the top of the
bald head of a person of the same race as the man in the other photographs.
Sergeant Anthony Gulotta, also of the Virginia Capitol Police, testified about his work
with Special Agent Cosby on the investigation. Gulotta said that he talked with the appellant’s
brother and examined other surveillance video in the course of identifying the appellant as a
suspect. Gulotta further explained that he obtained a photograph purporting to be a Harold
Benjamin from the public website Facebook. The photo, which was admitted into evidence,
showed the appellant in a white sweater and dark pants.
During the Commonwealth’s case-in-chief, the appellant made numerous objections
based on due process, the right of confrontation, and the rule against hearsay. The circuit court
overruled the objections and found that the appellant violated his probation. In doing so, it noted
that it “vividly remember[ed] the allegations” from the trial, stating that although the photos
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presented at that time were not clear enough to show facial features, the person in those previous
photographs bore “very strong similarities” to the better quality photographs offered into
evidence in the revocation proceeding. It also referred to the Facebook photograph of the
appellant and observed that the sweater and shoes the appellant was wearing in that photograph
were very similar to those worn by the individual in the surveillance photographs of the VDOT
building on the day of the thefts. Additionally, the court explicitly referenced evidence of phone
calls made from one of the stolen phones to the appellant’s brother and sister-in-law in the hours
after the thefts. Further, it noted that all the incidents “took place . . . along the VCU [and
VDOT] corridor.” Finally, the court observed that the appellant’s new trespass convictions also
occurred on VCU property.
In sentencing the appellant, the court revoked the sixteen years remaining on his
sentences and resuspended twelve years, giving him an additional active sentence of four years.
II. ANALYSIS
The appellant argues that the circuit court’s admission of testimonial hearsay evidence at
the revocation hearing violated his due process right of confrontation. He also suggests that the
court “consistently ruled all hearsay was admissible and never engaged in the . . . tests” required
by controlling case law. He further contends that the record is insufficient to permit this Court to
conduct its own good cause analysis. He challenges two categories of evidence on brief:
(1) data gleaned from telephone records and (2) information that Sergeant Gulotta obtained from
the appellant’s brother.
A. Standard of Review and Due Process Right of Confrontation
An appellate court reviews evidence admitted in a 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.” Henderson v. Commonwealth, 285 Va. 318,
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329, 736 S.E.2d 901, 907 (2013). A finding that a defendant has violated the conditions of his
probation or suspended sentence is reviewed for an abuse of discretion. See, e.g., Whitehead v.
Commonwealth, 278 Va. 105, 116, 677 S.E.2d 265, 271 (2009). A determination regarding the
relevance and admissibility of evidence in a revocation proceeding is ordinarily also reviewed
under such a standard. Henderson, 285 Va. at 329, 736 S.E.2d at 907. However, whether a
defendant’s due process rights have been violated by the admission of evidence is a question of
law that is reviewed de novo. Id.
The defendant in a revocation proceeding “is not entitled to the ‘full panoply’ of
constitutional rights to which he was entitled at trial” because the proceeding “occur[s] after a
criminal prosecution has ended in a conviction.” Id. at 325, 736 S.E.2d at 905 (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). The rules of evidence are not “‘strictly
applied,’” and “[h]earsay is frequently admitted in revocation proceedings.” Id. at 326, 736
S.E.2d at 905 (quoting United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012)); see id.
(recognizing the routine admission of “letters, affidavits, and other material”). Only if the
hearsay is testimonial in nature is its admission subject to challenge in a revocation proceeding.
See id. Additionally, the basis for this challenge in a state revocation hearing is not the
Confrontation Clause of the Sixth Amendment to the United States Constitution but, rather, a
more limited right of confrontation under the Due Process Clause of the Fourteenth Amendment.
See id. at 325-26, 736 S.E.2d at 905; Saunders v. Commonwealth, 62 Va. App. 793, 807-08, 753
S.E.2d 602, 609 (2014).
Case law interpreting this due process right provides that testimonial hearsay is
admissible in a revocation proceeding when the judge “specifically finds good cause for not
allowing confrontation.” Henderson, 285 Va. at 326, 736 S.E.2d at 905 (quoting Morrissey, 408
U.S. at 489). The Supreme Court of Virginia has expressly held that when a circuit court
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“dispens[es] with the due process right of confrontation, [it] should state for the record the
specific grounds upon which [it] has relied for ‘not allowing confrontation’ in order to facilitate
effective appellate review of that decision.” Id. at 326-27, 736 S.E.2d at 906 (quoting Morrissey,
408 U.S. at 489); see Cox v. Commonwealth, 65 Va. App. 506, 513, 520, 779 S.E.2d 199, 202,
205-06 (2015). However, the Court has also observed that a defendant may waive the right to
have the circuit court make explicit “good cause” findings by failing to ask it to do so.
Henderson, 285 Va. at 327, 736 S.E.2d at 906.
The Supreme Court has further held that if a good cause finding was not specifically
requested, “one may infer that the circuit court made such a finding . . . simply from the fact that
[a defendant’s] objections on hearsay and confrontation grounds were overruled.” Id. at 326,
736 S.E.2d at 905. When the circuit court does not make express findings, the appellate court
will conduct “an independent review of the record to ascertain whether . . . sufficient credible
evidence [was] before that court to support a finding of ‘good cause.’” Id. at 327, 736 S.E.2d at
906 (quoting Morrissey, 408 U.S. at 489); see Cox, 65 Va. App. at 519-20, 779 S.E.2d at 205. If
the record does not establish good cause, reversal and remand are required unless the erroneous
admission of the testimonial hearsay evidence was harmless. See Cox, 65 Va. App. at 520-21,
779 S.E.2d at 205-06.
Here, in objecting on due process grounds, the appellant did not mention the good cause
requirement or ask the court to make findings with respect to that requirement. Consequently, to
the extent that the appellant’s claims are preserved, this Court examines the record to ascertain
whether it supports findings of good cause to admit the various categories of evidence without
confrontation.
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B. Admissibility of Telephone Records
The appellant challenges the admissibility of telephone records and some of the data
obtained from them. We hold that he has failed to establish reversible error with regard to these
records.
Rowlette testified that she checked her nTelos account online the evening after her phone
disappeared and saw that a call had been made to a telephone number that she did not recognize.
The appellant objected to her testimony on “foundation” and “hearsay grounds.” The prosecutor
responded that a different standard applied in a revocation hearing than at trial. The court agreed
and overruled the objection.
Special Agent Cosby related that he investigated the thefts of the phones belonging to
Peck and Rowlette. The day after the thefts occurred, Rowlette sent him a printout of her online
phone records showing a single call placed from her phone to a number she did not recognize.
Cosby testified that using “an open source tool” available to the Capitol Police, he learned that
the number dialed belonged to “a Ms. [Burwell].” The appellant objected expressly on hearsay
grounds, stating that even in a show cause proceeding, the Commonwealth was required to
establish “a threshold account of reliability.” The court rejected the hearsay objection, stating
that it would “give [the prosecutor] some leeway” to establish reliability. The prosecutor then
elicited testimony that Cosby used a search warrant to obtain written records from nTelos for
Rowlette’s phone. Special Agent Cosby examined the nTelos records for the date of the theft
and found the number that Rowlette had earlier provided as the number she did not recognize.
The records indicated that this number had been called from Rowlette’s phone twice in the hours
after the theft. The appellant then renewed his objection and inquired whether the records would
be introduced into evidence. When the prosecutor confirmed that he planned to introduce them,
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the appellant “add[ed] . . . confrontation clause and due process” objections. The court again
overruled the objections and admitted the nTelos records into evidence.
The prosecutor also elicited additional testimony from Cosby about a subpoena issued to
Verizon for records for the “land line” telephone number dialed from Rowlette’s phone. Cosby
testified that Verizon provided information indicating that the subscriber of the telephone
number was “Customer name Annette . . . Benjamin, listing name Annette [Burwell].” The
Commonwealth then made a motion to admit the document. The appellant objected “on hearsay,
confrontation clause and due process” grounds. The circuit court admitted the exhibit.
This record supports the conclusion that the appellant waived his right to challenge the
admission of some of this evidence on due process grounds and that the admission of other
portions of the evidence, if error, was harmless. The appellant objected only on unrelated
grounds or objected too late, after testimony about the evidence had already been admitted,
rendering any erroneous admission of the cumulative evidence harmless.
Under settled principles, a mere hearsay objection does not alert the court to an objection
on constitutional confrontation grounds, regardless of whether that right arises under the
Confrontation Clause of the Sixth Amendment or the Due Process Clause of the Fourteenth
Amendment. See Riner v. Commonwealth, 268 Va. 296, 325 n.11, 601 S.E.2d 555, 571 n.11
(2004) (Sixth Amendment Confrontation Clause).
Here, the appellant failed to preserve for appeal a due process objection to the testimony
of Rowlette. When Rowlette testified that she checked her nTelos phone records online and
learned that someone had made an outgoing call from her phone after the theft to a number that
she did not recognize, the appellant objected only on foundation and hearsay grounds. Thus, he
waived his right to contest the admission of this testimony on due process grounds. See id.
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The appellant similarly failed to preserve for appeal a due process objection to the related
testimony given by Special Agent Cosby. The appellant objected only on hearsay grounds to
Cosby’s testimony that he used a police “tool” to check the telephone number that the online
records indicated was called from Rowlette’s phone and that the number “came back to a
Ms. [Burwell].” Again, because the appellant objected only on hearsay grounds, he waived any
objection on due process grounds. See id.
The appellant also did not adequately preserve for appeal any objection to Special Agent
Cosby’s testimony regarding the information in the records that he obtained from nTelos by
subpoena. Cosby testified without objection that the documents showed two phone calls from
Rowlette’s number in the hours after the theft. Only after Cosby had given this testimony did the
appellant object, stating, “I’m just going to renew my objection at this point,” referring,
presumably, to his prior hearsay objections. Once again, such an objection was insufficient to
present a due process challenge. See id. The appellant then stated, “I don’t know if the Court[is]
planning on introducing these records --.” (Emphasis added). When the prosecutor confirmed
that he was planning to introduce them, the appellant “add[ed]” confrontation clause and due
process grounds, clearly limiting his due process objection to the admission of the records. He
did not indicate that he was objecting on confrontation or due process grounds to the testimony
that Special Agent Cosby had already given. Consequently, the nTelos documents were
cumulative of Cosby’s testimony, and any error in admitting them was harmless. See, e.g.,
Dearing v. Commonwealth, 260 Va. 671, 673-74, 536 S.E.2d 903, 904 (2000).
Finally, the appellant did not adequately preserve for appeal any objection to Special
Agent Cosby’s testimony regarding the information in the Verizon records. Once again, the
appellant objected only when the prosecutor asked the court to admit the Verizon document into
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evidence. The appellant did not register an objection to Cosby’s related testimony.3
Accordingly, the Verizon document was merely cumulative of Cosby’s testimony, and any error
in admitting it was harmless. See id.
In short, the appellant has failed to establish any reversible error with regard to the
admission of evidence of the nTelos and Verizon telephone records.
C. Admissibility of Ronald Benjamin’s Statements to Sergeant Gulotta
The remaining evidence involves the appellant’s challenge to the admissibility of
testimony about Sergeant Gulotta’s conversation with the appellant’s brother, Ronald Benjamin.
The evidence that the appellant challenges consists of Ronald’s “identification of Harold
Benjamin”; Ronald’s confirmation “that the outgoing phone call from the stolen phone was made
to his phone number”; and Ronald’s statements identifying Annette Benjamin as his wife and the
appellant as his brother.
At trial, Sergeant Gulotta explained his involvement in investigating the series of Capitol
area larcenies in 2014 and 2015. Gulotta testified that in December 2014, he investigated a theft
that occurred that month from a different building than the one in which Rowlette and Peck
worked. In the course of that investigation, he reviewed the building’s sign-in sheets and
surveillance video for the relevant time period. He identified “someone of interest,” whom he
described as a male of a particular race, “approximately[] 6 feet tall, heavy build.” Based on the
3
Moreover, even if the appellant’s due process objections encompassed not only the
nTelos and Verizon records but also Cosby’s testimony about their contents, the appellant did
not move to strike Cosby’s testimony. See M.G. v. Albemarle Cty. Dep’t of Soc. Servs., 41
Va. App. 170, 189 n.10, 583 S.E.2d 761, 770 n.10 (2003) (noting that when a litigant objects but
does not “move to strike . . . testimony already given,” that testimony is “part of the record for
purposes of appeal” (citing Kent Sinclair, Joseph C. Kearfoot, Paul F. Sheridan & Edward J.
Imwinkelried, Virginia Evidentiary Foundations § 2.4[A], at 20 (1998); 1 John W. Cooley,
Callaghan’s Appellate Advocacy Manual: Lawyer’s Edition § 3.09, at 29 (1993))). Accordingly,
that testimony is part of the record for purposes of appeal, further supporting the conclusion that
admission of the phone records was harmless.
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names on the sign-in sheets, Gulotta concluded that the man signed in as “Ronald Benjamin.”
Using a “police database,” Gulotta “look[ed] up Ronald Benjamin.” When the prosecutor asked
him if he “[found] out who that individual was or anything about him,” Gulotta responded
affirmatively. The appellant objected based on foundation, hearsay, confrontation, and due
process grounds. The court overruled the appellant’s objection. The prosecutor inquired
whether Gulotta found out where Ronald Benjamin worked, and he responded, “At the time, no.”
Gulotta then testified, without objection, that he “was told” that a man named Harold
Benjamin, the name of the appellant, worked for a particular company in Sandston. Based on
that information, Sergeant Gulotta visited the business within a month of the December 2014
theft he was investigating. There, he met with employee Ronald Benjamin. Gulotta was not
asked precisely how he came to meet with Ronald rather than Harold Benjamin. Gulotta further
testified that although he originally considered Ronald Benjamin a suspect because his name
appeared in the sign-in log, he immediately concluded upon meeting Ronald Benjamin that
Ronald “[a]bsolutely [did] not” match the person Gulotta saw in the surveillance videos who had
signed in using that name.
When the prosecutor inquired whether Gulotta asked Ronald Benjamin if he knew Harold
Benjamin or if Ronald told him “about another person,” the appellant objected on hearsay,
confrontation, and due process grounds. The prosecutor and the judge agreed that the
information was hearsay, but the prosecutor again noted that the hearing was “a show cause
proceeding,” and the court overruled the objection. Gulotta then stated that Ronald Benjamin
“gave [him] the name of Harold Benjamin.”
Gulotta testified that he subsequently located and printed a Facebook photograph
purporting to be a Harold Benjamin. Gulotta further indicated that he located the same man
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“[t]hrough the video cameras . . . that were at VDOT, various places.” He also confirmed that
the appellant was the person in the Facebook photo.
When the prosecutor asked Gulotta if he spoke to Ronald Benjamin “about this telephone
number” and “who his wife was,” the appellant made his most detailed confrontation clause
objection, arguing that “[i]n addition to hearsay, due process . . . require[s] . . . confrontation . . .
in show cause proceedings and . . . an officer asking a suspect information about [the appellant
as] part of the criminal investigation would impl[icate] the confrontation clause.” The prosecutor
responded that the appellant’s “counsel [could] test the reliability on [c]ross-examination when
it’s being offered from a police officer.” The judge overruled the objection. The prosecutor then
elicited testimony from Sergeant Gulotta that Ronald Benjamin confirmed that “Annette
Benjamin [was] his wife,” that an unspecified “phone number was . . . his phone number,” and
that Harold Benjamin “was his brother.”
1. Testimonial Hearsay
As stated supra in Part II.A., due process principles provide that a defendant in a
revocation proceeding may successfully object to the admission of hearsay that is testimonial
unless “sufficient credible evidence . . . support[s] a finding of ‘good cause for not allowing
confrontation’” of the declarant. Henderson, 285 Va. at 326-27, 736 S.E.2d at 905-06 (quoting
Morrissey, 408 U.S. at 489); see Cox, 65 Va. App. at 519-20, 779 S.E.2d at 205. A hearsay
statement is testimonial when it results from an “interrogation” the “primary purpose” of which
“is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v.
Washington, 547 U.S. 813, 822 (2006); see id. (categorizing hearsay statements made “to enable
police assistance to meet an ongoing emergency” as non-testimonial). Here, the record
establishes that Sergeant Gulotta spoke with Ronald Benjamin while investigating a series of
Capitol area larcenies. Accordingly, Ronald Benjamin’s challenged statements to Gulotta
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qualify as testimonial hearsay. As such, they were inadmissible unless the record establishes
good cause for not requiring that the appellant be allowed to confront Ronald Benjamin about
them. See Henderson, 285 Va. at 327, 736 S.E.2d at 906.
2. Good Cause for Admitting Testimonial Hearsay Without Confrontation
The Supreme Court of Virginia recognizes two tests for evaluating whether good cause
exists to admit testimonial hearsay without confrontation in a revocation proceeding, the
reliability test and the balancing test. See id. at 327-28, 736 S.E.2d at 906. Either test may be
used by the court in its discretion. Id. at 328, 736 S.E.2d at 907. The reliability test permits the
admission of testimonial hearsay in revocation proceedings if it possesses “substantial guarantees
of trustworthiness.” Id. at 327, 736 S.E.2d at 906. The Supreme Court recognizes a variety of
categories of substantially trustworthy information. Id. Those categories include “detailed
police reports (as opposed to mere summaries of such reports by probation officers),”
“corroboration of accusers’ hearsay by third parties or physical evidence,” and a defendant’s
“failure to offer contradictory evidence.” Id. Evidence that “alone” would not be sufficiently
trustworthy includes “bare out-of-court statements reflecting an adversarial relationship with the
accused or statements contained within multiple layers of hearsay.” Id. 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 327-28, 736 S.E.2d at 906.
3. Application of Good Cause Principles
The appellant challenges Ronald Benjamin’s “identification of Harold Benjamin”;
Ronald’s confirmation “that the outgoing phone call from the stolen phone was made to his
phone number”; and Ronald’s statements identifying Annette Benjamin as his wife and the
appellant as his brother. We hold that the appellant misunderstands the nature of the first two
statements and that good cause existed for not requiring that the appellant be allowed to confront
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Ronald Benjamin about the final challenged category of statements, regarding family
relationships.
The appellant first characterizes Sergeant Gulotta’s meeting with Ronald Benjamin as
“identif[ying] Mr. Harold Benjamin to Sergeant Gulotta.” However, a careful reading of the
record, viewed in the light most favorable to the Commonwealth, reflects that Gulotta knew the
name Harold Benjamin before he ever met Ronald Benjamin and that his first encounter with
Ronald Benjamin was accidental. See id. at 329, 736 S.E.2d at 907. Gulotta testified that he
obtained the name Ronald Benjamin from watching video surveillance recordings and reviewing
the sign-in sheets from one of the buildings in which a December 2014 theft had occurred. He
further explained that he went to the business in Sandston because he “was told” that a Harold
Benjamin worked there.4 Once he arrived at the lumber company, he met Ronald Benjamin.
Therefore, the record makes clear that Sergeant Gulotta already knew of Harold Benjamin’s
existence before he met Ronald Benjamin. Ronald Benjamin did not “identif[y]” Harold
Benjamin to Sergeant Gulotta, and the record contains no factual basis for this challenge.
The appellant argues second that Sergeant Gulotta testified that Ronald Benjamin told
him “that the outgoing phone call from [Rowlette’s] stolen phone was made to [Ronald
Benjamin’s] phone number.” Once again, however, Gulotta’s testimony about the phone number
does not establish such a link. The transcript reflects that Gulotta confirmed that he spoke to
Ronald Benjamin “about this telephone number” and that “the phone number was . . . his phone
number.” Nevertheless, the record also shows that Gulotta never testified how he learned of the
4
Gulotta did not explain who told him that a Harold Benjamin worked at the lumber
company or why he sought to make contact with Harold Benjamin at that time. However, other
evidence established that while Gulotta and Cosby were investigating the series of larcenies, the
Capitol Police received a call about a “suspicious person” at a building where a large number of
larcenies had occurred. The police locked down the building, detained a suspect who matched
surveillance video from several prior thefts, and identified the suspect as Harold Benjamin.
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phone number about which he asked Ronald Benjamin or what specific telephone number they
discussed. Consequently, Gulotta’s testimony about Ronald Benjamin’s statements regarding
“this telephone number” did not prove that the outgoing number called from Rowlette’s stolen
phone after the theft was to any specific telephone to which Ronald Benjamin had access.
Accordingly, based on the record, the only statements of Ronald Benjamin to be
evaluated for good cause to excuse due process confrontation are his statements identifying
Annette Benjamin as his wife and the appellant as his brother.
Several of the factors comprising the “substantial guarantees of trustworthiness” test
support the conclusion that these identifications, although testimonial hearsay, “meet[] . . . the
reliability . . . test as a matter of law.” See Henderson, 285 Va. at 327, 329, 736 S.E.2d at
906-07. One factor cites “detailed police reports (as opposed to mere summaries of such reports
by probation officers).” Id. at 327, 736 S.E.2d at 906. Here, Sergeant Gulotta testified under
oath, providing a far stronger basis for accepting the trustworthiness of the results of his
investigation than would be provided by the mere submission of a police report through a
probation officer. The hearsay, therefore, was limited to a single layer.
The appellant argues that even this single layer of hearsay was too much and that he was
entitled to test Ronald Benjamin’s statements because Ronald had been identified through a
police database and had a reason to lie to Gulotta to absolve himself of criminal liability. This
characterization fails to view the evidence, including the court’s implicit credibility findings, in
the light most favorable to the Commonwealth. See id. at 329, 736 S.E.2d at 907. Gulotta
indicated that he “look[ed] up” Ronald Benjamin in a police database, and he confirmed that he
“[found] out” who Ronald Benjamin was, but Gulotta did not convey that he found out anything
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about Ronald Benjamin by means of the police database.5 He testified, by contrast, that when he
went to what he thought was the workplace of the appellant, Harold Benjamin, he encountered
not Harold but Ronald Benjamin.
Next, although Ronald Benjamin might have had an incentive to lie about whether he was
the thief, Sergeant Gulotta did not take his word that the person in the surveillance videos who
had signed his name to the log as Ronald Benjamin was not him. Gulotta met Ronald within
several weeks of a December 2014 theft he was investigating, and Gulotta determined
immediately upon seeing Ronald, using his own senses, that Ronald “[a]bsolutely [did] not”
“match” the person whom Gulotta had seen in the surveillance videos. Cf. id. at 327, 736 S.E.2d
at 906 (naming as a factor in the “substantial guarantees of trustworthiness” test the
“corroboration of accusers’ hearsay by third parties or physical evidence”).
Additionally, Gulotta obtained a photograph of the appellant from Facebook, compared
the photograph to the video surveillance from the VDOT building and “various places,” and
determined that the person in the videos was the appellant. Further, the surveillance video still
photos from the VDOT building on the date of the thefts and the Facebook photo were admitted
into evidence. This permitted the circuit court to independently determine whether the appellant
was the person in the photos, and it is clear from the record that the court did so.
Finally, the appellant, who likely knew whether the challenged statements were true—
i.e., whether Ronald Benjamin was his brother and whether Annette Burwell Benjamin was his
brother’s wife—“fail[ed] to offer contradictory evidence,” which the circuit court was entitled to
consider under another factor of the “substantial guarantees of trustworthiness” test. See id.
5
Additionally, the appellant did not avail himself of the opportunity to inquire about this
possible connection on cross-examination of Gulotta.
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Thus, the only hearsay statements Gulotta obtained from Ronald Benjamin that
incriminated the appellant were Ronald Benjamin’s identifications of Annette Burwell Benjamin
as his wife and the appellant as his brother, and the record contained good cause to admit these
statements in the revocation proceeding without permitting the appellant to cross-examine
Ronald.6
III. CONCLUSION
We hold that, as to the testimony relating to the contents of the telephone records, the
appellant waived any objection and, accordingly, that any error in admitting the records
themselves was harmless. Regarding the challenged testimonial hearsay statements made by the
appellant’s brother, Ronald Benjamin, to Sergeant Gulotta, the record supports a finding either
that the statements, if erroneously admitted, were harmless or that good cause permitted their
admission over the appellant’s due process confrontation objection. Consequently, the
challenged rulings of the circuit court did not constitute reversible error, and we affirm the
court’s decision to revoke his sixteen-year suspended sentences and resuspend twelve years of
those sentences.
Affirmed.
6
In light of this result, we do not address whether, assuming any error, such error was
harmless.
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