                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner
PUBLISHED


            Argued at Salem, Virginia


            WAYLON ALLEN COX
                                                                                 OPINION BY
            v.     Record No. 1871-14-3                                   CHIEF JUDGE GLEN A. HUFF
                                                                              DECEMBER 1, 2015
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF PULASKI COUNTY
                                           Marcus H. Long, Jr., Judge

                           Zachary Lawrence MacDonald, Third Year Law Student (Jeffrey
                           H. Geiger; Sands Anderson, P.C., on briefs), for appellant.

                           Leah A. Darron, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Waylon Allen Cox (“appellant”) appeals an order of the Pulaski County Circuit Court

            (“trial court”) revoking his previously suspended sentences for convictions obtained in 2004.

            Following the revocation proceeding, the trial court revoked and resuspended the balance of

            appellant’s remaining sentences, with the exception of seven years and nine months, which

            appellant was ordered to actively serve. On appeal, appellant contends that the trial court

            “violated [a]ppellant’s constitutional due process right to confront his accusers by allowing

            hearsay evidence” to be admitted, over his objection, through the probation officer’s testimony

            and the probation report. For the following reasons, this Court reverses the trial court’s ruling

            and remands the case for further proceedings if the Commonwealth be so advised.

                                                   I. BACKGROUND

                   On appeal, “we consider the evidence and all reasonable inferences flowing from that

            evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       On September 15, 2014, appellant appeared before the trial court for a probation violation

proceeding, which arose from alleged breaches of the terms of his suspended sentences which

had been entered in 2004 for convictions of robbery and malicious wounding. Appellant was

charged with having violated his probation by failing to appear for his drug screening on

February 19, 2014, by testing positive for cocaine on January 15, 2014, and on February 11,

2014, and by failing to pay court costs.

       At the hearing, the Commonwealth called probation officer Dana Manns (“Manns”) to

testify as its sole witness. During direct examination, she admitted she did not know appellant.

At the time of the alleged probation violations, appellant had been living in Bassett, Virginia,

under the supervision of the Martinsville probation office. Because appellant was originally

convicted in Pulaski County, however, the probation revocation proceeding was heard in Pulaski

County Circuit Court. For the purposes of the hearing, Manns, a probation officer for Pulaski

County Circuit Court, had been assigned to appellant’s case.

       Over appellant’s objection, the Commonwealth offered into evidence Manns’s testimony

concerning the contents of the probation violation report she received from Thomas E. Bullock,

Jr. (“Bullock”), the Martinsville probation officer who had been supervising appellant’s

probation. Appellant objected to his lack of opportunity to cross-examine Bullock, who

purportedly authored the report,1 as to the allegations contained in the report and as to the




       1
           The report was signed by Manns on behalf of Bullock.
                                                -2-
validity of the January and February tests for cocaine. Specifically, appellant argued that the

evidence, including the results of the drug tests, was testimonial hearsay and although not subject

to Sixth Amendment protections, its admission would violate appellant’s Fourteenth Amendment

right to due process. In response, the Commonwealth argued that appellant had received the

probation revocation report in February 2014, which gave appellant ample notice of the charges

and evidence against him. As such, the Commonwealth submitted that under Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009), if appellant disputed the contents of the report, appellant

should have objected in writing in advance of the probation hearing.2 The trial court ruled in

favor of the Commonwealth and allowed Manns to testify to the contents of the report.

Specifically, the court reasoned “[w]ell this is a probation violation and this is very customary

that the reports come from another jurisdiction and hearsay rules are greatly relaxed.” The report

itself was also admitted into evidence over appellant’s objection.

       This appeal followed.

                                  II. STANDARD OF REVIEW

       “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




       2
          Although this argument is not raised on appeal, it is worth noting that the safeguards
recognized in Melendez-Diaz for “notice-and-demand” statutes, such as Code § 19.2-187.1, are
only applicable to the prosecutor’s “intent to use an analyst’s report as evidence at trial.” 557
U.S. at 326. Although the statute applies to ballistics certificates, blood-alcohol analysis
certificates, and drug analysis certificates, it has not been held to apply to probation violation
reports. Dunn v. Commonwealth, 20 Va. App. 217, 220, 456 S.E.2d 135, 136 (1995) (“Code
§ 19.2-187 permits the Commonwealth to introduce into evidence at trial a certificate of analysis
‘of a person performing an analysis or examination, performed in any laboratory operated by . . .
the Division of Forensic Science.’”).
                                                 -3-
discretion.’” Henderson v. Commonwealth, 285 Va. 318, 329, 736 S.E.2d 901, 907 (2013)

(quoting Beck v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905 (1997)). A higher

standard is applied, however, in the context of alleged violations of constitutional rights.

“[W]hether 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.” Id. (citing Volkswagen of

Am., Inc. v. Smit, 279 Va. 327, 335, 689 S.E.2d 679, 684 (2010)).

                                          III. ANALYSIS

       On appeal, appellant contends that the trial court erred when it “allow[ed] hearsay

evidence over the objection of [a]ppellant’s counsel.” Specifically, appellant argues the

probation violation report is testimonial and its contents are therefore subject to his Fourteenth

Amendment right to confrontation, unless good cause is shown. Appellant maintains that

because the trial court failed to make a finding of good cause, this Court must conduct a de novo

review of the record, and further contends that such a review will fail to substantiate the

necessary finding of good cause.

       In response, the Commonwealth argues that appellant’s assignment of error has been

waived under Rule 5A:18 because appellant either failed to sufficiently state his objection during

the probation hearing or waived his objection on cross-examination. On the merits, the

Commonwealth argues the report was admissible because of its reliability.

                                          A. Rule 5A:18

                                   1. Preservation of Objection

       On the issue of preservation, the Commonwealth argues that “Henderson makes clear that

a defendant must not only object on due process confrontation grounds but when overruled, ask

the trial court to state on the record the specific ground upon which the court has relied for not

allowing confrontation.” Appellee’s Br. at 11-12 (emphasis added). Because appellant only
                                                -4-
objected to his lack of confrontation but did not further ask the court to state its grounds for

overruling the objection, the Commonwealth contends appellant’s objection was not preserved.

       Appellant counters that the objection was preserved. Specifically, he contends that the

purpose behind the rule requiring contemporaneous objection is “so that the trial court has ‘an

opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and

reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189 (2010) (citing

West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)). During the

revocation hearing, appellant’s counsel objected to the hearsay testimony proffered by the

Commonwealth and elaborated,

               [The defendant] still has a right to cross examine, to due process
               right, and from the report we have, we have no idea about the –
               who did the test, what test was used, whether a chance – custody
               was maintained, you know, we just don’t have any testimony
               here. . . . [W]hen he is up for revocation hearing and he has this
               much time hanging over his head, I submit that the
               Commonwealth’s Attorney has an obligation to come forth with
               testimony that is subject to cross examination I would think.

Thereafter defense counsel specifically referenced the holdings of Henderson and

Melendez-Diaz in support of appellant’s right to confrontation.

       On this record, we find that the trial court and counsel for the Commonwealth were

adequately informed of the grounds for appellant’s objections and the purpose of Rule 5A:18

was satisfied; therefore, the error assigned was sufficiently preserved at the revocation hearing.

The Henderson Court made a distinction between objecting to a trial court’s failure to state its

findings and objecting to a lack of good cause. Henderson, 285 Va. at 325, 736 S.E.2d at 905.

In Henderson, the Court first declined to address whether the trial court “had a duty to state for

the record the specific ‘good cause’ it found” because this issue had not been properly preserved.

Id.


                                                -5-
          Nonetheless, the Court went on to review the record to determine whether “good cause”

did exist. Id. Accordingly, violating the limited right to confrontation afforded in revocation

hearings was deemed distinct from failing to articulate the good cause basis for allowing hearsay

evidence. In the case at bar, appellant has not assigned error to the trial court’s failure to state its

grounds for the record, but has assigned error to the violation of his right to confrontation.

          Furthermore, Rule 5A:18 provides, in part, that in order to preserve an issue for appeal,

“an objection [must be] stated with reasonable certainty at the time of the ruling.” (Emphasis

added).

                 The purpose of Rule 5A:18 is to “enable the ruling court to take
                 any necessary corrective action,” Saunders v. Commonwealth, 38
                 Va. App. 192, 195, 562 S.E.2d 367, 369 (2002), and to “rule
                 intelligently on the issues presented,” Weidman v. Babcock, 241
                 Va. 40, 44, 400 S.E.2d 164, 167 (1991).

Johnson v. Commonwealth, 58 Va. App. 303, 314 n.2, 709 S.E.2d 175, 181 n.2 (2011). “[A]

specific, contemporaneous objection gives the opposing party the opportunity to meet the

objection at that stage of the proceeding.” Weidman, 241 Va. at 44, 400 S.E.2d at 167. Where

both appellee and the trial court have been afforded that opportunity, the appellant has

sufficiently preserved his objection for appeal. Id. Moreover, Code § 8.01-384 provides

                 [f]ormal exceptions to rulings or orders of the court shall be
                 unnecessary . . . . [I]t shall be sufficient that a party, at the time the
                 ruling or order of the court is made or sought, makes known to the
                 court the action which he desires the court to take or his objections
                 to the action of the court and his grounds therefor.

(Emphasis added).

          Appellant’s objections at the hearing, asserting his right to confront the witness against

him and contesting the validity of the written report, were sufficiently specific to give the trial

court and the Commonwealth an opportunity to respond to the objection he raises on appeal.

Appellant’s references to Henderson as well as references to his right to cross-examine adverse
                                                    -6-
witnesses and his right to due process, stated, with reasonable certainty, the grounds supporting

his objection at the time of the trial court’s ruling. The Commonwealth and the trial court had

ample opportunity to respond to these grounds and in fact did so. Accordingly, this Court finds

appellant’s assignment of error has been properly preserved.

                                      2. Waiver of Objection

       The Commonwealth alternatively asserts that even if appellant sufficiently preserved his

objection, he subsequently waived his objection by eliciting testimony from Manns about the

report. Specifically, the Commonwealth argues appellant assumed a position inconsistent with

his hearsay objection by cross-examining Manns, establishing that the report stated appellant

completed a treatment program and had been employed for a period during his probation.

       “The rule is that where an accused unsuccessfully objects to evidence which he considers

improper and then on his own behalf introduces evidence of the same character, he thereby

waives his objection, and we cannot reverse for the alleged error.” Saunders v. Commonwealth,

211 Va. 399, 401, 177 S.E.2d 637, 638 (1970) (emphasis added). The Court will not “notice

error which has been invited by the party seeking to take advantage thereof on appeal.” Id. at

400, 177 S.E.2d at 638. Nevertheless, Virginia courts

               have never held that the mere cross-examination of a witness or the
               introduction of rebuttal evidence, either or both, will constitute a
               waiver of an exception to testimony which has been duly taken.
               To constitute such a waiver the party objecting to the evidence
               must have gone further and introduced on his own behalf
               testimony similar to that to which the objection applies.

Culbertson v. Commonwealth, 137 Va. 752, 757, 119 S.E. 87, 88 (1923) (emphasis added).

       In this case, the fact that appellant cross-examined Manns on the contents of the

probation violation report does not constitute a waiver of appellant’s objection to its character as

hearsay and the lack of opportunity to confront the witness against him. Notably, the report was


                                                -7-
introduced by the Commonwealth and not “invited by” the appellant; rather, the report was

admitted over appellant’s objection. Furthermore, appellant did not go “further and introduce[]

on his own behalf” other similar hearsay testimony but was “merely cross-examining” the

witness about the contents of the report. A reading of appellant’s cross-examination reveals his

purpose was to highlight the lack of Manns’s personal knowledge—the very basis for appellant’s

original objection—by asking certain questions such as “And of course you have no knowledge

about his work or where he was living or anything like that?” and “Do you know if it’s an

in-house program, or anything like that?” This Court, therefore, finds appellant did not waive his

objection to the evidence by cross-examining Manns on the contents of the report.

                              B. Fourteenth Amendment Due Process

        On the merits, appellant claims that the trial court erred in admitting testimonial hearsay

without making the requisite finding of good cause. The Commonwealth argues that although

“[t]he record . . . lacks sufficient information for this Court to” analyze the reliability of the

evidence or balance the interests of the Commonwealth and the appellant, the probation report

was admissible due to its reliability.

        The United States Constitution provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV. Therefore, although

the full Sixth Amendment right to confrontation does not apply outside of a criminal trial, “a

more limited right of confrontation [is] included in the Due Process Clause of the Fourteenth

Amendment, applicable to parole and probation revocation proceedings.” Henderson, 285 Va. at

325-26, 736 S.E.2d at 905. “Society . . . has an interest in not having parole revoked because of

erroneous information or because of an erroneous evaluation of the need to revoke parole, given

the breach of parole conditions.” Morrissey v. Brewer, 408 U.S. 471, 484 (1972). “What is


                                                  -8-
needed is an informal hearing structured to assure that the finding of a parole violation will be

based on verified facts and that the exercise of discretion will be informed by an accurate

knowledge of the parolee’s behavior.” Id.

       Despite the frequent admission of hearsay in revocation hearings, “hearsay that is

testimonial in nature . . . is subject to the limited confrontation right provided by the Fourteenth

Amendment.” Henderson, 285 Va. at 326, 736 S.E.2d at 905. In a probation revocation hearing,

due process requires at a minimum:

               (a) written notice of the claimed violations of parole; (b) disclosure
               to the parolee 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
               parole.

Morrissey, 408 U.S. at 489 (emphasis added); see also Gagnon v. Scarpelli, 411 U.S. 778, 782

(1973). In such hearings, “the trial court, when dispensing with the due process right of

confrontation, should state for the record the specific grounds upon which the court has relied for

‘not allowing confrontation.’” Id. at 326, 736 S.E.2d at 906. “Such hearsay may be admitted

only when ‘the hearing officer specifically finds good cause for not allowing confrontation.’” Id.

at 326, 736 S.E.2d at 905 (citing Morrissey, 408 U.S at 489).

       “Two tests have emerged for determining whether the denial of the right to confrontation

. . . will comport with constitutional due process” to support a finding of good cause. Henderson,

285 Va. at 327, 736 S.E.2d at 906. The first is the “reliability test,” in which the hearing officer

may admit testimonial hearsay “if it possesses substantial guarantees of trustworthiness.” Id.

The second, the “balancing test,” “requires the court to weigh the interests of the defendant in


                                                -9-
cross-examining his accusers against the interests of the prosecution in denying confrontation.”

Id. at 327-28, 736 S.E.2d at 906. Either test may be used “as may be most appropriate in the

circumstances.” Id. at 328, 736 S.E.2d at 907.

       In Henderson, the Supreme Court affirmed the trial court, finding there was good cause to

admit the testimonial hearsay during the probation revocation proceeding. 285 Va. at 331, 736

S.E.2d at 908. Over the appellant’s objection on confrontation grounds, the trial court permitted

the sole witness for the Commonwealth, a detective who was not the appellant’s probation

officer, to testify to statements witnesses made to her regarding offenses appellant had

committed that violated his probation terms. Id. at 322, 736 S.E.2d at 903. Notably, the trial

court did not state a reason for overruling the appellant’s objections. Id. at 324, 736 S.E.2d at

904. On appeal, the Supreme Court found that although the trial court did not specifically state a

finding of good cause on the record, this finding could be inferred “simply from the fact that

[appellant’s] objections on hearsay and confrontation grounds were overruled.” Id. at 326,

736 S.E.2d at 905. In effect, the trial court’s silence “as to any ground upon which the court may

have relied in finding good cause” allowed the Supreme Court to “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.’” Id. at 327, 736 S.E.2d at 906.

       In this case, however, we cannot infer the trial court was relying upon good cause when it

admitted the probation violation report. In contrast to the trial court’s silence in Henderson, the

trial court in this case stated its reason for overruling appellant’s objection and admitting the

report. Instead of “specifically find[ing] good cause,” the court articulated that it was denying

appellant’s right to confrontation because “this is a probation violation and this is very customary

that the reports come from another jurisdiction.” This stated reason dispels any notion that the

trial court made a ruling based upon “good cause.” Neither was any basis shown in the record
                                                - 10 -
for an implied finding that the report contained substantial guaranties of trustworthiness or a

finding that the interests of the Commonwealth outweighed the rights of appellant. In fact, as the

Commonwealth conceded on brief, “[t]he record does not contain a reliability or balancing

analysis as discussed in Henderson . . . . The record contains no proffer and lacks sufficient

information for this Court to conduct such an analysis.”3 Appellee’s Br. at 14 (emphasis added).

Therefore, the trial court erred when it admitted Manns’s testimony and the probation violation

report over appellant’s objection without good cause. As reasoned by the United States Supreme

Court in Melendez-Diaz, “[t]he Confrontation Clause—like those other constitutional

provisions—is binding, and we may not disregard it at our convenience.” 557 U.S. at 325

(emphasis added).

       Having concluded that the evidence was admitted erroneously, this Court must now

determine whether that error was harmless. Code § 8.01-678; Walker v. Commonwealth, 144

Va. 648, 652, 131 S.E. 230, 231 (1926) (“[The harmless error statute] puts a limitation on the

powers of this court to reverse the judgment of the trial court — a limitation which we must

consider on every application for an appeal and on the hearing of every case submitted to our

judgment.”). Given that Manns’s testimony and the probation report were the only evidence

submitted against appellant, they necessarily “influenced the [factfinder]” in reaching its verdict.

Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). Therefore, the




       3
         Although this Court is not bound by concessions of law made by either party, Wright v.
Commonwealth, 278 Va. 754, 760 n.3, 685 S.E.2d 655, 658 n.3 (2009), this concession is worth
noting considering the ultimate burden of proof for a probation violation, and consequently a
showing of good cause for denying confrontation, remains with the Commonwealth, the party
seeking judgment. See United Dentists, Inc. v. Commonwealth, 162 Va. 347, 355, 173 S.E. 508,
511 (1934) (“[H]e has the burden of proof who seeks to move the court to act in his favor.”);
Good v. Dyer, 137 Va. 114, 131, 119 S.E. 277, 281 (1923) (“The party who maintains the
affirmative of an issue carries the burden of proof through the whole case.”).
                                               - 11 -
requirements of Code § 8.01-678, that appellant has had “a fair trial on the merits and [that]

substantial justice has been reached,” have not been satisfied. Accordingly, this Court finds the

error was not harmless.

                                       IV. CONCLUSION

       For the foregoing reasons, this Court reverses the ruling of the trial court because

appellant’s right to due process under the Fourteenth Amendment to the United States

Constitution was violated, and remands for further proceedings if the Commonwealth be so

advised.

                                                                          Reversed and remanded.




                                               - 12 -
Humphreys, J., concurring.

       I join entirely in the analysis and judgment of my colleagues in this case based upon our

Supreme Court’s decision in Henderson v. Commonwealth, 285 Va. 318, 736 S.E.2d 901 (2013).

I certainly agree that the circuit court’s articulation “that it was denying appellant’s right to

confrontation because ‘this is a probation violation and this is very customary that the reports

come from another jurisdiction . . . ,’ dispels any notion that the [circuit] court made a ruling

based upon whether ‘good cause’” existed to deny the right of confrontation. Therefore, I agree

that we must remand to the circuit court for a new hearing, and, if necessary, a determination of

[whether] “good cause” exists to deny Cox’s right to confront the accusing probation officer.

       The Supreme Court of the United States has yet to review either the “reliability test” or

the “balancing test” used in the Commonwealth to determine whether “good cause” exists. I

write separately to reiterate my position that a reliability test to establish “good cause” for

denying the right of confrontation in a probation violation hearing is constitutionally problematic

in the wake of Crawford v. Washington, 541 U.S. 36 (2004), and its progeny, and that the courts

of the Commonwealth should adopt a test that is more consistent with the current jurisprudence

of the Confrontation Clause of the Sixth Amendment to determine when “good cause” exists for

excusing the prosecution from producing probation violation witnesses for cross-examination.4




       4
           Under the balancing test,

                 [t]he weight to be given the right to confrontation in a particular
                 case depends on two primary factors: the importance of the hearsay
                 evidence to the court’s ultimate finding and the nature of the facts
                 to be proven by the hearsay evidence. . . . [T]he more significant
                 particular evidence is to a finding, the more important it is that the
                 [probationer] be given an opportunity to demonstrate that the
                 proffered evidence does not reflect “verified fact.”
                                                 - 13 -
See Henderson v. Commonwealth, 59 Va. App. 641, 668, 722 S.E.2d 275, 289 (2012)

(Humphreys, J., dissenting), aff’d, 285 Va. 318, 736 S.E.2d 901 (2013). I recognize that our

Supreme Court in Henderson has permitted the use of either test in establishing whether “good

cause” exists for denying the due process right to confront an accuser in a probation revocation

hearing. While I acknowledge that Henderson is binding on us in this case, I remain convinced

that Henderson was wrongly decided to the extent that reliability has any remaining application

to the issue of confrontation in light of the Supreme Court’s overruling of Ohio v. Roberts, 448

U.S. 56 (1980), and its progeny, such as Lilly v. Virginia, 527 U.S. 116, 134 (1999), by

Crawford.

       I realize that Crawford focuses on the Sixth Amendment right to confrontation.

“Nevertheless, the Fourteenth Amendment’s due process protections include a right to

confrontation in revocation hearings that the courts of the Commonwealth must protect and we

should provide some direction to the circuit courts of the methodology for doing so.”

Henderson, 59 Va. App. at 680-81, 722 S.E.2d at 295 (Humphreys, J., dissenting); see Morrissey

v. Brewer, 408 U.S. 471, 480 (1972). In Crawford and the several Sixth Amendment cases that

followed it, the Supreme Court clearly and emphatically shifted away from using reliability as a

factor in any Sixth Amendment Confrontation Clause analysis. In my view, the Supreme Court

of the United States could not be clearer when it wrote,

               [a]dmitting statements deemed reliable by a judge is fundamentally
               at odds with the right of confrontation. To be sure, the Clause’s
               ultimate goal is to ensure reliability of evidence, but it is a
               procedural rather than a substantive guarantee. It commands, not
               that evidence be reliable, but that reliability be assessed in a
               particular manner: by testing in the crucible of cross-examination.



Henderson v. Commonwealth, 59 Va. App. 641, 678, 722 S.E.2d 275, 294 (2012) (Humphreys,
J., dissenting) (internal quotations omitted).
                                              - 14 -
               The Clause thus reflects a judgment, not only about the desirability
               of reliable evidence (a point on which there could be little dissent),
               but about how reliability can best be determined.

Crawford, 541 U.S. at 61 (emphasis added).

       Thus, if “reliability” no longer has any place in a Sixth Amendment Confrontation Clause

inquiry, I continue to fail to see how it could retain any vitality in its separate and diluted due

process guise. See Henderson, 59 Va. App. at 681, 722 S.E.2d at 295 (Humphreys, J.,

dissenting).




                                                - 15 -
