PRESENT: All the Justices

LEE ALDEN MOONEY
                                                             OPINION BY
v. Record No. 181164                               JUSTICE STEPHEN R. McCULLOUGH
                                                             June 27, 2019
COMMONWEALTH OF VIRGINIA


                      FROM THE COURT OF APPEALS OF VIRGINIA


       Lee Alden Mooney challenges a proffer of evidence made at his probation revocation

hearing. According to the prosecutor, this proffer quoted testimony from a newspaper article.

The article detailed testimony from a victim of Mooney’s crimes. The article was never admitted

into evidence. Mooney contends that this proffer violated his due process rights. We assume,

without deciding, that the proffer was in error but hold that any error was harmless on the facts

of this case. Therefore, we will affirm the judgment of the Court of Appeals of Virginia.

                                        BACKGROUND

       In 2007, Mooney was convicted of two counts of grand larceny. The court imposed a

10-year sentence but suspended all but two months of the sentence. He was again convicted of

grand larceny in 2011. He was sentenced on that conviction to serve five years, with four years

and six months suspended. In 2016, Mooney was convicted in another jurisdiction of abduction

by force/intimidation, assault and battery of a family member, third offense, and strangulation

resulting in wound/bodily injury. Based on those new convictions, the court issued an order to

show cause why the previously suspended sentences should not be revoked.

       At the hearing, Mooney acknowledged that he was convicted of those new felonies. The

prosecution noted that the crimes occurred after Mooney’s “most recent release from

incarceration from his last probation violation.” Over Mooney’s objection, the prosecutor read
the following from a “newspaper article” that contained “quotations from [the victim’s]

testimony”:

               as we were about to go to sleep, I looked at my tablet and saw Mr.
               Mooney’s Facebook page was on it. He was having conversations
               with ex-girlfriends. I gently woke him up and told him I didn’t
               want to be with him anymore. That’s when he got angry and went
               into a rage. He told me that I wasn’t going anywhere and this is
               not my first kidnapping. I could not go anywhere. He would use
               his body to block my movement everywhere I went. He put his
               hands around my neck and lifted me up. I couldn’t breathe, and he
               said that he didn’t care. There were times when he asked me for
               forgiveness and times he would become violent again. He would
               head-butt me, slap my legs and my ankles. I played along because
               I thought I was going to die. I was in survival mode.

The prosecutor further stated:

               the entire incident happened over the course of about seven hours
               and ended when he passed out and she was able to leave the
               residence. The judge found him guilty and sentenced him to the, I
               believe, it’s the total sentence, 10 years active for these crimes,
               but, you know, obviously, you know, his comments during the
               sentencing was the victim couldn’t even go to the bathroom
               without this man looking over her shoulder, the one thing that
               showed me that this was an abduction was when the victim
               managed to get away, that the defendant climbed through the
               window, this was an assault that occurred a number of times
               throughout that night.

       The court overruled Mooney’s objection to this proffer, stating “this is a show cause

proceeding and hearsay is allowed.” The newspaper article was not admitted into evidence and

is not in the record. The court found Mooney in violation of the terms of his suspended

sentences and revoked 11 years and 19 months of his suspended sentences, but then

re-suspended all but three years.

       On appeal, the Court of Appeals affirmed the trial court’s ruling, holding that the proffer

did not violate Mooney’s due process rights because the newspaper article from which the




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prosecutor quoted was not testimonial hearsay. Mooney v. Commonwealth, 69 Va. App. 199,

204 (2018).

                                           ANALYSIS

       Constitutional error can generally be subject to harmless error analysis, Foltz v.

Commonwealth, 284 Va. 467, 472 (2012), and that includes a claim that due process was

violated at a revocation proceeding. See, e.g., United States v. Verduzco, 330 F.3d 1182, 1184

(9th Cir. 2003) (“A due process violation at a revocation proceeding is subject

to harmless error analysis.”) (internal quotation marks and citations omitted). The standard for

an alleged constitutional error is whether the error was harmless beyond a reasonable doubt.

Commonwealth v. White, 293 Va. 411, 421 (2017).

       The most salient fact is that, as Mooney conceded, he was convicted of three major

violent new felonies: abduction, strangulation, and assault and battery on a family member, third

offense. Thus, he was unquestionably in violation of the terms of his probation. Before that

latest violation, Mooney had been found to have violated the terms of his probation on six prior

occasions over a seven-year period – October 15, 2008, October 7, 2009, July 7, 2010, July 16,

2012, August 20, 2012, and November 30, 2015 – which suggests a less than optimal adjustment

to probation.

       Mooney contends that the newspaper article “fed the Commonwealth’s argument of the

egregious nature of Mooney’s recent conviction” and was “the only evidence of an aggravating

or egregious nature.” Mooney Br. pp. 7, 24. We find this argument unpersuasive. The trial

court knew from the major violation report about Mooney’s new convictions. The violent nature

of Mooney’s convictions for abduction by force/intimidation, assault and battery of a




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family member, third offense, and strangulation resulting in wound/bodily injury is readily

apparent.

       Although Mooney argues that the proffer of the contents of the newspaper article might

have affected the duration of his revoked suspended sentence, the trial court ordered Mooney to

serve only three years of the remaining twelve years and seven months. As the Commonwealth

notes, this sentence was both below the prosecutor’s recommendation and is nine years and

seven months less than the maximum sentence Mooney could have received. Mooney also has a

lengthy criminal record: he was convicted of assault in 1994, 1998, 1999, and 2003, and

domestic assault in 1994. He was also convicted of stalking in 1994 and again in 2003. The

prosecutor noted that after being placed on probation with good behavior restrictions in 2007 as a

result of his plea regarding the two aforementioned grand larceny charges, Mooney managed to

accumulate 18 new convictions, which include domestic assault in 2014 and domestic assault in

2015. Finally, the court did not indicate that its decision to revoke Mooney’s probation was

based on anything other than the fact that Mooney received new convictions.

       This combination of circumstances leads us to conclude that any alleged error in allowing

the prosecutor to read from the newspaper article was harmless beyond a reasonable doubt.

                                         CONCLUSION

       We will affirm the judgment of the Court of Appeals.

                                                                                           Affirmed.


JUSTICE GOODWYN, joined by JUSTICE MIMS and JUSTICE POWELL, dissenting.

       I respectfully dissent. I believe the circuit court erred in admitting into evidence the

proffered statement from an unidentified newspaper, and I do not believe that such error was

harmless beyond a reasonable doubt.



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       At a probation violation hearing, a probationer is not entitled to the “full panoply” of

constitutional rights to which he was entitled at trial. Henderson v. Commonwealth, 285 Va.

318, 325 (2013). The Sixth Amendment’s right of confrontation applies only in criminal trials,

while a more limited right of confrontation applies in probation revocation proceedings under the

Due Process Clause of the Fourteenth Amendment of the United States Constitution. Id. at 325-

26. These “minimum requirements of due process” in probation violation proceedings include

“the right to confront and cross-examine adverse witnesses (unless the hearing officer

specifically finds good cause for not allowing confrontation).” Id. at 326 (emphasis added)

(citation and internal quotation marks omitted).

       Consistent with the limited confrontation rights afforded a probationer, “[h]earsay is

frequently admitted” during a probation revocation proceeding, including “letters, affidavits, and

other material that would not be admissible in an adversary criminal trial.” Id. Admission into

evidence of testimonial hearsay, however, conflicts with a defendant’s right to confront and

cross-examine adverse witnesses. Id.

       A statement intended to bear witness against the accused is testimonial. Crawford

v. Washington, 541 U.S. 36, 51 (2004) (citation and internal quotation marks omitted).

“Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68

(emphases added). The right of confrontation is not satisfied by one witness testifying about

“another’s testimonial statements.” Bullcoming v. New Mexico, 564 U.S. 647, 662 (2011); see

also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1 (2009). The allegedly quoted

testimony, of a witness at a previous trial, as recounted by the unidentified newspaper and read




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into evidence by the Commonwealth, was testimonial hearsay. Mooney objected to the

admission of that evidence.

       Upon a properly raised objection, the government bears the burden of proving that its

evidence does not violate a defendant’s right of confrontation. See Melendez-Diaz, 557 U.S. at

324 (“[T]he Confrontation Clause imposes a burden on the prosecution to present its witnesses,

not on the defendant to bring those adverse witnesses into court.”); United States v. Jackson, 636

F.3d 687, 695 & n.4 (5th Cir. 2011) (“It is the government’s burden to show the admissibility of

its evidence. Similarly, the government bears the burden of defeating [the defendant’s] properly

raised Confrontation Clause objection.”); see also Bullcoming, 564 U.S. at 666 (noting the

prosecution bears the burden of proving its evidence complies with the Sixth Amendment’s

Confrontation Clause).

       The circuit court incorrectly ruled that hearsay is always admissible during probation

revocation hearings. It did not consider or determine whether the quoted trial testimony was

testimonial hearsay, nor consider whether there was good cause for not allowing confrontation.

       We have previously determined that testimonial hearsay “may be admitted only when the

hearing officer finds good cause for not allowing confrontation.” Henderson, 285 Va. at 326

(emphasis added). Further, we have stated that in admitting testimonial hearsay at a revocation

proceeding, “the trial court . . . should state for the record the specific grounds upon which the

court has relied for ‘not allowing confrontation.’” Id. at 326-27 (emphasis added). The circuit

court failed to do so in this case. Accordingly, the circuit court erred when it permitted the

Commonwealth to recite into evidence purported prior testimony restated from an unidentified

newspaper article, without finding good cause for not allowing confrontation.




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       Two tests have emerged for determining whether there is good cause to deny the right of

confrontation in a revocation proceeding: the balancing test and the reliability test. Id. at 327.

Under the balancing test, the court weighs “the interests of the defendant in cross-examining his

accusers against the interest of the prosecution in denying confrontation.” Id. at 327-28. Under

the reliability test, the court may admit the evidence if it “possesses substantial guarantees of

trustworthiness.” Id. at 327 (citation and internal quotation marks omitted).

       In this instance, the record indicates the wisdom of the requirements stated in Henderson.

A review of the record in this case reveals that the Commonwealth did not express any interest of

the prosecution in denying confrontation. Also, the Commonwealth stated that it was reading

testimony of a witness as recounted in a newspaper article about Mooney’s criminal trial, but did

not state which newspaper, the title or purpose of the article, or admit the article into evidence.

There is no proffered evidence in the record concerning the reliability of the purported

newspaper article or of the allegedly quoted testimonial evidence contained in the newspaper

article, nor is there any evidence that would have allowed the circuit court to balance the

interests of the defendant’s right to confrontation against the prosecution’s interest in denying

that confrontation.

       In argument prior to sentencing, the Commonwealth emphasized the weight of the

evidence from the newspaper article, calling the current offense egregious and horrific, one from

which the victim was lucky to have survived. Although Mooney did not contest the fact of his

new convictions, he disputed some of the purported testimony read by the Commonwealth.

       All “error will be presumed to be prejudicial unless it plainly appears that it could not

have affected the result.” Caldwell v. Commonwealth, 221 Va. 291, 296 (1980). The admission

of the material purportedly quoted from the article was error and not harmless “because we




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cannot ascertain from the record the extent, if any, to which the error may have contributed to the

punishment imposed.” Turner v. Commonwealth, 278 Va. 739, 744 (2009) (ruling that the

admission of inadmissible evidence in a revocation proceeding was not harmless, despite the

additional evidence the court had to support its revocation decision). Despite the perceived

reasonableness of the sentence imposed, it is not clear beyond a reasonable doubt that the circuit

court did not consider the testimonial hearsay evidence in determining Mooney’s punishment,

and that the circuit court may have revoked less of the defendant’s suspended sentences had the

statements not been admitted into evidence.

       Accordingly, I would vacate the judgment and remand the case to the circuit court for a

new sentencing hearing.




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