COURT OF APPEALS OF VIRGINIA
Present: Judges Russell,* Ortiz and Raphael UNPUBLISHED
Argued at Richmond, Virginia
TREVELL MAURICE SAUL MEMORANDUM OPINION** BY v. Record No. 0636-21-2 JUDGE STUART A. RAPHAEL JULY 5, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY R. Michael McKenney, Judge
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Leanna C. Minix, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Appellant Trevell Maurice Saul challenges the admission of a police report at his
probation-revocation hearing as a violation of his confrontation rights under the Due Process
Clause of the Fourteenth Amendment. He argues that, because the witnesses referenced in that
police report recanted their statements to the police, the report is inherently unreliable and should
have been excluded. Because the trial court did not err in finding the police report reliable
enough to warrant its admission into evidence, we affirm.
BACKGROUND
In 2008, the trial court convicted Saul of three drug-related offenses and imposed a
sentence of five years on each conviction. The court suspended all but two years of that
* Justice Russell participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. sentence, conditioned on both good behavior for twenty years and supervised probation for three
years following Saul’s release from prison.
In April 2021, the trial court entered an order to show cause why Saul’s suspended
sentence should not be revoked for violating the good-behavior condition. Before the revocation
hearing, the Commonwealth filed a “Notice of Intention to Introduce Evidence of Defendant’s
Bad Acts,” detailing the evidence the Commonwealth planned to introduce at the hearing. The
notice identified eight categories of prior bad acts, including evidence that, in 2019, Saul broke
into the residence of Latoya Sydnor and assaulted Angel Bromley (the mother of Saul’s child)
and Lakia Bromley (Latoya’s sister). A detective obtained verbal and written statements from
the three women. The report also noted physical signs of assault on Angel Bromley. The report
included two photographs of the victims and descriptions of what the detective saw and how the
investigation proceeded. After Saul was charged, however, the three women recanted their
statements and the Commonwealth nolle prossed the charges.
At the revocation hearing, over Saul’s objection, the trial court admitted the police report
and the photographs into evidence but did not permit the admission of the witnesses’ statements.
The court considered the trial brief and argument of counsel that the report should be excluded
under Henderson v. Commonwealth, 285 Va. 318 (2013). But the court found the report
admissible (except for the witness’s statements) under Henderson’s “reliability test.”
Other evidence introduced at the revocation hearing included various federal and state
firearms charges against Saul. In particular, the United States District Court for the Eastern
District of Virginia convicted Saul in 2016 of illegally transferring firearms, in violation of
18 U.S.C. § 922(d), imposing a sixty-month sentence. In admitting that conviction over Saul’s
objection, the trial court explained that the conviction was a “significant item because the
conviction itself is the violation of [the] good behavior” condition.
-2- Finding that Saul violated the terms of his probation, the court stated, “Mr. Saul, you’re
in violation because of your conviction.” The trial court was also disturbed by Saul’s other gun
charges, despite that most were nolle prossed. The court revoked Saul’s previously suspended
sentences and re-suspended part of the sentence, leaving Saul with an active sentence of seven
years and nine months of incarceration.
On appeal, Saul challenges only the admission of the police report concerning the 2019
incident with the Bromley women.
ANALYSIS
“[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.” Johnson v. Commonwealth,
296 Va. 266, 274 (2018) (quoting Henderson, 285 Va. at 329). “We ‘view the evidence received
at [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.’”
Id. (quoting Henderson, 285 Va. at 329).
“We review whether the admission of evidence violated the right of confrontation and
‘whether a particular category of proffered evidence is testimonial hearsay’ de novo, but ‘we do
not substitute our judgment for that of the trial court’ in considering discretionary matters.”
Logan v. Commonwealth, 71 Va. App. 568, 574 (citation omitted) (first quoting Cody v.
Commonwealth, 68 Va. App. 638, 658 (2018); then quoting Carter v. Commonwealth, 293 Va.
537, 543 (2017)), aff’d on reh’g en banc, 72 Va. App. 309 (2020). “Regarding discretionary
matters, ‘we consider only whether the record fairly supports the trial court’s action.’” Id.
(quoting Carter, 293 Va. at 543). “[I]n conducting our de novo analysis, this Court ‘is bound by
the trial court’s findings of historical fact unless “plainly wrong” or without evidence to support
-3- them.’” Cody, 68 Va. App. at 656 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198
(1997) (en banc)).
Because a probation-revocation proceeding, like parole revocation, occurs “after a
criminal prosecution has ended in a conviction,” the defendant “is not entitled to the ‘full
panoply’ of constitutional rights to which he was entitled at trial.” Henderson, 285 Va. at 325
(quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). The Sixth Amendment right to
confrontation is “a trial right.” Moses v. Commonwealth, 27 Va. App. 293, 300 (1998) (quoting
Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)). So applying the Confrontation Clause to
post-trial proceedings “is inappropriate.” Jenkins v. Commonwealth, 71 Va. App. 334, 343
(2019) (quoting Moses, 27 Va. App. at 301).
Even so, “a defendant has a limited right of confrontation in criminal sentencing and any
subsequent revocation proceedings under the Due Process Clause.” Id. Hearsay is “frequently
admitted in revocation hearings,” but where it is “testimonial in nature,” it is “subject to the
limited confrontation right provided by the Fourteenth Amendment” and “may be admitted only
when ‘the hearing officer specifically finds good cause for not allowing confrontation.’”
Henderson, 285 Va. at 326 (quoting Morrisey, 408 U.S. at 489).
Henderson recognized two tests for determining good cause for admitting such hearsay:
the “reliability test” and the “balancing test.” Id. at 327. The reliability test “permits admission
of testimonial hearsay in revocation proceedings if it possesses substantial guarantees of
trustworthiness.” Id. Such guarantees include:
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COURT OF APPEALS OF VIRGINIA
Present: Judges Russell,* Ortiz and Raphael UNPUBLISHED
Argued at Richmond, Virginia
TREVELL MAURICE SAUL MEMORANDUM OPINION** BY v. Record No. 0636-21-2 JUDGE STUART A. RAPHAEL JULY 5, 2022 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY R. Michael McKenney, Judge
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Leanna C. Minix, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Appellant Trevell Maurice Saul challenges the admission of a police report at his
probation-revocation hearing as a violation of his confrontation rights under the Due Process
Clause of the Fourteenth Amendment. He argues that, because the witnesses referenced in that
police report recanted their statements to the police, the report is inherently unreliable and should
have been excluded. Because the trial court did not err in finding the police report reliable
enough to warrant its admission into evidence, we affirm.
BACKGROUND
In 2008, the trial court convicted Saul of three drug-related offenses and imposed a
sentence of five years on each conviction. The court suspended all but two years of that
* Justice Russell participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia. ** Pursuant to Code § 17.1-413, this opinion is not designated for publication. sentence, conditioned on both good behavior for twenty years and supervised probation for three
years following Saul’s release from prison.
In April 2021, the trial court entered an order to show cause why Saul’s suspended
sentence should not be revoked for violating the good-behavior condition. Before the revocation
hearing, the Commonwealth filed a “Notice of Intention to Introduce Evidence of Defendant’s
Bad Acts,” detailing the evidence the Commonwealth planned to introduce at the hearing. The
notice identified eight categories of prior bad acts, including evidence that, in 2019, Saul broke
into the residence of Latoya Sydnor and assaulted Angel Bromley (the mother of Saul’s child)
and Lakia Bromley (Latoya’s sister). A detective obtained verbal and written statements from
the three women. The report also noted physical signs of assault on Angel Bromley. The report
included two photographs of the victims and descriptions of what the detective saw and how the
investigation proceeded. After Saul was charged, however, the three women recanted their
statements and the Commonwealth nolle prossed the charges.
At the revocation hearing, over Saul’s objection, the trial court admitted the police report
and the photographs into evidence but did not permit the admission of the witnesses’ statements.
The court considered the trial brief and argument of counsel that the report should be excluded
under Henderson v. Commonwealth, 285 Va. 318 (2013). But the court found the report
admissible (except for the witness’s statements) under Henderson’s “reliability test.”
Other evidence introduced at the revocation hearing included various federal and state
firearms charges against Saul. In particular, the United States District Court for the Eastern
District of Virginia convicted Saul in 2016 of illegally transferring firearms, in violation of
18 U.S.C. § 922(d), imposing a sixty-month sentence. In admitting that conviction over Saul’s
objection, the trial court explained that the conviction was a “significant item because the
conviction itself is the violation of [the] good behavior” condition.
-2- Finding that Saul violated the terms of his probation, the court stated, “Mr. Saul, you’re
in violation because of your conviction.” The trial court was also disturbed by Saul’s other gun
charges, despite that most were nolle prossed. The court revoked Saul’s previously suspended
sentences and re-suspended part of the sentence, leaving Saul with an active sentence of seven
years and nine months of incarceration.
On appeal, Saul challenges only the admission of the police report concerning the 2019
incident with the Bromley women.
ANALYSIS
“[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.” Johnson v. Commonwealth,
296 Va. 266, 274 (2018) (quoting Henderson, 285 Va. at 329). “We ‘view the evidence received
at [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.’”
Id. (quoting Henderson, 285 Va. at 329).
“We review whether the admission of evidence violated the right of confrontation and
‘whether a particular category of proffered evidence is testimonial hearsay’ de novo, but ‘we do
not substitute our judgment for that of the trial court’ in considering discretionary matters.”
Logan v. Commonwealth, 71 Va. App. 568, 574 (citation omitted) (first quoting Cody v.
Commonwealth, 68 Va. App. 638, 658 (2018); then quoting Carter v. Commonwealth, 293 Va.
537, 543 (2017)), aff’d on reh’g en banc, 72 Va. App. 309 (2020). “Regarding discretionary
matters, ‘we consider only whether the record fairly supports the trial court’s action.’” Id.
(quoting Carter, 293 Va. at 543). “[I]n conducting our de novo analysis, this Court ‘is bound by
the trial court’s findings of historical fact unless “plainly wrong” or without evidence to support
-3- them.’” Cody, 68 Va. App. at 656 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198
(1997) (en banc)).
Because a probation-revocation proceeding, like parole revocation, occurs “after a
criminal prosecution has ended in a conviction,” the defendant “is not entitled to the ‘full
panoply’ of constitutional rights to which he was entitled at trial.” Henderson, 285 Va. at 325
(quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). The Sixth Amendment right to
confrontation is “a trial right.” Moses v. Commonwealth, 27 Va. App. 293, 300 (1998) (quoting
Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)). So applying the Confrontation Clause to
post-trial proceedings “is inappropriate.” Jenkins v. Commonwealth, 71 Va. App. 334, 343
(2019) (quoting Moses, 27 Va. App. at 301).
Even so, “a defendant has a limited right of confrontation in criminal sentencing and any
subsequent revocation proceedings under the Due Process Clause.” Id. Hearsay is “frequently
admitted in revocation hearings,” but where it is “testimonial in nature,” it is “subject to the
limited confrontation right provided by the Fourteenth Amendment” and “may be admitted only
when ‘the hearing officer specifically finds good cause for not allowing confrontation.’”
Henderson, 285 Va. at 326 (quoting Morrisey, 408 U.S. at 489).
Henderson recognized two tests for determining good cause for admitting such hearsay:
the “reliability test” and the “balancing test.” Id. at 327. The reliability test “permits admission
of testimonial hearsay in revocation proceedings if it possesses substantial guarantees of
trustworthiness.” Id. Such 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 -4- credibility, and (7) a probationer’s failure to offer contradictory evidence.
Id. (citing Crawford v. Jackson, 323 F.3d 123, 130 (D.C. Cir. 2003)). The balancing test, by
contrast, “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.
Saul argued that, under Henderson’s “reliability test,” the witnesses’ recantations
undermined the reliability of their statements to the officers, which in turn undermined the
reliability of the contested police report. Thus, he argued, the guarantee of trustworthiness of a
“detailed police report” should not apply here.
In applying the reliability test, the trial court partially agreed with Saul’s argument,
excluding the witnesses’ statements but allowing the report itself as a “detailed police report.”
The court also allowed the photographs from the report because they “can’t be recanted, they are
what . . . the officer saw.” Thus the court found that the admitted portions of the police report
were reliable.
Reviewing the due process challenge de novo, we find no error in the trial court’s
analysis. The exhibit is a first-hand account from the investigating officer of what he saw and
did in making his investigation, and not a “mere summar[y] of such reports by probation
officers.” Henderson, 285 Va. at 327. The report, separate from the witnesses’ statements,
contains many details. The officer noted that there was a hole in the sheet rock and a screen door
was damaged where Saul had reportedly scuffled with the Bromley women. That was
corroborated by photographs of the screen door and an interior wall. The officer also recorded
the injuries he observed on the women’s bodies, including such detail as “2 scratches above [one
victim’s] right breast and a welp with a scratch on her forehead.” Again, these observations were
corroborated by photographs of the injuries. The report is “quite detailed,” providing adequate
“indicia of reliability.” See Crawford, 323 F.3d at 130. The photographs included with the -5- report also provide “internal corroboration” of the reported events. See id. As a “detailed police
report,” the report and its photographs satisfy the “reliability test” in Henderson. 285 Va. at 327;
see also Saunders v. Commonwealth, 62 Va. App. 793, 809-10 (2014) (“Evidence consisting of
‘a report from one social worker, a government official, to another’ is evidence of reliability and
possesses ‘substantial guarantees of trustworthiness.’” (quoting Henderson, 285 Va. at 327)).
Because we find that the police report satisfies the reliability test, we need not reach
whether the report was also admissible under the balancing test. As Henderson made clear, the
trial court “may apply either test, as may be most appropriate in the circumstances.” 285 Va. at
328 (emphasis added); id. at 331-32 (Lacy, S.J., concurring) (agreeing that a trial court may
apply “either a reliability test or a balancing test”). Resolving this appeal based on the reliability
test is thus “the best and narrowest grounds” for the decision. Esposito v. Va. State Police, 74
Va. App. 130, 134 (2022).
Finally, like the defendant in Crawford, Saul “failed to show any prejudice” from his
inability to cross-examine the investigating officer who authored the report. 323 F.3d at 131.
Indeed, it does not appear that the trial court even relied on the police report in revoking Saul’s
suspended sentence. The court said that it found Saul in violation of his probation because of his
conviction for the federal firearms offense, evidence introduced at the revocation hearing without
objection from Saul.
CONCLUSION
We find no reversible error in the trial court’s decision to admit the police report, and the
trial court, therefore, did not err in revoking Saul’s previously suspended sentence and
re-suspending part of his sentence.
Affirmed.
-6-