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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Court of Appeals Sends 2021 Out with More of a Whimper than a Bang

With only one published opinion today and nary an unpublished opinion, the Court of Appeals of Virginia is sending 2021 out with more of a whimper than a bang.  Even the one opinion, Kionne L. Pulley v. Commonwealth, does not deal with any new or earthshattering issues.

Mr. Pulley was imprisoned in the Augusta Correctional Center and was permitted to make phone calls including several made to Cherie Kemper.  Now, for those who may not be aware of it, corrections officers and law enforcement are permitted to listen in on all phone conversations made by inmates unless it is to an attorney.  Inmates should certainly be aware of this as there are warning on the walls saying that their calls will be monitored.  Nonetheless, Mr. Pulley discussed with Ms. Kemper in (barely) coded language the acquisition of contraband and a plan to deliver it to the prison when she next visited.  Although the opinion does not expressly say so, from the context that the particular officers listening in on these calls were investigating suspected trafficking of narcotics in the prison, one can guess that this was not the first time Mr. Pulley and Ms. Kemper had made such arrangements — particularly as Mr. Pulley was giving her instructions that suggested she had previously performed a less than stellar job as a smuggler.

In any event, after a search of Kemper’s abode where the drugs were found, Mr. Pulley chivalrously offered to shoulder the full blame, say that e was the one that “arranged for the drugs” and he would “take full responsibility.” He explained that Kemper had kids, and he did not want her to get in trouble.

Despite his noble intentions, Mr. Pulley was not above “objecting to nearly all of the Commonwealth’s evidence.”  As relevant to the appeal, he objected that use of statements made during the monitored phone calls violated both hearsay and his right to confront a witness (Kemper) against him.  The circuit court overruled these objections, finding that the evidence was admissible to prove the existence of a conspiracy, provided that the Commonwealth could connect the specific statements to actions in furtherance of that conspiracy.  The court further ruled that the statements were not testimonial in nature and, thus, not subject to confrontation.

On appeal, Pulley argued that the Commonwealth failed to prove the existence of the conspiracy by independent evidence and, thus, Kemper’s statements were not admissible.  The Court of Appeals notes that where evidence of a conspiracy includes statements that would otherwise be hearsay, the order of presentation of the evidence is within the discretion of the prosecution and, so long as there is independent prima facie evidence of the conspiracy, admission of a co-conspirator’s out-of-court statements is permissible.  Here, although the hearsay explained the context of other actions taken by the conspirators, it was not the sole evidence of the conspiracy, and that additional evidence was sufficient to establish the requisite prima facie case.

The Court also rejects Pulley’s assertion that the recorded conversations were testimonial because they were created with the intention that they would be used at trial.  There is a distinction between evidence in the form of spoken or written words collected for the purpose of use at trial and “testimonial” statements.  Here, even though the parties should have known that the statements were being recorded and could be used against them, they did not amount to testimonial statements and, thus, there was no right to confront the declarant.

Pulley also challenged the sufficiency of the evidence, contending that the evidence failed to show that he attempted to obtain the specific drug found in Kemper’s residence rather than some other contraband or possibly an “innocent item” or that his intent was to distribute the drugs rather than use them for his own recreation.  Naturally, these arguments fail because on appeal the evidence is viewed in the light most favorable to the Commonwealth with all reasonable inferences to be granted therefrom — and here the inferences we very reasonable.  A third sufficiency argument was found to be barred by Rule 5A:18.

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