The Virginia Court of Appeals has upheld a Loudoun County Circuit Court conviction in a 2016 domestic assault that set new legal precedent concerning the admission of testimony.
Kevin Cody was convicted last year of strangulation, domestic assault and violating a protective order following the Jan. 16, 2016, assault of his girlfriend.
The case began later that day, when, after Cody left for work, the victim packed up their two children and went to the Sheriff’s Office seeking help. In talking with investigators, medical staff and in testimony in Juvenile and Domestic Relations Court to obtain a restraining order, she provided information about the assault during which she had been choked and beaten, as well as a history of domestic violence in their home.
In violation of the protective order, Cody telephoned the victim five times from jail and, in recorded conversations, pressured the victim to drop the protective order and the charges and to not to testify in the case. Cody was successful and the victim soon retained an attorney and dropped the protective order. In a District Court preliminary hearing, she declined to testify. The felony strangulation charge was dismissed.
Three weeks later, prosecutors presented the case to a grand jury and secured direct indictments for felony strangulation, misdemeanor assault and battery of a family member, and five counts of misdemeanor violation of a protective order. The Commonwealth’s Attorney’s Office continued to prosecute the case over the objections of the victim, who was still not cooperating.
Senior Assistant Commonwealth’s Attorney Don Goodman and Assistant Commonwealth Attorney Josh Steward entered a series of motions under the legal theory of “forfeiture by wrongdoing” aimed at allowing the nurse who examined the victim and Sheriff’s Office investigators to testify about the statements the victim made to them.
Without the victim taking the stand, such remarks typically would be ruled an inadmissible hearsay evidence. But prosecutors argued that Cody had intentionally and wrongfully made the victim unavailable to testify, and under the rules of evidence, forfeited his Sixth Amendment right to confront the statements of that witness.
Circuit Court Judge Jeanette Irby granted Goodman’s motions to allow other witnesses to testify about the victim’s statements.
At trial, Cody was convicted on all charges. He was given an active sentence of two years and 11 months in prison.
Cody appealed the conviction challenging the admission of that testimony, but a three-judge panel of the Court of Appeals upheld Irby’s ruling in an April 17 opinion.
“… [W]e hold that the doctrine of forfeiture by wrongdoing properly applies where a defendant unlawfully contacts a witness with the successful intent to procure that witness’ unavailability, whether such unavailability is the witness’ physical absence from the court or through a witness’ refusal to testify by invoking the Fifth Amendment right to avoid self-incrimination,” according to the ruling. “Here, the record amply supports the circuit court’s finding that Cody intended to and did engage in criminal conduct specifically designed to prevent Weingarten from testifying against him.”
Both Irby and the appeals court cited evidence showing that Cody employed persistence and emotionally manipulative behavior to wear down the victim and convinced her not to cooperate with the prosecution.
Commonwealth’s Attorney Jim Plowman said Goodman and Steward have been at the forefront of this issue and have conducted training for prosecutors statewide on the application of this legal principle.
“Now, the full force of the courts have embraced it in a detailed, published and binding opinion to serve as a guide for future cases,” Plowman stated. “This case has been immediately recognized by prosecutors statewide. I have already received emails from other Commonwealth’s Attorneys from around the state thanking us for this tool that can now be used to convict an abuser who tries to intimidate his victim into silence.”
Read the court’s full opinion here.