THE CIRCUIT COURT OF LOUDOUN COUNTY Jeanette A. Irby, Judge
Downing (King Downing PLC, on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Judge Huff, Judges Humphreys and O'Brien Argued at
J. HUMPHREYS, JUDGE
Kevin Cody ("Cody") was convicted on February 16,
2017, in the Circuit Court of Loudoun County (the
"circuit court") for strangulation of another to
cause wounding or injury, in violation of Code §
18.2-51.6, assault and battery of a family member, in
violation of Code § 18.2-57.2, and five counts of
violation of a protective order, in violation of Code §
16.1-253.2. The circuit court granted the Commonwealth's
motion to admit out-of-court statements of Rebekka Weingarten
("Weingarten") over the objection of Cody that
doing so violated his Sixth Amendment right to confront the
witnesses against him. In doing so, the circuit court applied
the doctrine of forfeiture by wrongdoing, finding that the
Commonwealth proved "by a preponderance of the evidence
that [Weingarten was] unavailable as a witness and that
[Cody] intended to, and did, by his wrongdoing, procure her
unavailability." Cody appeals this decision and argues
that the trial court erred in finding that he intended to and
did procure the unavailability of Weingarten thereby
forfeiting his right to confront her under the Sixth
Amendment because he repeatedly contacted Weingarten in
violation of a then-existing protective order, urged her not
to cooperate with the prosecution, and Weingarten
subsequently invoked her Fifth Amendment privilege and
refused to testify against Cody.
and Weingarten have two young children together and have
lived together for several years. On January 15, 2016, at
approximately 2:00 p.m. and while the children were taking a
nap, Cody and Weingarten had an argument. During the
argument, Cody strangled Weingarten until she lost
consciousness. Cody also punched Weingarten in the chest and
left side, and stepped on her back.
that same day, at approximately 5:00 p.m., Weingarten drove
to the Loudoun County Sheriff's Office. Finding the
office closed, she called 911. During the 911 call which was
recorded and admitted into evidence, Weingarten told the
emergency dispatcher "I'm in the process of leaving
a very dangerous man, and I don't know where to go."
Weingarten stated that she and her children were
"sitting in front of the sheriff's office" and
"I need to report him, I need to find out what I can
do." When asked by the dispatcher "[w]hat do you
mean, you need to report him; what happened?",
I have bruises; he's been kicking me and hitting me, and
he's choked me to the point of passing out, for the
second time in two days. It's just been going on so many
years. I just packed up and left because he's at work
right now. I don't-I don't know what to do.
also told the emergency dispatcher that the incident occurred
at her home and that after "he left . . . I packed the
kids, and I filled-up, and I'm in my car."
Weingarten expressed concern for her children stating,
"I have two small children in the back seat; I
haven't explained anything to them." The emergency
dispatcher told Weingarten to wait at the sheriff's
office and that an officer would meet her there.
after the 911 call, Deputy Sheriff Robert Jacobsen
("Deputy Jacobsen") arrived at the Loudoun County
Sheriff's Office. According to Deputy Jacobsen,
Weingarten was visibly trembling, crying, and "sad and
angry at the same time." As described by Deputy
Jacobsen, Weingarten stated that after she "put her
children down for a nap . . . Cody confronted her about a
consistent on-going issue of his thoughts that she is being
flirtatious and lying at work." At some point during the
conversation, Cody "grabbed [Weingarten] with his hands
around her neck until she passed out." She stated that
Cody continued to hit her once she regained consciousness. At
that time, Cody punched her in the chest. Weingarten also
explained that, at one point, she remembered being on her
hands and knees when Cody punched her in the side and stepped
on her back. Cody then threatened to kill Weingarten, the
children, and himself because of her actions. Weingarten also
reported bruising from a beating and strangulation in the
preceding days, as well as repeated verbal threats to her
life and the children's lives.
observing Weingarten's injuries, which included redness
around her neck and heavy bruising, Deputy Jacobsen asked if
Weingarten would be willing to see a forensic nurse examiner
about her injuries. Deputy Jacobsen subsequently provided her
with the address of Fairfax Inova Hospital (the
"hospital") and followed Weingarten to that
met with Rebecca Bottoms ("Ms. Bottoms"), a
forensic nurse examiner, at the hospital. Ms. Bottoms
examined Weingarten "head-to-toe" to identify and
document her injuries and to determine their seriousness and
possible treatment. Ms. Bottoms then reduced her findings to
a "Medical/Legal Report of Examination for Diagnosis and
Treatment" (the "Medical/Legal report"), which
contained documentation of Weingarten's injuries as
observed and measured by Ms. Bottoms, photographs of the
injuries, and a narrative of the events of January 15, 2016,
as reported by both Deputy Jacobsen and
January 19, 2016, Sergeant Janet Schmidt ("Sergeant
Schmidt"), the domestic violence coordinator for the
Loudoun County Sheriff's Office, met with Weingarten for
a follow-up interview. There, Weingarten recounted the events
of January 15, 2016. Sergeant Schmidt also photographed her
injuries, which included "a lot of yellow bruising on
[Weingarten's] chest." Weingarten indicated that
"she wanted to have this all finished up, so she
wouldn't have to continue looking over her shoulder in
fear of [Cody]" and "at the very least, to keep
[Cody] in jail for a while." Sergeant Schmidt also
listened to a voicemail on Weingarten's cell phone where
Cody threatened suicide. Notably, Weingarten's statements
to Sergeant Schmidt about the events of January 15, 2016, as
testified to by Sergeant Schmidt, mirrored her statements to
Deputy Jacobsen and Ms. Bottoms.
subsequently arrested Cody on warrants alleging strangulation
and domestic assault. The Loudoun County Juvenile and
Domestic Relations District Court (the "J&DR
court") also issued an emergency protective order,
followed by a preliminary protective order (the
"protective order"), which prohibited Cody from
contacting Weingarten. In obtaining the protective order,
Weingarten executed an affidavit in support of her petition
for a preliminary protective order. There, she made
statements under oath which were consistent with her
statements to Deputy Jacobsen, Ms. Bottoms, and Sergeant
the protective order in effect and while he was incarcerated,
Cody made five phone calls to Weingarten. In an attempt to
circumvent the protective order, Cody utilized the inmate
account of "John Halteh, " an inmate incarcerated
in the same pod as Cody. Cody introduced himself as
"John" during each of the five phone calls rather
than by his actual name. All of these calls were recorded by
made his first phone call to Weingarten on January 31, 2016.
Cody repeatedly begged her to forgive him and give him
another chance, to let him come home, to be a family again,
to visit him in jail, to drop the protective order and
charges, and to not help the prosecution or appear in court.
As characterized by the circuit court, Cody was
"emotionally manipulative during those phone
calls." For example, at the outset of the phone
conversation, Cody professed his love for Weingarten and
[Cody]: Listen, I don't care what's happened in the
last two weeks; none of it matters to me. Since I've been
here, I have hit absolute bottom, and I know I can fix it. .
. . I love you as much as I love those kids. And I don't
care what you've done, I don't care what you've
said; it doesn't matter.
however, repeatedly indicated that she did not feel safe with
Cody. She explained to Cody that she went to the police
because she feared for her life. Cody never denied harming
Weingarten. Instead, Cody repeatedly insisted that Weingarten
needed to trust him and stated that he could not help her or
their children in jail. In response, Weingarten stated that
she "couldn't swallow without pain for a week."
the first phone call, Cody also reminded Weingarten that she
once said that their relationship "could be magical; you
were right." Cody repeatedly stated that he loved
Weingarten and their children and emphasized that two weeks
in jail changed his perspective on life.
[Cody]: Listen, . . . it's not even about trust, it's
about-what I have learned is, it is about acceptance;
that's what I've had to learn here more than anything
else: Is, that when it reaches a point where, you know,
things aren't the way I would like them to be, or
perfect, or whatever, it doesn't matter. If I can get to
a point where I can accept progress and better [sic], I'm
. . . .
[Cody]: I can't even explain to you the difference in my
head in here, in over the last two weeks. I am begging you, I
am begging you, let me have one chance.
also stated that he understood that his actions violated the
[Cody]: When I called you tonight, . . . I know that I'm
taking a huge risk by calling you, . . . . If you want to
turn around and turn this into another violation, and say
that I violated the protective order-I don't know if you
dropped it or not you told Dan I could; it's totally up
stated that she was not going to report Cody's phone call
because she "wanted to hear what [Cody] had to
Weingarten stated that she did not intend on giving Cody
another chance, Cody stated "if you don't do it now,
it is going to be over, and it will not be something you can
come back from." After making more promises, Cody
continued to ask for another chance.
[Cody]: I need you to trust me enough to give me one chance.
I have never asked you for a chance before; how many chances
have I given you?
How many times have I put up with your failings; how many
times? Ask me that.
How many times have I lived with absolute torture, because of
things that you knew you were supposed to do, you wanted to
do, and you failed? And how many times did I let you back?
I want you to give me one chance in my entire fucking life;
how is that too much to ask?
And how do you not-at least for the fucking children-how can
you not give them one chance, how can you not give them one
Weingarten stated "[y]ou understand that I can't
undo what I've already done[, ]" Cody suggested that
Weingarten not cooperate with the prosecution and drop the
charges against him.
[Cody]: It doesn't matter; everything can ...