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Cody v. Commonwealth

Court of Appeals of Virginia

April 17, 2018



          Alexis Downing (King Downing PLC, on briefs), for appellant.

          Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Chief Judge Huff, Judges Humphreys and O'Brien Argued at Fredericksburg, Virginia



         Appellant 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.[1]

         I. BACKGROUND

         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.

         Later 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?", Weingarten replied

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.

         She 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.

         Soon 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.

         After 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 location.

         Weingarten 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 Weingarten.[2]

         On 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.

         Officers 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 Schmidt.

         With 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 the jail.

         Cody 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 their children.

[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.

         Weingarten, 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."

         During 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 telling you[.]
. . . .
[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.

         Cody also stated that he understood that his actions violated the protective order.

[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 to you.

         Weingarten stated that she was not going to report Cody's phone call because she "wanted to hear what [Cody] had to say."

         When 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 chance?

         After 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 ...

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