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Mooney v. Commonwealth

Supreme Court of Virginia

June 27, 2019





         Lee Alden Mooney challenges a proffer of evidence made at his probation revocation hearing. According to the prosecutor, this proffer quoted testimony from a newspaper article. The article detailed testimony from a victim of Mooney's crimes. The article was never admitted into evidence. Mooney contends that this proffer violated his due process rights. We assume, without deciding, that the proffer was in error but hold that any error was harmless on the facts of this case. Therefore, we will affirm the judgment of the Court of Appeals of Virginia.


         In 2007, Mooney was convicted of two counts of grand larceny. The court imposed a 10-year sentence but suspended all but two months of the sentence. He was again convicted of grand larceny in 2011. He was sentenced on that conviction to serve five years, with four years and six months suspended. In 2016, Mooney was convicted in another jurisdiction of abduction by force/intimidation, assault and battery of a family member, third offense, and strangulation resulting in wound/bodily injury. Based on those new convictions, the court issued an order to show cause why the previously suspended sentences should not be revoked.

         At the hearing, Mooney acknowledged that he was convicted of those new felonies. The prosecution noted that the crimes occurred after Mooney's "most recent release from incarceration from his last probation violation." Over Mooney's objection, the prosecutor read the following from a "newspaper article" that contained "quotations from [the victim's] testimony":

as we were about to go to sleep, I looked at my tablet and saw Mr. Mooney's Facebook page was on it. He was having conversations with ex-girlfriends. I gently woke him up and told him I didn't want to be with him anymore. That's when he got angry and went into a rage. He told me that I wasn't going anywhere and this is not my first kidnapping. I could not go anywhere. He would use his body to block my movement everywhere I went. He put his hands around my neck and lifted me up. I couldn't breathe, and he said that he didn't care. There were times when he asked me for forgiveness and times he would become violent again. He would head-butt me, slap my legs and my ankles. I played along because I thought I was going to die. I was in survival mode.

         The prosecutor further stated:

the entire incident happened over the course of about seven hours and ended when he passed out and she was able to leave the residence. The judge found him guilty and sentenced him to the, I believe, it's the total sentence, 10 years active for these crimes, but, you know, obviously, you know, his comments during the sentencing was the victim couldn't even go to the bathroom without this man looking over her shoulder, the one thing that showed me that this was an abduction was when the victim managed to get away, that the defendant climbed through the window, this was an assault that occurred a number of times throughout that night.

         The court overruled Mooney's objection to this proffer, stating "this is a show cause proceeding and hearsay is allowed." The newspaper article was not admitted into evidence and is not in the record. The court found Mooney in violation of the terms of his suspended sentences and revoked 11 years and 19 months of his suspended sentences, but then re-suspended all but three years.

         On appeal, the Court of Appeals affirmed the trial court's ruling, holding that the proffer did not violate Mooney's due process rights because the newspaper article from which the prosecutor quoted was not testimonial hearsay. Mooney v. Commonwealth, 69 Va.App. 199, 204 (2018).


         Constitutional error can generally be subject to harmless error analysis, Foltz v. Commonwealth, 284 Va. 467, 472 (2012), and that includes a claim that due process was violated at a revocation proceeding. See, e.g., United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir. 2003) ("A due process violation at a revocation proceeding is subject to harmless error analysis.") (internal quotation marks and citations omitted). The standard for an alleged constitutional error is whether the error was harmless beyond a reasonable doubt. Commonwealth v. White, 293 Va. 411, 421 (2017).

         The most salient fact is that, as Mooney conceded, he was convicted of three major violent new felonies: abduction, strangulation, and assault and battery on a family member, third offense. Thus, he was unquestionably in violation of the terms of his probation. Before that latest violation, Mooney had been found to have violated the terms of his probation on six prior occasions over a seven-year period - October 15, 2008, October 7, 2009, July ...

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