## Facts

- Kevin Cody and Rebekka Weingarten lived together and had two young children.
- During a January 15, 2016 argument, Cody strangled Weingarten until she lost consciousness, punched her, and stepped on her back.
- Later that day, Weingarten called 911 from outside the sheriff’s office, reporting she was leaving a “very dangerous man” and describing recent choking and other abuse.
- Weingarten also made statements describing the assault and her injuries to law enforcement officers and to a forensic nurse examiner.
- A protective order barred Cody from contacting Weingarten; while jailed awaiting trial, Cody repeatedly called her in violation of the order and urged her not to cooperate with the prosecution.
- At a preliminary hearing, Weingarten invoked the Fifth Amendment and refused to testify.
- Over Cody’s Confrontation Clause objection, the circuit court admitted Weingarten’s out-of-court statements under forfeiture by wrongdoing and convicted Cody of strangulation, assault and battery of a family member, and five protective-order violations.

## Issues

1. Whether the Commonwealth proved, by a preponderance of the evidence, that Cody intentionally procured Weingarten’s unavailability so as to trigger forfeiture by wrongdoing and permit admission of her testimonial statements despite the Sixth Amendment.
2. Whether Weingarten’s statements to (a) the 911 dispatcher, (b) the forensic nurse examiner, and (c) law enforcement were testimonial for Confrontation Clause purposes.

## Decision

- The Court of Appeals of Virginia affirmed the convictions.
- The court held the Commonwealth proved by a preponderance that Cody intended to, and did, procure Weingarten’s unavailability through wrongdoing, so he forfeited confrontation rights as to her testimonial statements.
- The court held Weingarten’s 911 statements were non-testimonial because their primary purpose was obtaining help during an ongoing emergency.
- The court held Weingarten’s statements to the forensic nurse examiner were non-testimonial because their primary purpose was medical evaluation and documentation of injuries.
- The court held Weingarten’s statements to law enforcement were testimonial, but admissible because forfeiture by wrongdoing applied.

## Legal Principles

- The Confrontation Clause restricts admission of testimonial hearsay absent cross-examination; non-testimonial hearsay is not barred by the Sixth Amendment.
- Under the “primary purpose” test, statements aimed at resolving an ongoing emergency are generally non-testimonial, even if they describe past events and identify an assailant.
- Statements made primarily for medical diagnosis or treatment (including a forensic medical exam focused on injury assessment) may be non-testimonial when their purpose is medical rather than prosecutorial.
- Forfeiture by wrongdoing applies when the Commonwealth shows, by a preponderance of the evidence, that the defendant wrongfully acted with intent to make the witness unavailable and that the wrongdoing caused the unavailability.
- When forfeiture by wrongdoing is established, the defendant loses the right to object on Confrontation Clause grounds to the absent witness’s testimonial statements.

## Conclusion

The court upheld admission of the victim’s statements because her 911 call and forensic-nurse statements were non-testimonial, and her testimonial law-enforcement statements were admissible after the defendant’s protective-order-violating jail calls intentionally caused her refusal to testify, triggering forfeiture by wrongdoing.


Cody v. Commonwealth, 812 S.E.2d 466 (Va. Ct. App. 2018)