Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
TONY JERMAINE WALKER
SENIOR JUSTICE CHARLES S. RUSSELL
January 13, 2011
Record No. 100263
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a conviction of grand larceny of an
automobile under Code § 18.2-95, the Commonwealth relied on
the “blue book” published by the National Automobile Dealer’s
Association (NADA) to prove that the value of the stolen
property exceeded $200.
The dispositive question is whether
proof by that method, although expressly authorized by
statute, violated the defendant’s Sixth Amendment right of
confrontation as elucidated in Crawford v. Washington, 541
U.S. 36, 68 (2004), and Melendez-Diaz v. Massachusetts, 557
U.S. ___, ___, 129 S.Ct. 2527, 2531 (2009).
Facts and Proceedings.
On July 7, 2008, Thanh Ngo parked a white 2004 Toyota
Sienna van owned by his wife behind a nail salon that he and
his wife operated in a shopping mall in the City of Hampton.
Ngo testified that the car was “in very good condition” and
that there was a bicycle mounted on a rack attached to it.
The car was still there at 3:30 p.m. but was gone when Ngo
looked for it at 4:00.
At approximately 6:50 p.m., Officer
Matthew Peele of the Hampton Police Division found the vehicle
in a ditch.
The defendant, Tony Jermaine Walker was slumped
over the steering wheel, unconscious.
consciousness, Walker told the officer that he had seen Ngo
park the van behind the nail salon and inadvertently drop the
keys to the van.
Walker told the officer that he picked up
the keys and took the van as an act of retaliation.
contended that Ngo had stolen his bike a few days earlier but
that he had not reported the theft to the police because he
was “keeping it in the streets.”
Walker was indicted for grand larceny in the Circuit
Court of the City of Hampton.
At a bench trial, he was
convicted and sentenced to nine years imprisonment with five
years suspended on conditions of probation.
At trial, the
court admitted the NADA “blue book” into evidence as proof
that the stolen vehicle had a value in excess of $200.
objected on the ground that his counsel could not crossexamine the book and that its admission violated his right to
confront the witnesses against him.
Walker appealed to the Court of Appeals, contending that
the circuit court erred in admitting the “blue book” into
evidence and that without it, there was no proof of value, a
requisite element of grand larceny.
By memorandum opinion and
order entered January 26, 2010, the Court of Appeals affirmed
the conviction, holding that the “blue book” was not
testimonial in character and therefore its admission did not
violate Walker’s constitutional confrontation rights.
v. Commonwealth, Record No. 2931-08-1, slip op. at 2-3
(January 26, 2010).
We awarded Walker an appeal.
Because Walker’s appeal presents a question of law as to
the admissibility of evidence, we apply a de novo standard of
Commonwealth v. Garrett, 276 Va. 590, 599, 667 S.E.2d
739, 744 (2008).
Code § 18.2-95 defines grand larceny as
“simple larceny not from the person of another of goods and
chattels of the value of $200 or more.”
Commonwealth, to prevail in a prosecution for that offense,
must prove beyond a reasonable doubt not the exact value of
stolen property, but only that its value exceeded the
Code § 8.01-419.1 provides, in pertinent part:
Whenever in any case not otherwise specifically
provided for the value of an automobile is in issue,
either civilly or criminally, the tabulated retail
values set forth in the National Automobile Dealers'
Association (NADA) "yellow" or "black" books or any
vehicle valuation service regularly used and
recognized in the automobile industry that is in
effect on the relevant date, shall be admissible as
evidence of fair market value on the relevant date.
Walker argues that the effect of that section, as applied
at his trial, was to deny him his right to cross-examine the
Commonwealth’s witnesses against him on the issue of the van’s
The Commonwealth contends that Walker’s confrontation
rights were not infringed because the “blue book,” unlike
certificates of drug or blood alcohol analysis, is a
repository of information prepared for general use by the
automobile sales industry, not for litigation.
The book is
neutral, the Commonwealth argues, and not accusatory because
it was not designed to prove criminal wrongdoing by Walker or
anyone else. ∗
The Supreme Court of the United States, in Crawford and
Melendez-Diaz, made it clear that the admission of documentary
evidence in lieu of the live testimony of witnesses violates a
criminal defendant’s confrontation rights under the Sixth
Amendment, if the documents are testimonial in nature, because
such documents cannot be tested “in the crucible of crossexamination.”
Crawford, 541 U.S. at 61.
On the other hand,
the admission of documentary evidence that is not testimonial
does not offend the confrontation clause.
Business and public
records, for example, are not testimonial because they are
created for the administration of affairs generally “and not
Guides prepared by the NADA are “intended . . . to
assess the values of various vehicles.” N.A.D.A. Services
Corp. v. Business Data of Virginia, Inc., 651 F. Supp. 44, 47
(E.D. Va. 1986).
for the purpose of establishing or proving some fact at
Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2539-40.
It is most improbable that the compilers of the “blue
book” ever heard of Walker or the charges against him and they
certainly did not prepare the book for the purpose of
assisting the Commonwealth in securing his conviction.
agree with the conclusion reached by the Court of Appeals that
the book was not testimonial in character.
Walker also argues on appeal that the circuit court erred
in admitting the “blue book” as a business record under the
business records exception to the rule against hearsay because
the Commonwealth failed to lay the requisite foundation to
support that exception.
We find no merit in that contention.
The Commonwealth did not rely on the business records
exception at trial, but rather offered the “blue book” on the
sole authority of Code § 8.01-419.1.
That statute provided
the only foundation necessary.
Walker further argues that the “blue book” did not give
the value of the particular vehicle stolen.
Instead, the book
listed four classes of 2004 Toyota Sienna vans and assigned
values to each class.
There is no contention that the stolen
van fell into some category not listed in the book but Walker
contends that its value cannot be ascertained by reference to
classes or models.
Walker’s argument is based on the
erroneous premise that the Commonwealth was required to prove
the precise value of the stolen property.
As stated above,
the Commonwealth’s burden was only to prove that its value
Because all four classes of 2004 Toyota Sienna
vans were shown by the book to have values far in excess of
that amount, there was credible evidence before the court from
which a rational fact-finder could conclude that the
Commonwealth had met its burden of proof.
For the reasons stated, we will affirm the judgment of
the Court of Appeals.