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L.Steven Emmert
Virginia Appellate News & Analysis by L. Steven Emmert - Inside the Case Decisions, RUlings & Opinions



[Posted July 28, 2014] The Fourth Circuit has affirmed the district court’s ruling in Bostic v. Rainey, the challenge to Virginia’s prohibition of same-sex marriages. This ruling strikes down Virginia’s constitutional and statutory ban of such marriages. Here is a link to the slip opinion, which I’m reading now; I may add some comments after I finish. The decision is 2-1, with Judge Niemeyer dissenting from the majority, which was written by Judge Floyd, joined by Judge Gregory.


In answer to your question, the answer is yes: This case will indeed be appealed across the Potomac.



[Posted June 24, 2014] In the past six years, we’ve seen several appellate opinions that discuss the authority of a trial court to defer a disposition in criminal cases. Defense lawyers cling to the notion that trial judges have the discretion to delay judgment and allow an otherwise-guilty defendant to sandpaper his sins; prosecutors persist in asking trial judges to go ahead and rule already.


Three years ago, the legal landscape shook when the Supreme Court decided Hernandez v. Commonwealth, 281 Va. 222, in which the court ruled that a judge can still take a finding under advisement after noting that the evidence was sufficient to convict. Hernandez reversed a CAV judgment that had found no such authority to exist.


In the intervening years, the justices have refined Hernandez at least once, in Starrs v. Commonwealth, 287 Va. 1 (2014). Starrs still left that judicial discretion open, even after a defendant signed a plea agreement that the trial court accepted. In the interim, we've seen Court of Appeals opinions that have expressed thinly disguised disdain for the Supreme Court’s rulings on this issue, and the CAV has occasionally ruled against a criminal appellant anyway, citing a perceived crack in the Hernandez doctrine.


Today, a panel of the Court of Appeals unanimously affirms a conviction in Harris v. Commonwealth. When you read the procedural history of the case, you’ll have difficulty figuring out a solid reason why this opinion is published. I see only one such reason: This is yet another shot across the Supreme Court’s bow on this still hotly contested issue.


Harris had, beyond question, been convicted twice of driving after having been adjudicated a habitual offender. He was arrested behind the wheel yet again in Chesapeake in 2012, one of a long string of drivers who evidently just can’t conceive that they might not be allowed to drive.


There was no challenge at trial to probable cause for the stop; nor did the defendant contest the evidence of his guilt, including the two priors. Instead, his lawyer asked the judge to take the case under advisement. He noted that Harris’s suspensions were for failure to pay fines, and he wanted to take a crack at paying off those fines and getting his DMV abstract back to some semblance of normalcy.


Experienced traffic-court lawyers are now wishing him the joy of that job; an abstract like that is a bloody mess that would take major surgery, not some polish around the edges. Still, the lawyer asked the judge to exercise his Hernandez-given discretion to defer matters, to at least allow Harris to try. The prosecutor argued that the judge had no such discretion, since the evidence of guilt was overwhelming and unchallenged. The judge listened to the arguments and said this:


[Appellant] has had at least 11 years to undertake to try to get his

fines paid off and have his license restored; and I believe, quite

frankly – although I appreciate [defense counsel’s] efforts on

behalf of Mr. Harris, I believe his request comes far too late; and,

therefore, I am going to deny your request that I take the matter

under advisement, but I certainly will note your exception to the

Court’s ruling.


Careful readers will note that the judge never affirmatively ruled on the disputed issue of whether he had the power to defer or not; he evidently assumed that he had that power, and simply decided not to defer. This is the ruling that’s at the heart of today’s appeal.


Experienced appellate lawyers know the importance of the standard of appellate review, which I’ve preached is case-dispositive in 80-85% of all appeals. Review for abuse of discretion is fairly lenient; as long as the trial court selects an option that’s within the range of available choices, there’s very little chance of reversal. This ruling by the trial court was, in my view inarguably, within his discretion. That didn’t stop Harris from appealing anyway, but the CAV panel finds that the trial judge acted within his rights in saying no.


If that’s all there were, this would be a routine unpub. Today’s opinion points out, quite correctly, that while a judge may have the discretion to defer, she doesn’t have the duty to do so; that’s a judgment call on her part. From my perspective, I cannot see an appellate court reversing a decision on the merits like this.


But there’s more. This excerpt from the penultimate page of today’s slip opinion furnishes, in my opinion, the reason why this case will land in Virginia Appeals Reports:


. . . we hold that a trial court’s narrow authority to defer a disposition does not in any way diminish its greater duty to render a timely and lawful judgment that faithfully applies the relevant facts and the controlling law. In short, a trial court cannot simply acquit a defendant through an act of judicial clemency (or judicial nullification), where the evidence proves the defendant’s guilt beyond a reasonable doubt and where no statutory authority exists to allow the trial court to dismiss the charge.


This, then, is the latest shot across the Supreme Court’s bow. Commonwealth’s Attorneys across Virginia will cite this language to trial judges for the premise that where the evidence is undisputed and sufficient, they have a duty to convict promptly. Where the only “defense” offered is an appeal for mercy, this language stands for the premise that judges don’t have the authority to refuse to convict. Defense lawyers, in turn, will try to find a way to distinguish their cases from this situation. (In my opinion, the easiest way for them to do that is to mount at least a colorable attack on the prosecution’s evidence. Harris’s lawyer evidently didn’t do that, leading to this black-or-white situation.)


So, is this case headed upstairs? I can foresee that Harris will try. But I seriously doubt that the justices would grant a writ in this case, because the ultimate issue on appeal is unassailable. The Supreme Court might take another case in which the trial judge specifically ruled that he didn't have any discretion, but that isn’t this case.




[Posted June 17, 2014] Let’s take a quick look at three opinions that have come down in the last week.


Criminal law

Anyone who has been to traffic court is familiar with the question, which might seem silly at first: “And Officer Jones, did this offense occur in the City of ________?” Well, of course it did, you probably mused the first time you heard that. Everybody around here knows that this address is in this city.


Still, prosecutors have asked officers and witnesses this question in criminal and traffic cases in order to establish the nonjurisdictional but still essential component of venue. A crime has to be prosecuted in the locality where it occurred, by statute, and many prosecutors are hypervigilant about getting this tidbit in affirmative testimony, if only to prevent a nagging motion to dismiss. And yet, sometimes they forget to ask, bringing us to last week’s decision from the Court of Appeals of Virginia in Williams v. Commonwealth.


Williams made the sad mistake of trusting the wrong guy. In this case, that wrong guy was an undercover police officer who expressed a desire to obtain a small amount of crack cocaine. The officer testified that he approached Williams in the 1700 block of O’Keefe Street, and specified that that location was in the City of Norfolk (which is where the trial occurred). He continued that Williams responded that they’d need to drive to the 800 block of Fremont Street. Other than saying that Fremont was “over there,” the officer never stated exactly where it was. The two drove over to Fremont, the purchase was made, and Williams learned about the wrong guy the hard way.


The issue here is whether this is enough to establish venue in Norfolk. In response to a motion to strike, the prosecutor asked the judge to take judicial notice of the fact that Fremont Street is indeed in Norfolk. After hearing arguments on both sides, the judge denied the motion, and eventually Williams was convicted.


The CAV last week affirmed the conviction, holding that the trial court properly took judicial notice of the fact that the 800 block of Fremont is indeed in Norfolk. This is the kind of easily ascertained fact that’s proper for judicial notice, and in the context of the officer’s testimony (including the fact that the trip from O’Keefe was short), it was within the court's discretion to find that this element of the case was met.


In a closing footnote, the CAV points out that it, too, can take judicial notice of facts like this, hinting that the judges may have gone to Google Earth or Bing Maps and checked to see for themselves. (The opinion refers to the City of Norfolk’s official street maps, but we know better, right?) Sure enough, those sources indicate that Fremont and O’Keefe intersect, well within the city limits of Norfolk; Fremont is only three blocks long.


One last procedural point: The court mentions that a challenge to venue is properly made by a motion to dismiss the indictment, not by a motion to strike the evidence. But since the Commonwealth didn’t argue in the appellate court that this was an improper mechanism for a venue challenge, the court is able to reach the merits of the issue.


The Fourth Circuit handed down an opinion with the sinister-sounding style, Under Seal v. US. A federal grand jury in Maryland was investigating a man who’s identified only as “Mr. Doe” for domestic-violence charges. In furtherance of the investigation, the grand jury subpoenaed Doe’s 19-year-old son to testify. The son moved to quash the subpoena, contending that any testimony that he might offer would be protected by the parent-child privilege.


The son testified during the MTQ hearing that the father wouldn't hold it against him if he did testify, although the whole situation did generate a lot of anxiety for the son. (Gee, aren’t all federal grand-jury proceedings like that?) The district court weighed the testimony and found that the father-son relationship was protected by a privilege, so it granted the motion to quash.


That’s a noble idea, but unfortunately, there’s no such thing as a parent-child privilege. That’s the key holding of the unanimous panel decision handed down yesterday (the day after Father’s Day!) that reverses the district court and requires the son to testify. As the opinion notes, “every federal appellate court that has considered adoption of the parent-child privilege – including our own – has rejected it.” In the absence of a well-established privilege, the son was required to make a “strong showing” of the need for it, but the court finds none here. A mere desire not to inculpate Dad isn’t enough.


Domestic relations

Two adjacent provisions in the Virginia equitable-distribution statute take the stage in Linton v. Linton. When the parties parted ways, the wife had a 49% interest in a limited partnership; her interest was worth over $750,000. When the trial court found that wife owed husband a monetary award of half that amount, an easy solution presented itself: Just order the wife to convey half of her interest in the account to husband.


Husband rebelled at this idea. For reasons that aren’t evident in today’s opinion, he didn’t want to accept that one-half interest. He objected to the court directive, and pointed to Code §20-107.3(C) for support. Today’s unanimous panel opinion from the CAV notes that that provision “specifically prohibits the court from dividing or transferring property which is not jointly owned.” This was the wife’s account, not a joint account, so the husband argued that he didn't have to accept that in satisfaction of his monetary award.


The wife responded that a provision in the following subsection did authorize the transfer: “The party against whom a monetary award is made may satisfy the award, in whole or in part, by the conveyance of property, subject to the approval of the court.”


So, with two subsections seemingly pointing in different directions, which one controls? Actually, the CAV rules that the two provisions don’t fight each other; they address different situations. And the court rules today that subsection D does authorize this transfer. True, the husband might not like to receive something other than a cashier’s check for his monetary award; but he can’t dictate the manner in which he’s to be paid. As long as the court approves the in-kind transfer, that’s a permissible means of satisfying an obligation like this.

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