ANALYSIS OF APRIL 14, 2009 CAV OPINIONS

[Posted April 17, 2009] On Tuesday, while I was away in the savage lands of Washington, DC, the Court of Appeals gave us three published opinions.  I think I have just enough time to sneak in the analysis of those three cases before this morning’s Supreme Court opinions hit the wire.  All three of this week’s CAV opinions are in criminal law appeals, and the outcomes of two of them spring directly from recent Supreme Court rulings.
 

Last year, the Supreme Court handed down McMorris v. Commonwealth, in which it ruled that the evidence was not sufficient to support a conviction of robbery arising out of a mob assault.  This week, the CAV decides
Abdullah v. Commonwealth, involving essentially the same issue on only slightly different facts.  The evidence showed that Abdullah was one of a group of assailants who attacked a victim in Norfolk.  The victim fled, leaving behind a backpack and a laptop computer.  A few minutes later, the victim returned to the scene, but the bag and computer were gone.
 

Prosecutors got convictions against Abdullah for robbery (a felony) and assault by mob (believe it or not, a misdemeanor).  On appeal, the Attorney General commendably conceded that the recently-decided McMorris decision required that the robbery conviction be reversed and dismissed; the McMorris holding essentially foreclosed such a conviction.  But the court affirms the judgment for assault by mob, even though there was no evidence that Abdullah ever actually touched the victim.  For this offense, all the prosecution must establish is that the defendant was a part of a group that assaulted the victim, since the offense is complete when the mob, not necessarily the individual defendant, commits the assault.  There was certainly credible evidence in the record to support that conclusion.  Think this is guilt by association?  Well, maybe it is.  But when you hang out with an assaultive mob, you’d better expect some unpleasant consequences.
 

The second case decided this week is
Johns v. Commonwealth, in which Johns was convicted of statutory burglary.  Like Giles v. Commonwealth, 277 Va. 369, decided seven weeks ago today, this case involved the defendant’s breaking into a residence in which no one was present.  In Giles, the owner lived elsewhere but had stayed in the victimized house recently.  In Johns, the house was undergoing renovations by its corporate owner.  (I infer that the house was bought as a fixer-upper, and the owner intended to flip it after renovating it.)
 

The Supreme Court affirmed a conviction in Giles, holding that the house was one that was used for habitation.  But here, there was no evidence that this house was used by its owner to live in; indeed, he had no intention of doing so.  Unlike the house in Giles, the only things inside the house were building tools and equipment.  Those differences, the Court of Appeals finds, are dispositive; it rules that this house was not a "dwelling house," one of the predicate facts for a burglary conviction, so the conviction is reversed and the indictment is dismissed.


 
[At this point, some of my readers who defend criminal cases are wondering why the Caselaw Fairy never drops surprise gifts from above in their cases while the matter is on appeal, as happened in these two cases.Sorry, guys; I can’t help you.I’m just the scribe here.]

 
The last decision is Robinson v. Commonwealth, and that, too, has at least a reasonable nexus with a recent SCV opinion.  Robinson was arrested after police observed a suspicious transaction at a gas pump, in which the driver of the vehicle pumped no gas at all.  A confidential informant had alerted the police to an imminent drug transaction, and provided plenty of details about the participants, one of which turned out to be Robinson.  The case turns on the reliability of the informant’s tip, and whether the trial court should have suppressed the evidence seized at the arrest.
 

This case will remind you of last year’s Supreme Court discussion of confidential informants in Buhrman v. Commonwealth, 275 Va. 501.  That opinion enjoined lower courts to consider all of the circumstances of the case in evaluating whether a tip is reliable.  Here, the CI had accurately described the location of the impending drug sale; had given a fairly exact description of Robinson’s vehicle, including make, model, and even license plate number; and had described her by name and physical description.  Importantly, the informant explained to police that he or she had seen Robinson in possession of drugs.  The court accordingly affirms the decision not to suppress the evidence, and the ensuing conviction.
 

There are a couple of practice pointers here.  One is contained in a footnote, where practice tips often go to hide: "At the suppression hearing, the prosecutor did not ask Officer Nunez on direct examination whether the CI had ever provided false information, and appellant’s counsel made no such inquiries on cross-examination."  Accordingly, if you’re making a motion to suppress based on a CI’s tip, at least ask the officer about any false leads that this particular informant may have given in the past.  If the officer relates that the CI had given information that led to 15 previous arrests, but no one bothers to point out the 57 false leads he also gave the gendarmes, then the matter will be invisible on appeal.  This isn’t guaranteed to get your suppression motion granted, but it might help, especially if the balance is particularly lopsided.
 

Second, if you’re the prosecutor, bear in mind that the patient police officer is your friend.  The officers who set up surveillance at the gas station didn’t pounce as soon as they saw Robinson drive up in the described car; they waited and watched to see what went on.  Indeed, no police officer ever saw Robinson hand anything to the man who approached her car as she sat at the gas pump.  But the totality of the circumstances, including the detailed tip, entitled the officers to make the arrest.
 

Finally, I don’t generally provide advice to prospective crooks, but the events of this case are irresistible.  If your cover for a drug transaction is that you’re going to the gas station to fill up, you should at least pump a few dollars’ worth . . .
***
 
I have learned a few additional details about a CAV decision I reported about here recently, and I thought it best that I mention them here.  These additional details render the circumstances, in my view at least, far less troubling than you would have gathered on a first read of the opinion.  On March 31, the CAV decided Roberson v. Commonwealth, in which it dismissed a DUI appeal because the appellant had listed the Commonwealth instead of the City of Virginia Beach as the prosecuting authority (and hence the appellee).  The lawyer for the appellant incurred the barely-concealed wrath of the appellate panel when he secured entry of an order, the day before appellate oral argument, vacating the original sentencing order and changing the name of the prosecuting entity from the city to the Commonwealth.
 

One particularly problematic circumstance was that the lawyer went to a different judge from the original sentencing judge to get the corrective order.  On its face, that looks like an end run around the original judge.  But the original judge, who was retired and sitting by designation, was (according to rehearing pleadings filed by Roberson this week) away from the court – possibly on vacation – for an extended time, and was thus unable to rule on Roberson’s motion, since he didn’t even know about it.  Faced with a looming appellate date and with no reasonable prospect of getting through to the original judge, the lawyer thus went to the chief judge of the trial court, who granted him the requested relief under Code §8.01-428.  As the March 31 opinion notes, the Attorney General wasn’t present in the trial court, but evidently the local prosecutor who had originally handled the case was present (thus putting to rest another apparent procedural and ethical problem, the specter of an ex parte hearing).
 

There is still a procedural problem with that process, even though it at least doesn’t look crooked at this point: The trial court needs the consent of the appellate court to make a section 428 correction, since the record is now in Richmond.  Roberson’s lawyer has now asked the appellate court for that leave in a motion.  We’ll see how the CAV handles this matter, now that Roberson has followed the correct procedures to have the matter resolved on the merits instead of by a procedural default.  In any event, since my earlier analysis of the CAV’s opinion might lead my readers to suspect impropriety on the part of the lawyer and the chief judge, I wanted to correct that suggestion publicly.