ANALYSIS OF APRIL 8, 2008 CAV OPINIONS
[Posted April 8, 2008] This morning, I attended the Norfolk/Portsmouth Bar Associations Bench-Bar Conference, at which I had the pleasure of giving a presentation along with Judge Everett Martin on the years top civil cases, and hearing Justice Lemonss keynote address on the difference between ethics and civility (he argues compellingly that ethics sets a minimum requirement for our conduct, while civility is the celestial aspiration). While I was there, the Court of Appeals dropped no fewer than seven published opinions on me. All of todays rulings are in criminal appeals, and the inmates dont do very well at all, with arguably half a victory and 6 ½ losses. This mornings developments will leave me a bit behind in posting analysis of those seven cases. Ill post as many as I can this afternoon, and will finish the discussion tomorrow morning.
Morris v. Commonwealth presents an intriguing argument that will give many criminal practitioners pause. We all know that the Commonwealth must show proper venue for the offense; that is, that it occurred within the territorial limits of the trial courts jurisdiction. Many direct examinations of investigating officers end with the perfunctory-sounding question, And officer, did this offense occur in the City of ______? In that vein, this case produces a novel venue issue that might just merit additional appellate scrutiny.
Morris decided that December 12, 2005 was a good night to get good and stoned. She smoked crack cocaine, and undoubtedly possessed a glass tube for that purpose, plus a couple of syringes for shooting heroin, and a dollar bill with heroin residue. She ingested so much that it rendered her unconscious, with the aforementioned items in her pockets.
A friend evidently found her in this state, and called an ambulance. The rescue folks picked her up in
Her lawyer (the one who just got through cussing her out for being so foolishly forthcoming) raised the aforementioned novel issue possession is a specific intent crime, so the Commonwealth has to show that a defendant knowingly and voluntarily possessed the contraband in order to get a conviction. But the whole time Morris was in possession of the stuff while in
This argument didnt impress the trial court, and a panel of the Court of Appeals agrees today with the trial judge. It finds that possession is a continuing offense; that voluntary intoxication does not eliminate criminal culpability; and that the factfinder may infer purpose and intent from the fact of possession. It also points to caselaw that holds that where the criminal acts occur in multiple jurisdictions, the offense is committed and cognizable in each. It concludes that Morriss knowing and intentional possession of the items continued as she was transported into another jurisdiction, so the convictions are affirmed.
Now, dont get me wrong; I am not an apologist for criminal defendants. I spent nine years in
It is eminently foreseeable to me that this case might get en banc or Supreme Court scrutiny to address these significant concerns. But for now, Morriss convictions stand.
In contrast, todays ruling in Bunch v. Commonwealth will engender few howls of protest from commentators (and certainly none from me). Bunch was parked illegally in
Memo to crooks: When confronted by an officer, never, never reach into dark areas while the officer is watching. That produces a very understandable concern for the officers safety, and at that point, you are exiting the vehicle, whether you want to or not. When Bunch got out, the odor of marijuana was, . . . well, lets just use profound instead of a weightier adjective. The officer patted him down and felt some lumps in his coat pocket. He reached in and pulled out six bags each of marijuana and cocaine, after which Bunch got a free ride to lockup, and charges of possession of the two drugs with intent to distribute.
Bunch argued before trial that the officer exceeded the scope of a permissible Terry stop when he reached inside Bunchs coat. The officer knew by that point that there was no weapon, and Bunch argued that a pat down only justifies a search for weapons. The appellate court today rules that a Terry stop may be so constrained, but the officers independent probable cause inquiry certainly justified further investigation, specifically including reaching inside the coat. Probable cause in this context requires consideration of all of the circumstances of the case, and given everything the officer knew, he was justified in proceeding as he did.
There are a couple of interesting turns of phrase in todays opinion, authored by Judge Kelsey. For one, he refers to this concept as the plain smell doctrine, citing a law review article on the point. (I guess I need to read more law reviews, because I had never heard that term before.) In another, he describes Bunchs argument that the officer had to have probable cause to smell him as part of the investigation. Candidly, I would have a hard time listening to an argument like this without chuckling to myself, Youre kidding, right? But Judge Kelsey answers the argument more diplomatically than that, noting that no one has a privacy interest in his odors. (I can imagine the conversation now. Officer: Gee, whats that cologne youre wearing? Suspect: None of your damned business.) I believe that the smell emanating from a suspect is no more private than is his haircut, or his height. Its something thats plainly open to observation, and not legitimately the subject of a suppression motion.
Following the theme of voluntary intoxication, we now turn to Huffman v. Commonwealth , which evidently arose in a
I forgot to mention the final character in this drama: Huffmans gun. In his drunken ardor, he waved the handgun about, and even threatened to shoot one of the homeowners. When that homeowner asked twice that he put the gun away, and finally said he would call the police, Huffman put the gun away and left. The question is whether all this amounts to brandishing a firearm.
The prosecution can get a conviction for brandishing if it shows that the defendant pointed a firearm, and that he thereby reasonably induced fear in the mind of the victim. No one fussed over whether Huffman pointed the gun, but he contended that the victim never testified that he was scared. This minor point is enough to make this opinion published, so that future generations of lovelorn gun-brandishers will know that, at least in the view of the Court of Appeals, fear does not equate to fright. It does equate to a reasonable apprehension of injury. And the court finds no fault with the trial courts decision that the victim apprehended injury, as indicated by his repeated requests that Huffman put the gun away. This important refinement of the law comes in a very small package (the slip opinion is just over 4 pages long) that will be required reading for those handling brandishing prosecutions.
The next case, Price v. Commonwealth , deals with probation violations. Price was a two-time loser who had received partially suspended sentences in both of his previous convictions. After getting out of prison the second time, he wasted no time in finding his local cocaine dealer, and thus tested positive for the drug; a month later, he stood up his probation officer, which we can agree is not a wise course of action. As if that werent enough, he then got arrested for burglary and larceny.
Now hes in hot water for sure; facing the two new charges plus violations of his probation, he has a lot of hard time in front of him. His probation officer reported the two new charges (but not the positive drug test or the missed appointment) and suggested a revocation hearing. The court issued a capias reciting the new charges as the only reason for the revocation proceeding. But the officer did send the court (and Prices lawyer) something called a major violation report, in which he listed the test and the appointment.
Not all the news here is bad for Price; he was acquitted of the burglary and larceny charges. The probation officer shrugged and suggested to the trial judge that the violation proceeding be dropped, a suggestion that Price heartily endorsed. But the trial court, having read the major violation report, had no intention of looking past the drug test and the missed appointment; it imposed lengthy prison terms for the violations, based on those two incidents alone. Price headed for the Court of Appeals.
The main reason for Prices objection was that he wasnt placed on formal notice of the charges against him, since the capias made no mention of these things. But the appellate court notes today that revocation proceedings arent part of criminal prosecutions, so the defendant doesnt get all the same rights as does a defendant whos facing trial. The notice he receives doesnt have to be perfect, although it does have to include a written notice of the violations. Thats the problem, Price argues. They left that out of the capias. But the court notes today that a capias isnt a formal charging document; its just a paper that empowers a law enforcement officer to take someone into custody. Price unquestionably got (in advance) a written notice of the conduct alleged against him, in the major violation report, and that suffices for probation purposes.
There is also a challenge to the trial courts discretionary imposition of the suspended time, but this argument is stillborn; todays ruling doesnt lay out in detail Prices argument, but I infer that it was merely, The trial judge was way too harsh on me. Appellate courts dont review decisions like that, as long as theyre within the range of permissible outcomes. The court finds today that the term of incarceration is fully justified for someone who thus squandered his conditional liberty.
The next two cases both deserve special attention. One is the courts only en banc ruling of the day (and produces the only dissent), while the other decides a matter of first impression in
The en banc case is
Considering that a grant of en banc review completely wipes out the panel decision, and no one addressed those issues in this round, whats the status of the charges that the panel affirmed? The answer is supplied, in almost dues ex machine fashion, by the court today, which reinstates the panels decision on the charges that the panel had affirmed. This might sound obvious, but it does represent an anomaly of sorts, in that the full court renders a ruling on issues that no one briefed, at least at this stage.
The facts of the case are fairly complex, so Ill just summarize the holdings here. Everyone on the court agrees to reverse and remand the conviction for malicious wounding, since the language of the indictment indicated only the lesser charge of unlawful wounding. Thats a big difference, since the maximum sentence for the malicious variety is twenty years, while the unlawful sort is capped at five years.
In the other ruling, which provides todays only judicial split, the majority reverses a conviction for felony neglect of the oldest of the three children, then aged 17 years and 7 months. Seven judges find that
The first impression case is Giles v. Commonwealth , and considers the question of just what is a dwelling house in the context of a statutory burglary prosecution. The house in question was vacant at the time; it had been inhabited by a woman who died three months before Giles and two of his pals broke in and helped themselves to some of the goods inside. During the intervening period, the decedents son had come by the place roughly once a month to stay over the weekend and look after the place; it clearly wasnt his home. His last visit was ten days before the burglary.
Once a house has been abandoned for human habitation, then it no longer qualifies as a dwelling house for burglary purposes. The Commonwealth argued that the sons periodic and temporary residence there was enough to render the house habitated, and the trial court agreed. Today, the Court of Appeals agrees, citing a string of caselaw, much of it from other jurisdictions. The dispositive factor, the court finds, is regular (though not necessarily constant) use for sleeping and other normal routine activities like cooking and bathing. It needs to be kept reasonably available for immediate or rapid habitation (so the owners cant let it go completely to seed), and indicia like electricity and other utilities, plus appropriate furnishings, may lead the factfinder to conclude that it is, indeed a dwelling house. The court today finds no fault with the trial courts conclusion that this was, indeed, a dwelling house, so Giles is, indeed, guilty of burglary.
Finally, the court rejects two challenges to state DUI laws in Wimbish v. Commonwealth . There appeared to be ample probable cause for the state trooper to arrest the driver, who even admitted during the field sobriety tests that he felt intoxicated.