ANALYSIS OF AUGUST 31 AND SEPTEMBER 7, 2010 CAV OPINIONS[Posted September 12, 2010] I have quite a bit of catching up to do, so here is analysis of two weeks’ worth of published opinions from the Court of Appeals. All of these decisions involve criminal law, and as has been the trend lately, the Attorney General bats 1.000.
Two years ago, the Supreme Court of Virginia addressed something called the fugitive-disentitlement doctrine in Sasson v. Shenhar, a child-custody dispute in which the father took his child and left for Spain, defying court orders to return. Rejecting his appeal, the Supreme Court held that he could not simultaneously invoke the courts’ jurisdiction while fleeing from enforcement of its orders. On August 31, in Reid v. Commonwealth, the CAV applies this doctrine to dismiss a criminal appeal.
Reid was convicted of illegal possession of a firearm and sentenced to two years of free room and board with the compliments of the Board of Corrections. He posted a $25,000 bond and was admitted to bail pending an appeal. For about two months, he complied with the terms of his bond, including periodic reports to the court and a probation officer. But shortly after that time elapsed, he vanished. The trial court issued a capias for him. In the meantime, his previously-noted appeal progressed.
The Commonwealth filed (in the appellate court) a motion to dismiss the appeal, citing the fugitive-disentitlement doctrine. Last week, the Court of Appeals granted that motion. In doing so the court shrugged off a procedural objection, in which Reid’s lawyer claimed that the Commonwealth had not timely filed a trial transcript. That objection failed because motions are governed by Rule 5A:2, not by the ordinary provisions of Rule 5A:8 and 5A:25, and in any event, it’s the appellant’s obligation to provide a sufficient record. The appellant, you’ll note, was Reid, not the Commonwealth.
The court goes on to apply the doctrine in a criminal case (Sasson was civil), and to hold that all three prongs of the analysis were met here: Reid was indeed a fugitive; his absence related to the current appeal; and dismissal of the appeal was “necessary to effectuate the policy concerns underlying the doctrine.”
Are there any circumstances in which the doctrine won’t dunk an appeal by an absent appellant? Sure; one easy instance of such an appeal is where a person like Reid is on the lam for a felony, and he’s appealing a losing tort suit for something that happened, for example, long before the crime. In that case, his status as a fugitive has nothing to do with the case he’s appealing. Apart from this, the principle of this doctrine is that you can’t run to the court for affirmative relief while you’re running away from that same court’s jurisdiction.
Criminal practitioners get a useful venue lesson in Kelso v. Commonwealth, where the defendant was convicted of causing a juvenile to assist in the distribution of marijuana. Kelso gave marijuana to a juvenile in Kelso’s Henrico County apartment. The juvenile then brought the contraband to an informant in Hanover County. Kelso was prosecuted for the offense in Hanover.
Perhaps arguing that he had never set foot in the latter county, Kelso moved to dismiss the indictment. (As the court points out in a footnote, that’s the proper way to challenge a defect like this, instead of by lying in wait until the motion-to-strike stage.) The trial court found that at least part of the offense occurred in Hanover, so it proceeded to try and convict Kelso.
On appeal, Kelso raises the related question of the trial court’s territorial jurisdiction, but that argument wasn’t made below, so it dies at the hands of Rule 5A:18. Analyzing the venue issue, the CAV panel parses the criminal statute to determine the elements of the offense. It notes that the operative act in the crime isn’t the eventual distribution by the juvenile; it’s “causing” the juvenile to cooperate. The court finds that while Kelso may never have left the friendly environs of Henrico for the wilds of Hanover, at least a portion of the overall offense took place in Hanover, so venue was permissible there. The conviction is thus affirmed.
Is there any limit to this expansive doctrine? Suppose the juvenile is recruited to take the drugs down the block, but decides on his own to haul it across the county line, or across the Commonwealth, for that matter? This opinion doesn’t address whether Kelso planned the Hanover distribution, or even knew just where the informant would be located (and therefore where the ultimate delivery would take place). This opinion holds that the recruiter had better beware, for he risks being hauled to an unfamiliar jurisdiction for trial.
In Grafmuller v. Commonwealth, the court takes up a charge of criminal solicitation of a child.
I read once that those folks who chat online with children in an attempt to solicit sex are usually balding, overweight, middle-aged men who don’t realize that the person on the other end of the line is actually (1) another balding, overweight, middle-aged man, or (2) a police officer. In Grafmuller’s case, it turned out to be option 2. The trial court found him guilty based on an Alford plea, and applied a mandatory-minimum sentence of five years of active time in prison.
Grafmuller appealed the application of the mandatory-minimum sentence. The applicable criminal statute forbids any person from “soliciting, with lascivious intent, any person he knows or has reason to believe is a child less than 15 years of age.” The relevant sentencing provision states that if the defendant “is at least seven years older than the child he knows or has reason to believe is less then 15,” then the mandatory-minimum applies.
Grafmuller argued that the use of the phrase the child in the sentencing statute restricted that provision to those instances where there was an actual child; not to situations where he was chatting with an adult. The appellate court rejects this interpretation based on an elementary principle of grammar: The legislature’s use of the word the. Since that’s a definite article, it refers back to the original prohibition language, which included that “has reason to believe” clause. If the statute had referred to “a child,” then Grafmuller might have a point; but the court knows too much about grammar to let this one go.
Moving on to the decisions handed down on September 7, the court explicates the parameters of admissible character evidence in Argenbright v. Commonwealth, where the defendant was convicted of forgery and of obtaining money by false pretenses. The CAV begins by noting that character evidence is admissible for two purposes in cases involving moral turpitude. The first, unique to that class of cases, is to show that the character of the defendant is such that he’s unlikely to have committed the offense. (Don’t try that with a DUI charge, folks.) The second is the more common use of bolstering a witness, usually the defendant, whose testimony has been attacked or impeached.
In either event, the character witness’s testimony must address the defendant’s reputation in the community for truth and veracity. In this sense, the CAV notes in this opinion, the character witness is required to offer hearsay; indeed, she’s limited to testifying on a hearsay basis. Evidence of individual acts of honesty, or of the character witness’s own opinion of the defendant’s honesty, are immaterial and inadmissible.
Argenbright offered no fewer than five character witnesses, and by golly, not a one of them could meet this simple test, the CAV panel rules here. The trial court had rejected all five, but the defense had sensibly proffered the testimony of each such witness. The court lists the key statements each one makes and finds that it doesn’t measure up to that hearsay-level statement of how the public perceives the defendant’s honesty. The court thus affirms the convictions, since the trial court acted within its discretion in excluding all five.
Finally, Foltz v. Commonwealth implicates society’s technological advances by considering whether police may, without a warrant, place a clandestine GPS unit on a suspect’s vehicle for the purpose of tracking his movements.
What was unquestionably a horrifying day for the victim turned out to have a safe ending. Walking down a street one day, she was accosted by an attacker who knocked her down, dragged her under a tree, and started to unbutton her pants. The terrified woman must have been just as astonished as she was relieved when two police officers, who just happened to be nearby, came running up from nowhere and tackled her assailant before he could rape her.
Well, my saying that they “just happened to be nearby” might not be quite accurate. These officers were investigating a string of similar assaults, and they had identified Foltz, a registered sex offender, as a possible suspect. The manner of their tracking him is the plotline for our story, and the issue to be decided in this appeal.
A few days before, officers had quietly attached an autonomous GPS transponder under the bumper of the truck Foltz drove. The truck belonged to his employer, and was marked with the company logo; like other employees, Foltz was permitted to use the truck to drive to and from work and for limited other work-related purposes. The unit allowed officers to track where Foltz traveled, without requiring them to follow him in a car at a discreet distance, the way Joe Friday and Bill Gannon once had to do.
The day before this attack, Foltz’s truck was tracked driving slowly up and down the streets of a certain neighborhood (in what the opinion describes as a “hunting” pattern); a sexual assault was reported there that evening. Based on this set of circumstances, police decided to follow Foltz more closely the next day.
One irony (among many) in this story is that on the day of the attack I described in the first paragraph of this essay, Foltz wasn’t driving the company truck at all. Officers followed him as he drove his personal vehicle (to which no GPS unit had been attached), and that’s how they came to be close enough to rescue this victim and apprehend Foltz in flagrante delicto.
In the trial court, Foltz moved to suppress all evidence against him, on Fourth Amendment grounds. He contended that an illegal search and seizure occurred when the GPS unit was placed on the truck, and everything that happened thereafter was a fruit of the poisonous tree.
I’m trying to be as detached an observer as possible here, but it occurs to me that there are enough holes in this argument to make a block of Swiss cheese envious. Let me count the ways:
• The police observed him in the act of a violent sexual assault.
• They nabbed him at a time when the company truck was nowhere in sight.
• Foltz claimed to have a privacy interest in his travels on public roads.
• He also claimed that the placement of the unit on the truck diminished its value, even though he didn’t own the truck.
There are more, but that ought to do for now. The CAV panel affirms, holding that under these circumstances, one has no expectation of privacy in driving on public streets, especially a truck that has a logo that’s designed to attract attention, and especially especially when it’s driven slowly, thus enhancing the truck’s visibility. The court distinguishes cases involving surveillance inside homes, where one has a full and reasonable expectation of privacy. We also get this bon mot in the majority opinion, authored by Judge Beales: “There is no societal interest in protecting the privacy of those activities that might occur in a bumper.” (In case Judge Beales is ever arrested on a charge of not being witty enough, this rim shot will be Defense Exhibit 1.)
My mention of a majority tells my readers that this decision wasn’t unanimous. The chief judge files a concurring opinion in which he suggests that it isn’t necessary to engage in a long constitutional-law discussion of the Fourth Amendment. In his view, the fact that the police saw the attack with their own eyes, and without using the GPS in any way, makes the whole search-and-seizure analysis unnecessary. I have to say that I agree with him; in the circumstances of this case, the GPS unit had about as much to do with this arrest as did the tide chart for the Bay of Fundy. But we’re just talking about two different routes to get to the same destination; the panel affirms the conviction.
One last point: On August 31, the court granted en banc review of the August 10 panel decision in Holloway v. Commonwealth, involving charges of possession of an imitation controlled substance and of assault on a police officer. In January, a panel reversed the first conviction and affirmed the second. The Commonwealth sought rehearing by the panel; that petition was granted, and last month, the panel repeated its prior finding. In response to a separate petition for en banc review (also filed by the Commonwealth), the full court has now agreed to take the case.
On the newsworthiness-o-meter, a grant of en banc review generally falls somewhere in the middle of the scale. It’s always notable when the full court agrees to decide an issue; those decisions are the strongest the court issues, measured in terms of their precedential effect. On the other hand, just granting review tells us nothing about how the case will ultimately be decided. The real news day is when the full court’s opinion comes down.
This grant, however, has independent news value for appellate practitioners. It illustrates the principle that one party can file successive petitions for rehearing in a single case, where the first seeks only rehearing by the panel (Rule 5A:33) and the second is directed to en banc review (Rule 5A:34). Many litigants file both petitions at once, and you certainly can do that; but as we see from this case, that isn’t essential. You don’t see this very often; even rarer is a situation in which both successive petitions are granted. This one will bear watching for the court’s final word, sometime next year.