ANALYSIS OF AUGUST 5, 2008 CAV OPINIONS
[Posted August 6, 2008] Ah, those naughty folks in IT at the Court of Appeals of
Normally the CAV posts published opinions to its web site on Tuesday mornings, usually by about 10:30 am. Yesterday, there was nothing up by 2:00 pm or so, so I assumed that no published opinions had been issued that day. Surprise! Three such opinions popped up somewhere around 4 pm, making it impossible, as a practical matter, for me to post same-day analysis of those three decisions. On the assumption that late is indeed better than never, here is a discussion of yesterdays decisions.
Criminal appellants have been taking a beating in the CAV lately, but yesterday, they got victories in the two published criminal decisions. Both of these cases came out of
While its possible that the whole thing might have been caught on the stores video cameras, police got all they needed, at first, by interviewing another store employee, one Rinehart, who wasnt in on the scam. The robber, upon entering the store, glanced momentarily at Rinehart, then turned his back on him and drew the gun on
The Commonwealth charged
Prosecutors seized on the innocent store employee, Rinehart, contending that he was the victim. But the Court of Appeals notes the hole in that theory Rinehart got merely a glance from the fake robber, and nothing more. The robber didnt get any money by threatening or harming him in any way. True, Rinehart may have felt some fear as a result of the robbery, but that doesnt make the threat the means by which the robber got the proceeds. The court accordingly reverses the robbery conviction.
The other criminal decision of the day, Middlebrooks v. Commonwealth , is a search and seizure appeal in a drug distribution case. In the (ahem) wee hours of a July morning at the
During that process, the officer asked if the car belonged to Middlebrooks. Its my peoples car, came the cryptic reply. But the officer didnt press it; he simply got Middlebrookss signature on the summons, and left.
Now, any sensible crook is going to get in his car, turn the key, and say to himself, I reckon I got to light out for the Territory. But Middlebrooks apparently never read The Adventures of Huckleberry Finn, so he inadvisedly stuck around. The same officer saw him, a few minutes later, sitting in the drivers seat of his peoples car. He accordingly ran a license check and learned that the car was registered to Middlebrooks. That, combined with the officers perception that the resort area (between 19th and 21st Streets) was a fishing hole for criminal behavior, led the officer to investigate further.
[On a side note, as a resident of Virginia Beach, and as a former City employee, I can imagine the city fathers cringing at this description of an area that is so vital for the Citys tourism industry. This is not the kind of publicity that the Chamber of Commerce envisions for my citys ability to lure Canadian families here, or to compete with those rascals down in
The officer went back to the car and asked Middlebrooks to step out. He asked for permission to search the car. Middlebrooks, who knew his rights reasonably well, said no. (Yes, you can do that.) But then a police sergeant told him, Im going to call the drug dog out. Im going to have him run your car. Checkmate, Middlebrooks thought. In response to a follow-up question, he admitted that there was an ounce of marijuana in the car. Police also found a scale, which probably tipped the balance sorry! in favor of a possession with intent to distribute charge.
Middlebrooks got himself a good lawyer, and that lawyer recognized that the polices grounds for the interrogation were pretty thin. He moved to suppress everything that happened after Middlebrooks was asked to step out of the car, or at least everything that happened after the drug dog was mentioned. The trial court denied that motion, and Middlebrooks thereupon entered a conditional guilty plea.
The Court of Appeals reverses. It eschews any analysis of whether this was a valid Terry stop when the officer asked Middlebrooks to step out, since he hadnt made any incriminating statements in the immediate wake of that event. The good stuff came after the dog was mentioned, so thats where the courts analysis starts. And the court concludes that these circumstances did amount to a Terry stop, rather than a consensual encounter, as the prosecution had urged. Thats because, when the police mentioned the dog, no reasonable person would have felt free to leave.
While consensual encounters require no suspicion whatsoever, Terry stops have to be based on some articulable and reasonable suspicion of criminal behavior. While Middlebrooks was admittedly in an allegedly high-crime area (if you listen carefully, you can hear the Chamber of Commerce groaning again), that isnt enough to justify a stop; the Supreme Court so held just four months ago. That leaves the police with just one suspicious circumstance Middlebrookss alleged lie about the ownership of the car. But that doesnt indicate that hes involved in criminal activity, so the conviction is reversed. Technically, the case is remanded for a new trial, if the Commonwealth wants to go through with it. But with no marijuana and no confession, I think we can agree that this case is concluded.
Back in late January, a panel of the Court of Appeals decided the case of McKee v. McKee , which presented three principal issues. A divided court ruled partially in favor of the husband and partially in favor of the wife, with Judges Clements and Haley in the majority and Judge Humphreys dissenting. But the court granted en banc rehearing the next month, and now we get the courts final word on the matter: The always persuasive Judge Humphreys manages to reel in all of his colleagues except the original panel majority. That means that the wife gets a victory by an 8-2 margin on the only two issues decided yesterday.
Thats right; two. The third issue (whether some of the wifes claimed expenses were speculative) produces an impasse at the court, as Judge Frank did not participate in the case and the other ten judges are split 5-5. The practical effect of that is that this issue is affirmed without discussion, and this opinion cant be cited as authority on this point.
On the other two, the court unanimously affirms the trial courts decision to include wifes mortgage in her monthly expenses. Husband had argued that the language of the separation agreement by which wife got the marital home, assumed the mortgage, and held husband harmless for that mortgage meant that she couldnt claim that as an expense in calculating spousal support. The court rejects that contention, saying that the indemnity relates to claims made by the mortgage company (such as for a default in the mortgage payments). The court also points out that wife refinanced the mortgage that was in effect when the agreement was signed, effectively removing husbands name from the obligation.
The other issue is the one that produces the 8-2 split. The majority rules that wife did not have an immediate obligation to secure income to reduce her support needs. Years ago, before the couples children were born, wife had worked as a respiratory care provider. Husband brought in a vocational specialist who testified that such workers were in demand, and made around $40,000 a year. But wife didnt go for a job like that; instead, she put her name on a list to be a substitute teacher at the childrens school.
A closer look at the facts reveals that there are warts on both parties legal positions. Wife couldnt exactly go back to work as a respiratory care provider because, in the interim (the 15 years while she was CEO of the house),
In the end, the majority hangs its collective hat on the burden imposed on the party seeking to impute income (here, the husband) to prove the need to impute, and the amount. The trial court had found the experts testimony not to be credible, so he failed in that duty.
Domestic relations practitioners should pay careful attention to this opinion for the way in which it explains, and ultimately distinguishes, the courts early decision in another case involving the question of whether the support calculus can include consideration of one spouses mortgage payment. That earlier case is Gamble v. Gamble, 14 Va.App. 558 (1992).