[Posted December 11, 2007] An unusual bounty arrives from the Court of Appeals today, in the form of five published opinions. Three involve criminal appeals, and all of those are affirmed. The other two are Workers’ Comp appeals, and in both of those cases, the court reverses the Commission.

Criminal law

Sensible lawyers always know how important it is to pay attention to the court’s en banc rulings. Those are the strongest authority the court offers, as they represent the judgment of the court as a whole. When a unanimous en banc opinion comes down, then you absolutely must pay attention. With that introduction, we begin with Lightfoot v. Commonwealth. This case involves convictions arising out of an apparent effort to rob a bank, but the facts of the case aren’t relevant (and aren’t spelled out in the opinion anyway, so I couldn’t tell them to you if I wanted to. Today’s ruling centers around Lightfoot’s Batson challenges to the Commonwealth’s decision to strike two black veniremen from the jury.

The court finds that neither challenge suffices to reverse the conviction. The first is justified because the only reason for the challenge that’s apparent in the record is race-neutral; in fact, the prosecutor used the same reason to strike two veniremen, one white and the other black. The second fails because, in a familiar turn of appellate phrase, Lightfoot failed to ensure that the record was sufficient to enable the Court of Appeals to evaluate the issue.

The problem on the second challenge is that not all of the voir dire responses were tied to a particular venireman. One prospective juror, for example, stated that he (or she – the trial record doesn’t even tell us this much) went to high school with Lightfoot. That, you will appreciate, could be a non-pretextual reason for a peremptory strike. But Lightfoot never identified the other black venireman about whom he objected, in any way other than by race.

Trial lawyers have come to recognize many of the emerging contours of the Batson doctrine; one of those is that a bare showing of the race of the venireman isn’t enough. A Batson challenge requires a three-step process. The first is a showing that the struck juror was in a cognizable racial group, and that the strike was made on racial grounds. (Subsequent caselaw has extended this coverage to gender-based strikes, too.) If a party meets this requirement, then the second step is for the person exercising the strike to proffer a plausible race-neutral basis for the strike. If that step is satisfied, then the third step permits the original objector to show that the offered basis was pretextual.

There are lessons for both sides in today’s opinion. The first is that if your strike is challenged, you should wait for a ruling by the court on step 1 before you start offering neutral explanations in step 2; that’s because if your initial response to a Batson challenge is to offer that neutral reason, the you are held to have waived any objection to a step 1 finding.

The other lesson is the one that ultimately gets Lightfoot in today’s opinion. You absolutely must ensure a complete record of voir dire. If that means insisting that the judge identify by name each person who raises his or her hand in response to general questions, then do it; if your trial judge is likely to be grumpy, bring a copy of today’s opinion along with you to court, and hand it to his Grumpiness. Even if it’s perfectly obvious to everyone in the room who is doing the talking, it won’t be apparent to appellate jurists, who notoriously attend few trials.

One final note: This decision reverses a divided panel ruling that had been handed down in January. Senior Judge Fitzpatrick, who does not participate in today’s decision, wrote the original panel opinion. The dissenter in January, Judge McClanahan, writes today’s unanimous ruling. That means that someone changed his mind between January and today. That someone is Chief Judge Felton, who today illustrates that you should never stop trying to persuade a judge as long as a procedural mechanism exists. Appellate jurists are fair-minded; they can and do change their minds in cases, but if you give up after the first indication, then you’ll never have a chance to change anyone’s mind.

Experienced trial lawyers know the scene well. The evidence is all in; the jury has received instructions of law and the arguments of counsel; and now the very worst part of the trial occurs: Deliberations. It’s the most helpless feeling for a trial lawyer, knowing that there’s nothing she can do to influence the jury anymore. All she can do is wait. And then, startlingly, a knock comes from the jury room door. The lawyer’s heart leaps to her throat in anticipation of a verdict. The bailiff goes to the door, whispers for a moment, and then emerges to walk back to chambers, pausing along the way to mention to counsel, “They have a question.” Those experienced lawyers, at this point, almost always react in the same way: “Uh-oh . . .”

A jury question forms the heart of today’s ruling in Kennemore v. Commonwealth. The offense is a particularly grisly murder, in which the victim was strangled, evidently raped, and then murdered. The attacker set fire to the room, apparently to hide some portion of the evidence. But the room was too small, and the accelerant (gasoline) too strong; the fire quickly consumed all of the oxygen in the house and snuffed itself out before it could destroy everything. That left lots of evidence, including DNA, to implicate Kennemore in the crime.

Forensic pathologists described the cause of death as suffocation, but were unable to say whether the victim had been dead before the attacker set fire to the room. They left open the possibility that the victim was unconscious, and suffocated when the fire consumed all of the oxygen in the room. That issue became important when the prosecution included a charge of murder during the commission of arson. The question is, Must the victim be alive at the time the fire was set?

That was quite literally “the question,” as posed by the jury. The court and counsel debated over how to answer it – this wasn’t one of those questions that could be answered by a simple, “The jury is directed to rely upon its recollection of the evidence . . .” The trial court proposed to give the jury a short statement that the evidence must show that the killing is “so closely related to the arson as to make it part of the same criminal enterprise.” Kennemore’s lawyer urged the court to tell the jury, in substantially more detail, that it had to determine that the death has to be caused in some way by the arson. The trial court declined that invitation and gave the shorter version (which is based on Virginia caselaw on this legal issue). The jury convicted Kennemore, and this appeal followed.

In ruling that the judge’s explanation was satisfactory, the court cites with approval the language in the felony murder case that gives us this doctrine – Haskell v. Commonwealth, 218 Va. 1033 (1978). It matters not whether the murder occurs “before, during, or after” the felony; if the two offenses are intertwined, then it’s felony murder, as the jury found here. The court also rejects an assertion that the jury’s question constituted a de facto factual finding that the victim was already dead when the fire started. This question, the court points out today, may be the mere “tentative views of a single juror.” Since juries speak only through their verdicts, the question itself is of no legal consequence.

Finally, the court strikes a fine blow for brevity in instructions, approving the trial court’s shorter version of the response to the question. “It is true brevity can sometimes mask incomplete thinking,” the court writes. “But it is more often true that verbosity parades confused thinking.” When I read this, I stood and cheered. (Well, no, not really; but I felt like standing and cheering.) As someone who has preached the gospel of brevity in legal writing for some time now, I am happy to have some suitably quoteworthy legal precedent on this point – even if the advice is pointed at judges instead of lawyers. As the readers of this site know well by now, I believe that shorter briefs are almost always better than longer, and that applies to explanations from the courts, too.

The court discusses the harmless error doctrine in some depth in the final criminal case of the day, Kirby v. Commonwealth. Kirby was convicted of murdering his wife when, aggravated by her perceived nagging, he walked to another room, got out a gun, and then shot his wife at close range. He then buried her body in a shallow grave in his back yard, and fabricated a story about her dying of a heart attack. The police smelled a rat, and started investigating; before long, Kirby was in full confession mode; first to police and then to a videographer who took down the whole story.

At trial, the Commonwealth played the video of the confession, and provided each juror with a transcript of the recorded statement. The jurors watched and listened, and then dutifully handed back the transcripts. But when they went back to deliberate, they called for copies of the transcript again. Told that they couldn’t have them (the transcript was placed into the record, but not admitted into evidence), they then came up with the next best thing: “We’d like to see the video again, please.”

This seems like a normal reaction, and easily enough addressed. But upon reflection, there are problems. Noone else is allowed in the jury room during deliberations, not even the bailiff, so there was noone to run the VCR. The defense lawyer suggested that just about any juror could operate a VCR. Probably true, but what happens if a confused juror inadvertently starts to erase the tape while trying to play it? The trial judge would have none of that, so he flatly told the jury, over Kirby’s objection, that the tape would not be replayed. That’s the issue on appeal.

While it might be an interesting analysis, it will have to await another day, and another case. The court today finds that this evidence would be at most cumulative. I also finds the question immaterial; the purported use of the evidence would be to show that Kirby didn’t premeditate the killing. But undisputed evidence showed that Kirby had planned the shooting for at least a few moments before it happened (he walked into another room to get the gun, remember?), and no minimum amount of time is necessary to show premeditation. The court thus affirms Kirby’s conviction, holding that the trial court’s ruling, even if it were ultimately found to be erroneous, would be harmless.

Workers’ compensation

Food Lion v. Dalton gives us a look at the difference between a change in circumstances and a change in condition, in Workers’ Comp cases.

October and November 2004 must have been an eventful time frame for Dalton, who (1) hurt his foot on October 2; (2) got convicted of aggravated sexual battery on the 28th; (3) returned to work on November 8; (4) got suspended the next day when his employer found out about #2; and (5) got fired on November 29, presumably for the same reason. But Food Lion wasn’t completely without sympathy for its erstwhile employee; it entered into an agreement to pay him continuing disability benefits for the injury. It sought to terminate Dalton’s wage loss benefits due to the for-cause firing, and due to Dalton’s alleged refusal to accept alternate work, but the commission rejected that request.

A year and a half later, with no movement on Food Lion’s request to cut off wage benefits, it sought a hearing to achieve just that. (In fairness, the intervening time was taken up with Dalton’s unsuccessful appeals of the conviction. As a result, he got free room and board, with the compliments of the Attorney General, for ten years.) But the commission refused to set the matter for a hearing, since Food Lion hadn’t presented contemporaneous (i.e., 2006) medical evidence to show a change in condition. It held that the evidence of Dalton’s medical condition back in 2004 was irrelevant to the 2006 request.

Food Lion took its grievance to the Court of Appeals, and today finds succor; the appellate court reverses and remands the case for a hearing on Food Lion’s request to cut off wage benefits. The court notes that this request isn’t about a change in Dalton’s medical condition; it’s his legal condition (using that phrase loosely) that matters. This doesn’t necessarily mean that Food Lion will ultimately prevail, but at least it gets its day in court.