ANALYSIS OF DECEMBER 16, 2008 CAV OPINIONS

 

[Posted December 16, 2008]  The Court of Appeals engages in a bit of desk-clearing today, handing down five published opinions.

 

Domestic relations

Equitable distribution of marital assets proves to be more art than science in today’s opinion in Rinaldi v. Rinaldi .  Wife is an attorney; husband worked as a lab technician at a hospital for a time until he decided to start a construction business.  Wife brought in most of the money during the marriage, while husband spent a fair amount of that time smoking marijuana.

 

He had, however, contributed a substantial amount of money from an inheritance, plus the house he owned before the two embarked on their course of wedded bliss.  Part of the inheritance went toward the purchase of some riverfront property.  Domestic relations practitioners know where this is going:  The trial court will have to decide how to allocate the parties’ respective contributions (financial and otherwise) to the marriage in order to make an equitable distribution award.

 

The fuss here is whether the trial court should have used a straight Brandenberg analysis, or else applied the CAV’s 2006 Keeling ruling to the riverfront property.  The trial judge took the latter approach, and today, the Court of Appeals affirms that.  The recurrent theme throughout this opinion is stated thusly:  “[A] court is not required to apply any particular formula to trace the separate and marital property interests and to calculate the earnings on those respective interests so long as it reaches an equitable result.”  Indeed, there is no requirement that the analysis should start with a 50-50 split of property; the trial court is free to decide where to draw these lines based on a holistic view of the marriage.  And since the appellate court reviews the trial court’s award under the deferential abuse-of-discretion standard, you’d better win this one in the trial court, because it will be awfully hard to can-opener such a ruling if it bears a reasonable relation to reality.

 

One other ruling might strike some casual readers as odd – the wife gets a partial award of attorney’s fees, despite the fact that she has by far the greater income.  Income disparity isn’t key to this analysis; instead, the court looks to things like ability to pay, relative fault, and an unwarranted increase in litigation costs.  The CAV finds that this ruling, too, was well within the trial court’s discretion.  It declines to award appellate fees, however, since the husband presented at least a plausible position on appeal.

 

The next case offers a stark contrast in at lest one respect – the husband emphatically improved his financial position while the divorce proceeding was pending.  The decision is West v. West , which probably came painfully close to being unpublished.  That’s because I only see one potentially significant issue on which the ruling breaks new legal ground.

 

Nevertheless, the Wests were married for 15 years, and had two children.  At the time they separated, the husband made about $32,000 a year.  But seven months later, he had apparently changed jobs, if not careers, and was making $69,000.  The trial court had entered pendente lite child and spousal support awards based on the earlier figure, but when it entered a final decree, it essentially stuck with the amounts of the pendente lite awards – $500 for the mother and $200 for the child.  Both parties appealed.

 

These two issues produce different results in the appellate court.  The court today affirms the spousal support award, noting that the wife wanted a support amount that would maintain her standard of living during the marriage.  Ordinarily that’s a legitimate request; but here, the evidence was that the couple lived beyond their means by getting financial help from husband’s parents.  The trial court thus rejected a request that would essentially have given the wife support from her in-laws and the appellate court affirms that exercise of discretion.  This is probably the reason why today’s ruling is published.

 

Child support is another matter; that has to relate to the parties’ actual income levels.  Since the court had awarded $200 a month back when Dad was bringing home $32K, it had to recalculate to account for Dad’s significantly higher income.  And that’s what the court does today, remanding for that one limited issue.

 

Criminal law

Too much of a good thing can be a problem, as we see in Williams v. Commonwealth , involving convictions on larceny and conspiracy charges.

 

An enterprising thief named Smith decided to break into a couple of storage trailers early last year.  The trailers belonged to a company called Old Dominion Metals, and his target was the suddenly-valuable commodities of copper and brass.  You may have read about thieves running rampant around suburban neighborhoods to steal the copper tubing from Harry and Mrs. Homeowner’s heat pump.  Smith had the same idea, but figured he’d go straight to the mother lode, instead of hitting one house at a time.

 

He got in, and found a couple of big Rubbermaid containers just stuffed with the stuff.  He lugged them out of the trailers, and then discovered the flaw in his plan:  That stuff is heavy.  He wasn’t exactly going to be able to hoist the boxes up onto his shoulders and stroll away.  What he needed, was a wingman.  He got on the phone and called his pal Williams, blithely asking him for a favor in picking some stuff up.  Williams was happy to oblige; he arrived shortly thereafter, at which point the two men loaded the boxes into Williams’s truck, and drove off.

 

As often happens, Williams was arrested on an unrelated charge.  A detective came to speak with him, and gave him Miranda warnings, after which Williams spilled everything, including the fact that Smith didn’t exactly have a bill of sale for the metal.  Indicted for the offenses, he got a lawyer, who moved to suppress the confession on the grounds that the detective had been a little sloppy with the final Miranda warning.  You’ve heard the catechism often enough on television, so here’s the last part of the version Williams got:  “If you cannot afford an attorney, the Court will consider appointing an attorney for you.”

 

Williams argued that “consider appointing” isn’t the same as “appoint,” so the confession had to go.  The trial court rejected that motion and today, the CAV affirms that ruling.  It holds that, contrary to what you might think, a Miranda warning doesn’t have to be recited verbatim from an episode of Law & Order; “fully effective equivalent” language is perfectly satisfactory.  The court finds the subtle change to “consider appointing” to be descriptive of the court-appointment process; unquestionably, a judge has to “consider” whether to appoint a lawyer, depending on whether the accused really is indigent.

 

There’s one other issue on today’s opinion.  Williams argued that he couldn’t be convicted of conspiracy to commit larceny, since that requires pre-planning.  And by the time Williams arrived, his good buddy Smith had already completed the theft.  This is an intriguing argument, and it might offer some promise.  But the Court of Appeals utterly destroys it with this short sentence:  “Larceny is a continuing offense.”  That is, a thief keeps on committing the offense every time he moves the property, so when Williams arrived with his getaway vehicle, there was plenty of time to plan things from there.

 

Smith’s mistake, it seems, was in getting too greedy.  If he had just made off with five or ten pounds of the metal, he might have gotten away clean, and we never would have gotten to meet Mr. Williams.  But Smith’s desire to make a lot of money instead of a little at a time dooms the poor wingman.  And we never even find out how much his cut was for supplying the truck.

 

The next criminal case is Pearce v. Commonwealth .  Pearce was among a group of pals who were clearly drinking in public one evening as a police car rolled by.  The officers got out and started to ask questions.  After some furtive movements, the officers decided to pat down the participants.  While they were doing that, Pearce took off.

 

This is ordinarily a bad sign.  It gives even normally suspicious officers a good reason to chase you down, and that’s what happened here.  Pearce threw a dark object away during the chase, but thus lightening his load didn’t enable him to get away.  The officer later found the thrown object; it turned out to be a firearm, and Pearce turned out to be a felon.  My faithful readers know that possession of a firearm by a convicted felon is itself a felony.

 

During the trial, Pearce took the stand – always a risky proposition for anyone with a felony history.  He testified that he never threw anything.  On cross, and over Pearce’s objection, the prosecution got him to admit that he had been intoxicated, and was under the influence of illegal drugs at the time.

 

The issue in the case was whether the evidence of intoxication and drug use should have been admitted over Pearce’s objection.  He contended that it was “other crimes” evidence, and thus inadmissible under the Supreme Court’s McGowan ruling last year.  The Commonwealth responded that it was only offering the evidence for the perfectly permissible purpose of impeaching Pearce’s testimony by showing that his perception and recall were impaired.  The trial judge let it in, and the jury found Pearce guilty.

 

The Court of Appeals finds today that evidence of other crimes isn’t automatically inadmissible; it’s only inadmissible if it’s only offered for the purpose of showing that the defendant was predisposed to commit the crime of which he’s charged.  That wasn’t the case here.  The court distinguished McGowan by noting that the evidence related to the immediate scene of this crime, not a remote circumstance as Ms. McGowan had faced.  The court adds a second ruling, that Pearce can’t challenge the trial court’s failure to give a limiting instruction (something to tell the jury not to consider the evidence for any other purpose), where he didn’t offer one at trial.

 

In this last regard, Pearce’s appellate lawyer made a sensible ends-of-justice request, asking the appellate court to consider the argument even though it had not been preserved at trial.  The effort fails, as the court decides that the exception doesn’t apply.  But the analysis of this issue, at page 9 of today’s slip opinion, is helpful guidance for appellate practitioners on what will and what won’t justify the application of that rule.

 

We get our only disagreement of the day in Johnson v. Commonwealth .  Johnson was in court in October 2006 when he was convicted on unspecified charges.  When the trial ended, Johnson, instead of leaving peacefully, went after the prosecutor, striking him in the ear with a fist.  The blow caused both men to fall down.  The prosecutor sustained a concussion and required four stitches to close a couple of cuts in his ear.

 

This affair, of course, produced an entirely new set of criminal charges for Johnson to answer.  This time, the charges were malicious wounding and obstruction of justice.  Johnson didn’t help his cause when he bragged of his conduct, saying he was proud of it and indicating that he’d do it again if given the chance.  (The aforementioned boasts were made either to or in the presence of several law enforcement officers.)

 

Jonson was disruptive during both pretrial motions and the trial itself.  He felt at liberty to express his dissatisfaction with the way things were going when rulings went against him, even calling the trial judge by name – “Bradley,” on at least one occasion, and “Miller” several times.  (Aside from the startling informality of calling the judge by name, this behavior also seems odd because the judge was the Hon. Herman A. Whisenant, Jr.  If Johnson wanted to get cozy with the trial court in this way, he didn’t even come close.)

 

Johnson’s lawyer understandably moved for leave to withdraw.  At a hearing on that motion, the trial court mused whether a competency evaluation would be a good idea.  The lawyer (who did not get to withdraw) agreed that that might not be a bad idea, but he didn’t move for one.  The court decided to proceed to trial and see how things developed.

 

They didn’t develop well.  As I’ve already disclosed, Johnson spoke his mind during trial, in the sentencing phase (he behaved himself commendably during the guilt phase), calling his victim a liar as the victim testified.  Johnson testified in his own behalf, and apparently did so perfectly lucidly, over eight pages of transcript.  The jury sentenced him to 16 years on the two charges.

 

On appeal, the court considers three primary issues.  The first is Johnson’s contention that the court should have gone ahead and ordered that competency exam.  This one is an uphill battle, because, as noted above, his lawyer hadn’t moved for it.  The CAV analyzes caselaw from several jurisdictions and concludes that the trial court didn’t abuse its discretion in refusing to order it.

 

The second issue is where today’s controversy comes in.  A majority of today’s panel finds that Johnson’s actions met the requirements for malicious wounding, instead of the lesser charge of assault and battery (of which there would be no question of Johnson’s guilt).  The problem here is, as the majority notes, no Virginia court had ever found the requisite element of an intent to permanently injure, based on a single punch.  Multiple blows, yes; especially when combined with a statement like, “this time I will finish you.”  (That was the fact pattern in a 1945 SCV ruling.)  But the Supreme Court has ruled that just hitting someone with a fist, without more, isn’t enough to constitute malicious wounding.  The dissent, authored by Judge Humphreys, points out that while a permanent injury is one possible consequence of a single punch, it is not a “natural and probable consequence” thereof.  The majority, written by Judge Haley and joined by Judge Beales, adds together the unprovoked nature of the attack, the significant injury, the fact that the blow was so strong that even Johnson fell down, and Johnson’s subsequent boasting, and finds that the sum is enough to enable the jury to infer intent to permanently injure.

 

The final ruling is almost anticlimactic; the court rejects Johnson’s contention that he was denied Brady material, holding that the challenged information was simply consistent with the testimony at trial.