ANALYSIS OF DECEMBER 18, 2007 CAV OPINIONS

[Posted December 18, 2007] The Court of Appeals of Virginia hands down two published opinions today in criminal cases, affirming both convictions. One contains an interesting discussion of the plain view doctrine, while another evaluates just what it means to be able to “confront” an accuser. 

Criminal law

Humans see better in daylight than they do in the dark. No surprise there. But given the contours of the plain view doctrine, is something in plain view if it’s too dark to see it?

In Gibson v. Commonwealth, we find out. One night in October 2004, a Newport News police officer saw a group of people in a “high crime area,” the parking lot of a public housing project that was evidently adjacent to a school. When the officer approached, most of the crowd (stop me if you saw this coming) dispersed before he arrived. But Gibson walked away more slowly than the others, so the officer caught up with him and started asking questions. Asked if he lived in the housing complex, Gibson answered yes. The officer then asked where in the complex Gibson lived. And Gibson, with a wad of marijuana bulging in his pocket, turned and helpfully pointed out where he lived. While his back was turned, the officer shined his flashlight into the wide-open pocket and saw the leafy package.

Gibson’s motion to suppress forms the heart of today’s opinion. The trial court denied it and convicted Gibson; today the Court of Appeals agrees that the motion was properly decided. Gibson argued that something couldn’t be “in plain view” if it took a flashlight to see it; it evidently was much too dark to see without it. That sounds like a plausible contention, . . . until you read the wealth of caselaw cited here that holds, mostly in vehicular searches, that shining a flashlight into a dark but open area isn’t a search. As one such court put it, “The plain view rule does not go into hibernation at sunset.”

The other case decided today, Roadcap v. Commonwealth, explains the contours of the Confrontation Clause in the era of closed-circuit TV. Roadcap stood accused of twelve felony counts of sexual assault of his daughter, who was five or six at the time of the offenses. Four or so years later, at the trial, the girl and her brother (who evidently witnessed some of the assaults) were permitted to testify from a separate room. The two lawyers were in the room with the witnesses; the judge, the jury, and Roadcap stayed back in the courtroom. The two rooms were linked by a two-way closed-circuit television feed, enabling a person in either location to see the other room.

Roadcap had the opportunity to see the children testify, as that camera was trained on the improvised witness box. But the camera in the courtroom wasn’t focused on Roadcap, so the kids couldn’t see him in the monitor.

Roadcap objected to this setup, contending that if the kids couldn’t see him, then he wasn’t actually able to “confront” them as they gave their testimony. The trial court relied on “extensive testimony from mental health professionals” to deny Roadcap’s request that the camera in the courtroom be focused on him.

This, you must admit, is a very interesting issue, especially as it implicates a constitutional right. A cynic might argue that Roadcap was asking the court to substitute the word intimidate for confront in that clause, but being able to look one’s accuser in the eye, and have that glance returned, is an important part of the protection afforded by the Sixth Amendment .

Trouble arrives for Roadcap in the form of Maryland v. Craig, 497 US 836 (1990), in which the Big Supremes held that in cases involving child testimony in sexual cases, a one-way closed circuit link is permissible. In Craig, the witness couldn’t see the defendant at all (evidently there was no monitor where the child sat; only a camera), and the high court had no fuss at all about that. Feeling itself not at liberty to reverse US Supreme Court precedent that’s directly on point, the Court of Appeals affirms the judgment.

A few additional points about this case merit some mention here:

Roadcap argued that the relatively recent (and highly celebrated) case of Crawford v. Washington , 541 US 36 (2004) actually required confrontation. The Court of Appeals sides with several courts in other jurisdictions that have held that “Crawford did not overrule Craig.”

There is a Virginia statute, § 18.2-67.9 , that permits two-way closed circuit testimony. Roadcap tried to argue that this arrangement violated the requirements of that statute, but the Court of Appeals refused to consider the argument under Rule 5A:18 , since Roadcap had not raised that statute at trial. This illustrates that trial objections need to be reasonably specific, but when it comes to citing statutes, they need to be very specific.

The court decides one other principal issue in the case, ruling that the trial court properly excluded testimony about other accusations of abuse, made by the same girl in years past against her biological mother. Roadcap contended that evidence of other false accusations was probative on the issue of the child’s credibility. But he neglected to offer any proof at all that the previous accusations were, in fact, false. There is a very interesting discussion at pages 4-6 of the slip opinion that will be required reading for lawyers who try these difficult cases. The court notes that without a showing of probable falsity, it’s just as likely that the other accusations were true, and thus would relate only to the “unfortunate, but irrelevant, fact that the alleged victim has been victimized before.” Roadcap thus bore the burden of showing the probable falsity of the earlier accusations, and since he didn’t do that, the trial court was correct in its decision to reject the evidence.