ANALYSIS OF DECEMBER 22, 2009 CAV OPINIONS[Posted December 22, 2009] Five more! The Court of Appeals is doing a fine job of clearing off its metaphorical desk, with five published opinions today. Four are in criminal cases, and the appellants bat .250, a decent average but not enough to make the appellate All-Star team.
Today’s opinions hit the wire after a lengthy delay, and because I have a schedule conflict this afternoon, I’ll post what analysis I can now, and I’ll finish tomorrow. Alas, the longest opinion of the day, an en banc ruling on a weapons charge, looks to be very interesting (a majority opinion, plus a concurrence and three separate dissents), and I know I won’t have time to wrap that one up this afternoon. Something to bring you back to the well tomorrow morning, perhaps?
The memories of my youth came flooding back today as I read Hall v. Commonwealth, involving a conviction of escape from custody by force. Don’t get the wrong idea; I was never in police custody during my plain-vanilla suburban childhood, so the memories weren’t of the escape variety. I’m talking about the memories the opinion brought back of the hours I spent playing one of the oldest childhood games around, Tag.
A couple of Danville officers arrived at Hall’s house one December day with an arrest warrant. One headed for the front door while the other circled around back in case the soon-to-be-arrestee decided to make a run for it. Called to the door, Hall actually stepped out onto the porch and heard that he was under arrest. When the officer grabbed his wrist and started to put a handcuff on, Hall had second thoughts and wriggled away, eventually breaking free and running for the hills. He enjoyed a period of temporary liberty before being arrested.
In the ensuing escape prosecution, Hall unsuccessfully argued that he was never actually in custody, so he couldn’t be convicted of escaping from custody. In affirming the conviction, the CAV today turns to caselaw that establishes that an arrestee is in custody when the officer “physically restrains” him. But that phrase is probably misleading, because the court goes on to note that “the slightest touching of an officer to the person of a suspect for the purpose of arrest accomplishes the arrest.”
Personally, I think there’s a big difference between physically restraining a guy and just touching him (although here, the officer actually grabbed Hall’s wrist, so it’s an academic point). That brought Tag to mind – all an officer has to do is touch the suspect, even by diving after him as the felon flees, and the suspect is It. Well, at least he’s in custody. But that’s the way the caselaw clearly reads, the court notes, so the conviction stands.
In one sense, this opinion was painful to read. The court rules that since Howard’s lawyer didn’t object to a continuance of the trial, the length of that continuance doesn’t count against the five-month limit in the Act for bringing him to trial. This isn’t exactly big news; the statute itself provides that failing to object to a prosecutor’s continuance request waives the issue. Ah; but this one has a twist: The continuance came at the trial court’s request, not from a prosecutor.
Today’s opinion doesn’t give much detail about the circumstances of that first continuance, so it might very well have been the prosecutor who gave the trial judge the idea in the first place. But the opinion mentions clearly that the defense didn’t object, and the CAV rules that the duty to object isn’t triggered only when the prosecution makes the motion; it applies to a sua sponte continuance, too.
Howard had another card up his sleeve for the appeal. He noted that the five-month period in the Speedy Trial Act is only one source of a defendant’s rights; there’s also a provision in the Constitution of Virginia. It doesn’t contain a specific five-month limit, but he argues that it serves as an independent basis for a dismissal.
This looks promising for about four seconds, until you learn that Howard’s constitutional argument is based on missing the five-month deadline set out in the statute. Since the court has just finished ruling against him on the statutory deadline, it isn’t about to create a new, shorter cutoff point based on a nonspecific constitutional provision, so the convictions are affirmed.
Brailey v. Commonwealth is another opinion that is decidedly un-fun to read. It’s the story of a former employee of the Department of Taxation who left the public sector to earn a living as a preparer of income tax returns. The evidence in the case established that he took money from several taxpayers, then put together returns with little or no basis in reality for the taxpayers to sign and file. He even counseled them to list their own names as the preparers, so his name wouldn’t be on the forms.
The statute criminalizing the preparation of false tax returns isn’t widely cited, so that gets this opinion published. The court rules today that the prosecution doesn’t have to prove that a defendant prepared the returns; just that he “aided, counseled, or advised in the preparation” in some way. The court accepts guidance from federal caselaw interpreting the US Tax Code counterpart to this statute, so attorneys handling similar cases should look to federal law to fill out the sparse treatment in Virginia case reports.
There’s also an interesting ruling on the denial of a continuance. On the morning set for trial, Brailey’s lawyer asked the court for a continuance so Brailey could get a new lawyer. The reason, it appears, was what appears elsewhere in divorce cases as “irreconcilable differences.” The client and the lawyer just couldn’t get along; or so the lawyer implied. Pressed for more detail, the lawyer responded that disclosing the reasons in open court would prejudice the defense, once the prosecutor heard what the reasons were.
Interestingly, the trial judge agreed to hear the reasons in a private, off-the-record conversation with the defense lawyer. Perhaps this is common in situations like this, but I have never heard of such a thing. The judge listened to the lawyer’s private explanation and then denied the continuance, noting that there were 14 prosecution witnesses at the ready, and the case had been continued at a defense request before.
Brailey appealed this ruling, but if you’ve been paying attention at all to this web site, you know what’s coming next: The appellate court rules that it cannot evaluate the issue because the appellant didn’t put the proffered reasons into the record. That would leave the CAV to speculate on what those reasons were, and on whether Brailey was prejudiced (that’s one of the essential elements in a continuance analysis). In this instance, the source of the impasse was too-well-kept a secret.
The real fireworks, at least as far as disagreement among the judges is concerned, arrive in McMillan v. Commonwealth. As I noted above, it’s a highly fractured en banc decision that generates five separate opinions from the eleven judges on the court.
The subject matter is one we have visited a few times recently – the statutory prohibition of possession of a concealed bladed weapon. The statute’s ancestor goes back to the middle of the Nineteenth Century, and the language in it stems from that time. Indeed, that’s part of the problem; it prohibits, among other things, the concealment of a dirk or a bowie knife. Do you know what a dirk is? Can you form a picture of it in your mind without looking it up? Well, neither can I. I know what a bowie knife is, thanks to the John Wayne movie, The Alamo; but I doubt there are too many people who carry those around these days.
McMillan was involved in a high-speed chase that ended when he crashed his car into a state trooper’s car. That got him indicted for and convicted of attempted capital murder, and that conviction isn’t at issue in today’s opinion. When the trooper checked McMillan’s car after the arrest, he found something called a scuba knife attached to the inside of the driver’s door. McMillan told him that he carried the knife for protection.
There’s a picture of the knife at two locations (pages 15 and 20) in the slip opinion, and for what it’s worth, it looks fairly intimidating. But it obviously doesn’t look at all like the bowie knife that Richard Widmark wielded in the movie. (You can see a picture of that here, while it was temporarily on loan to the Duke.) The question for today’s decision is whether it is one of the enumerated objects in the statute (including dirks and bowie knives) or else a “weapon of like kind” to something on that list.
This was the core of the debate in the recent decisions of Farrakhan v. Commonwealth (2007) and Thompson v. Commonwealth (2009), both decided by the Supreme Court of Virginia. Farrakhan was carrying a kitchen knife, while Thompson had something called a butterfly knife. In both cases, the Supreme Court ruled that the knife didn’t meet the definition, so it reversed the convictions.
Today’s majority opinion, authored by Judge Powell, finds that the scuba knife isn’t one of the enumerated list. It then proceeds to the question of whether it’s a “weapon of like kind.” That requires two separate steps: First, decide whether it’s a weapon at all, and if it is, then decide if it’s “of like kind” to one of the prohibited items. Farrakhan fell on the first of these steps, while Thompson required going all the way to the end of the analysis.
The majority holds that the scuba knife isn’t a weapon at all, so that ends the inquiry with a reversal. Judges Petty and Alston file a concurrence that makes a fairly compelling case for legislative revision of the confusing statute. (Theoretically, that revision could supply clarity based on the realities of the Twenty-First Century; obviously, scuba knives were never conceived back in 1849, except perhaps by this guy.)
And now it’s time to line up the dissents. Judge Kelsey (joined by Judge McClanahan) starts the parade by chiding the concurrence for meddling in matters involving whether a law should be amended or not. In his view, jurists have no business telling legislatures when statutory changes ought to be made. He also finds that the majority takes too narrow a view of whether this is a weapon or not, noting that this element can be proved either by showing that the knife is “designed for fighting purposes” or that it is commonly understood to be used in that way. He urges that McMillan’s own statement, that he carried the knife for protection, furnishes support for this conclusion. (I just can’t subscribe to this reasoning. I doubt that a single person’s subjective motivation can ever be probative of whether a given object is “commonly understood” to be a weapon.)
Judge Humphreys next assails the statute’s lack of clarity, as Judge Petty had done, but he concludes that the evidence here supports the conclusion that the scuba knife is both a weapon and of like kind to a dirk or bowie knife. He argues that this isn’t something like an “innocuous household knife,” and observes that no matter how useful such a knife might be to a scuba diver, McMillan had attached it to the door of his car, “where no denizen of the deep was likely to be found . . ..” (As with many of the zingers we encounter in appellate opinions, this one is in a footnote.)
Finally, Judge Beales writes to agree with Judge Humphreys on the analysis of the weapon-of-like-kind issue, and to agree with Judge Kelsey that McMillan’s subjective intent was probative of the status of the knife as a weapon.
This is a lot to disentangle, and perhaps the balkanized decision today is the best argument in favor of Judge Petty’s view that this statute badly needs updating. I was a bit surprised to find that today’s majority didn’t refer to something I found in the original panel majority opinion (also written by Judge Powell): A citation to a treatise on scuba diving that supports amply the conclusion that the knife is a tool, not a weapon. Given the strict construction applicable to penal statutes, I found that now-abandoned quotation to be fairly compelling.
The trick, if this statute is to be overhauled, is how to do it without criminalizing perfectly legitimate used of bladed implements. Obviously, just about anything could be used as a weapon, so casting too wide a net would have unintended consequences. Indeed (stepping aside from the bladed-weapon statute for a moment), I once worked on a death case down here in Tidewater in which the murder weapon was a bowling ball. None of us would consider that to be a weapon, but the victim was just as dead as though she had been shot or stabbed. And as Judge Petty points out, do we criminalize the carrying of even a bowie knife by a deer hunter who brings it with him solely in order to field-dress his quarry? That, he observes, “would come as more than just a mild surprise to every sportsman in the Commonwealth.”
Personally, I don’t think there’s anything wrong with a judicial opinion that signals to the legislature that a statute would benefit from revision, so I disagree with Judge Kelsey that it’s wrong to point out the problems with this now-dated statute. The legislature is free to disregard that call for clarity, of course, and the difficulty of the task (illustrated in the preceding paragraph) might well lead the General Assembly to punt the issue back to the courts.
Both sides scored a lot of points for jabs in Dillon Construction v. Carter, but in the end, the employee connects with enough to win a unanimous decision. The issue is whether Carter was or was not an employee of the company at the time of his on-the-job injury. He unquestionably worked as an employee for a time, but decided in 2006 to try his hand at running his own business in his chosen profession, carpentry.
That didn’t go so well, and late in the same year, he asked to come back to work for the company. Eight months later he was injured in a fall. The company resisted his comp claim on the basis that he was an independent contractor, but the commission saw it otherwise and awarded benefits.
On appeal, the company has several of what you have to agree are, at least at first blush, solid points. For example, the owner of the business usually told Carter at the beginning of a work day what project to work on; but he never specified how Carter was to do the work. Attorneys handling employment cases know that the power to control the work is the paramount consideration in this analysis, and it looks as though this ostensible employer isn’t doing that.
Ah, but it’s the power to control, not the exercise of that power, that matters. And the court notes today that there’s nothing in the record that’s inconsistent with the possession of that power by the company.
Next jab: Carter specifically declined to have taxes withheld from his pay, electing to pay them himself. That sounds an awful lot like something that an independent contractor would do. But the court rules today that that decision isn’t dispositive of the question. It finds more persuasive the fact that Carter got hourly wages, punched a time clock for his eight-hour shifts, and primarily used tools provided by the company.
One last try at a haymaker: The company stressed that it always regarded Carter as an independent contractor, from the time he returned to the fold late in 2006. That’s all well and good, the court rules, but it would have been nice to tell him that. The record contains nothing to establish that the company conveyed to Carter its perception that he was on his own.
In the end, perhaps the most powerful reason that Carter wins this appeal is that he was the appellee. Since it’s reviewing a mixed question of law and fact, the appellate court affords deference to the commission’s factual findings (it reviews the legal rulings de novo, of course). And in that context, all the court has to find is that there was credible evidence in the record to support the commission’s factual findings. This is another illustration of the maxim that the best appellate strategy is usually to win the case below.