ANALYSIS OF DECEMBER 23, 2008 CAV OPINIONS[Posted December 27, 2008] Last week, while I was out of the office, the Court of Appeals continued its relentless pace of handing down opinions. On Tuesday we got three published rulings, all in criminal cases.
Ordinarily in cases involving Miranda issues, the defendant tries to show that he wasn’t given proper Miranda warnings, so as to justify a motion to suppress a confession. In Caprino v. Commonwealth, a defendant finds that the opposite circumstance dooms his appeal.
Caprino was convicted of three offenses, including second-degree murder. During the trial, he took the stand to testify that he acted in self-defense. In rebuttal, the prosecution called a detective for the purpose of establishing that the self-defense story was a recent fabrication. The prosecutor asked the detective if he had spoken with the defendant. “I had a chance to interview Mr. Caprino,” came the answer, “and he declined to speak with me.”
Why is this a big deal? Because US Supreme Court precedent forbids the prosecution from telling the jury that the defendant exercised his constitutional right to remain silent. Basically, if a prosecutor argues that the defendant “lawyered up” (there’s Law & Order speak for you), it’s a mistrial. If there is a price to be paid for exercising one’s constitutional right, then that right has been defeated, or at least watered down.
But this promising argument falls flat for a simple reason – no one testified that Caprino received a Miranda warning. And related caselaw, also from the Big Supremes, establishes that in the absence of warnings, that doctrine doesn’t apply. Essentially, the warnings constitute an implicit promise that exercising the right to remain silent won’t be used against the defendant. (“If you give up the right to remain silent, anything you say may be used against you.”) But where an arrestee doesn’t receive those warnings, there is no such implicit promise, so there was nothing wrong with the detective’s answer.
This case turns on a very fine judgment call, but in my view, this result is the correct one. And in case you’re wondering how any American could get by in this society without knowing that he has the right to remain silent, you’re probably right (except, perhaps for some recent immigrants). But just because Caprino may have already known about this implicit promise doesn’t change the outcome. After all, if we assume that everyone already knows the litany, then it wouldn’t be necessary to give them in the first place, right?
The next criminal case is Jones v. Commonwealth, involving weapons possession convictions. This is the latest in a recent series of stop-and-frisk cases, the grandsire of which is Terry v. Ohio, 392 US 1 (1968). As my readers know well, a valid Terry stop requires a reasonable, articulable suspicion by a police officer that “criminal activity is afoot.” (I’ve always loved the Sherlockian connotations of that word, with its hint of intrigue.) If no such suspicion exists, then a citizen who encounters a police officer can turn his back and tell him to buzz off.
That’s sort of what Jones did. He and a couple of companions were standing near a sidewalk one mid-morning in a section of Norfolk that is, we are assured, a “high-crime area.” Two officers on routine patrol approached the trio. Nobody was doing anything wrong, but when Jones saw the gendarmes approaching, he turned on his heel and walked “briskly” toward the door of a townhouse, 15 feet away. As he walked, he clutched his right side. One of the officers asked him to stop, but Jones, no doubt having read up on Terry stops, ignored him and kept walking. The officer grabbed Jones by the arm, stopped him, and patted him down for weapons.
Bingo; Jones was carrying a pistol in his waistband. And since he was a convicted felon, it was off to the police station with him. Jones’s attorney unsuccessfully moved the trial court to suppress the evidence, citing Terry. The trial court reasoned that Jones’s presence in a high-crime area, and his “flight” from the officer, satisfied the articulable suspicion requirement.
On appeal, a unanimous panel of the Court of Appeals reverses this holding and remands the case for a new trial, if the Commonwealth wants to pursue it. (Trust me; with no gun to offer in evidence, this case will go nowhere on remand.) The court holds that neither of the two circumstances, standing alone, is enough to justify an objective articulable suspicion, and that the combination of them won’t suffice, either.
One bit of editorial comment here: I am a former local government attorney, and I handled my share of misdemeanor prosecutions (though not felonies like this one). Crooks would be unwise to look to me for succor. But I have always been uncomfortable with the concept that one’s presence in a high-crime area can help to supply an articulable suspicion for a Terry stop. The Supreme Court of Virginia recently reaffirmed that those who live in or travel through high-crime areas don’t forfeit their constitutional rights, including the right to be free from unreasonable searches and seizures. To hold otherwise would render any such person a second-class citizen who is more susceptible of arrest than someone in a peaceful suburban neighborhood, doing exactly the same thing.
The third criminal decision is a whopper: Crawford v. Commonwealth implicates the US Supreme Court’s landmark decision in the coincidentally named Crawford v. Washington. The Virginia Crawford got himself convicted of the capital murder of his wife, plus related charges of rape and abduction with intent to defile (those were the predicate felonies that made the murder capital), along with firearms charges and a single count of grand larceny.
At trial, the court admitted into evidence an affidavit the wife had executed in support of a previous request for a protective order against her husband. The affidavit set forth details of incidents in which the husband had threatened or assaulted her, including one allegation of rape. It’s here that the Washington Crawford comes into play; this document is unquestionably testimonial hearsay – so the CAV panel unanimously rules in the Virginia case – and the court finds that since it includes details of the specific types of crimes that the husband was charged with here, its admission into evidence wasn’t harmless error.
Now, just when you’re thinking this is a relatively uncomplicated remand for a new trial without the affidavit, the whole thing blossoms into a complicated sufficiency analysis. The husband did raise sufficiency of the evidence to prove his guilt on all charges. If he’s right, then a simple remand for a new trial would violate the bar against double jeopardy. So the court, having found that the affidavit was improperly admitted, begins the laborious process of evaluating the evidence (ironically including the affidavit) to decide whether the Commonwealth proved its case in the first place.
In several particulars, that evidence fell short, the CAV rules. The physical evidence established that the husband and wife engaged in sexual conduct, but there was nothing to show whether or not it was consensual. (The parties had been trying to reconcile in the days before the murder, so it’s quite possible that they were together amicably before things got ugly.) And the abduction with intent conviction falls for much the same reason. Since those two predicate felonies are dismissed, there is no basis on which to make the murder capital, so that conviction is reversed as well. But the husband doesn’t get off completely; he didn’t contest the sufficiency of the evidence to convict him of non-capital murder, so he can and probably will still be retried on that charge.
Even now, the case doesn’t get uncomplicated. Having ruled that the out-of-court statements in the affidavit violated the Confrontation Clause, the court turns to other out-of-court statements (testimony by some of the wife’s co-workers), and finds nothing at all wrong with their admission. The statements included reports by the wife that she was afraid of her husband, and that she selected the site for her desk so that it had a view of the parking lot – the better to see if the husband was coming to get her, so she could get away from him. The trial court had admitted the testimony under the state-of-mind exception to the hearsay rule, and the CAV affirms that ruling, so the statements will be admissible upon retrial. In a tantalizing footnote, the court observes that the husband had not raised a Crawford objection, and didn’t contend that the statements were testimonial hearsay. We are left to wonder, then, whether a Crawford objection would have succeeded here where a plain-vanilla hearsay objection does not.
My best guess as to that last question is that the statements probably aren’t testimonial, so a cite to Crawford wouldn’t have helped. Still, it’s always advisable to mention the Confrontation Clause in an objection like this; the analyses are not identical, and the Crawford v. Washington doctrine only applies to Confrontation challenges, not to ordinary hearsay claims.
There’s one key ruling here on a relatively obscure point of evidence. The Commonwealth had argued that the husband should not be permitted to raise his Crawford objection, because he killed the wife. This is the forfeiture-by-wrongdoing doctrine, which prevents a defendant from benefitting by killing his victim in order to prevent her from testifying. The court finds that there is no proof in the record that the husband acted with such an intent, so it declines to apply the doctrine. This ruling is important because it clarifies that this doctrine requires a specific intent, and is not applied simply because a murder has the effect of preventing the witness from testifying.
This is a very significant opinion that will reward review in a number of regards.