ANALYSIS OF DECEMBER 27, 2007 CAV OPINIONS

[Posted December 28, 2007] On Thursday, as I spent the day honing a brief for filing today, the Court of Appeals presented criminal practitioners with a bounty of nine published opinions. That’s an extraordinary number, though I don’t know whether it’s a record (the average is about two per week). I will post analysis of these seven decisions over the course of the weekend, with my apologies for the delay in getting this analysis to you.

Criminal law

There is one en banc decision, that of Moore v. Commonwealth . Moore was charged with possession of drugs and a weapon as a result of a traffic stop. He moved to suppress based on a want of articulable, reasonable suspicion, since the only reason for the stop was a “peeling inspection sticker on the windshield.” (You have to admit, as the basis for suspicion of the commission of a crime, that’s pretty darned thin.) The trial court overruled the motion and ultimately convicted Moore of the crimes.

But on appeal, Moore’s lawyer chose to phrase the question thusly: “Did Officer Bryan have probable cause to make a traffic stop . . .?” Note the difference – the petition for appeal argues that the officer didn’t meet a higher burden than he actually had to meet, since reasonable suspicion is a lesser standard than probable cause.

In response to this error, the Commonwealth merely pointed it out on brief, corrected it, and went on to address the case under the correct standard. The CAV panel that decided the case back in February went along with that, and ultimately went along with Moore, reversing his conviction. But the court granted en banc review, thus vacating the panel’s reversal.

On Thursday, a majority of the court affirms the conviction, upon grounds the parties hadn’t anticipated. It held that since Moore stated the question in terms of the wrong legal standard, it could not consider the correct legal standard. Essentially, the questions presented section of a CAV brief, like assignments of error in the Supreme Court, fix the contours of the appellate dispute. Just as a litigant has to plead a given theory of recovery in order to get to a jury trial on that issue, an appellant is limited in the CAV to the questions he chooses to present. Moore made a mistake in phrasing that issue, and that mistake proves fatal.

The decision gives us an interesting view of the judges’ perspective on pleading in the appellate court; there are no fewer than four opinions, broken down according to the judges’ views of just how exact one needs to be in crafting a brief. (Note that this is an imperfect indicator of how those judges would view the separate question of the specificity of trial objections, which require on-the-spot thinking, unlike the more laid-back process of crafting appellate briefs.) Judge McClanahan leads the specificity hard-liners, joined by Judges Frank, Clements, Kelsey, McClanahan, and Haley. Judge Elder, speaking for the chief judge and Judge Beales, dissents, contending that it was perfectly obvious to everyone in the room what legal standard applied and was being argued. Judge Humphreys writes a concurring opinion that appears specifically directed at refuting the dissent; he argues that the only way for the court to maintain its appellate integrity (I’m paraphrasing loosely here) is to apply the rules of court exactly as they are written, and that compels an affirmance. Finally, Judge Petty agrees with the dissent that the issue shouldn’t be foreclosed by the imperfect phrasing of the question, but concurs in the result, finding that the officer actually had a reasonable, articulable suspicion, so the motion to quash was correctly decided.

Did you follow all that? If so, you now have a fair barometer on how the judges line up on the important issue of just how meticulously you have to pay attention to the phrasing of your brief. Obviously, the more meticulous you are, the more judges you’ll catch in your net. This is why most appellate lawyers spend a fair amount of time writing their briefs, and a great deal more time than that in editing them.

When, exactly, does a criminal defendant who pleads guilty move lose his status of being “charged with a crime”? It isn’t before sentencing, we learn today in Bowling v. Commonwealth , a case involving DUI and possession of marijuana with intent to distribute. The latter charge is a felony, so a failure to appear in court is a separate felony. Bowling got nabbed for those offenses way back in the Reagan Era, and came to court with his lawyer to plead guilty. The judge ordered a presentence report and set sentencing two months out. But on that date, Bowling was on the lam.

A lot can happen in seventeen years, and the opinion is silent on Bowling’s escapades in the meantime. He may have found gainful employment, fathered a child or two, authored a book on appellate advocacy, maybe even run for Congress. But by 2006, he decided he’d had enough; he turned himself in, and then faced a jury trial on the felony of failing to appear. The jury got him, and imposed a one-year term of incarceration. Stung by this loss, he appealed, and raised two arguments. First, he argued that the Commonwealth didn’t prove that his failure to appear was willful. On its face, this appears implausible – showing up seventeen days late, maybe; but seventeen years? But the court doesn’t reach this question, finding it to be procedurally defaulted in the trial court. Bowling, it turns out, didn’t challenge the sufficiency of the evidence at trial in a motion to strike on this point, so he can’t do so now, on appeal.

Bowling’s second challenge to his conviction is based on the current version of the felony failure-to-appear statute, Code § 19.2-128 (B). He contends that once he pleaded guilty, he was no longer a “person charged with a felony offense,” so he couldn’t be convicted of violating that section.

One thing that did happen in those seventeen years (other than the whole Bush-Clinton Era) is that the statute got amended. The Court of Appeals finds that it has to use the 1989 version of the law, and under that one, the position urged by Bowling produces an anomalous result. That is, persons who have been charged, but not yet convicted, and those who have been sentenced, but released on bail, are subject to criminal penalties for failing to appear; but someone who takes the simple step of pleading guilty, with sentencing to follow, can waltz off without fear of prosecution. Without more, you know how the court is going to resolve that question. Bowling’s conviction, and his year of free room and board, are thus affirmed.

The court makes a number of very interesting rulings relating to the marital privilege in Carpenter v. Commonwealth . In the early 1990’s, Carpenter sexually abused his teenage stepdaughter. Over a decade later, his wife (the victim’s mother) found out about the crimes and confronted him, at which point he more or less acknowledged that the accusation was true.

Believing that “more or less acknowledged” might not be enough in court, the police arranged with the wife for her to tape record a conversation with her husband, in the hopes that he might blab in more detail. The wife set up the recorder, and Carpenter obliged by blabbing with convincing specificity. The tape was admitted at trial over his objection.

Most lawyers know about the marital privilege, which permits one spouse to prevent the other from testifying about conversations related to the marriage. The rub here is that after the confession, but before trial, the General Assembly amended the statute to provide that the privilege could not be asserted in cases involving accusations of crimes against either party’s child. The trial court relied on the amended version of the statute in admitting the tape into evidence.

This raises a whole host of issues about changes in statutes before trial. It has long been the law in America that Ex Post Facto laws may not be used to convict criminal defendants, so that issue takes center stage in Thursday’s opinion almost immediately. The Court of Appeals finds that there is a difference between laws that change what conduct is criminal, or what evidence is sufficient to convict, on the one hand, and those that modify what evidence is admissible at trial on the other. The first category runs afoul of the Ex Post Facto bar, but the second does not, and the tape fell into the second category.

The court also dismisses Carpenter’s Due Process and statutory challenges to the admission of the tape, and then turns to an intriguing Fifth Amendment argument. Citing “the ancient common law understanding that a husband and wife are a single person,” he contends that the wife’s disclosure of the statement constitutes “self-incrimination” (of him, of course). Aside from the fact that such a legal fiction is rapidly disappearing from American jurisprudence, the court notes that if Carpenter is right about this, “then no spouse could ever testify against the other spouse in any [criminal] case, for any reason,” since every such statement would be “self” incriminating. If that were true, then why would we need a spousal privilege statute at all?

Of the several interesting cases handed down on Thursday, this one seems to be the likeliest to inspire Supreme Court scrutiny on further appeal. We’ll see in a few months.

We now shift gears to what must have been a very interesting November 2005 meeting of the Roanoke City Council, at which it considered whether to renovate Victory Stadium. No fewer than 54 speakers signed up to address the body, at least one of whom was apparently itching for a fight, political or otherwise. The result is Howard v. Roanoke , which, assuming the description is accurate, must have set a new low for immaturity in a political arena.

We know that Howard was hunting trouble because, before the meeting even began, he went up to a police officer, who was there for security, and asked what he was doing there. Howard also asked if the officer ever had to ask people to leave the meeting (hint), and what happened if they refused to leave when ordered (hint, hint).

Howard took his turn at the lectern, but that’s not where the fireworks started; it was only when another speaker offered some decidedly unflattering things about the council that Howard spoke up, this time from the rear of the room. And orderly he was not; Howard shouted from the back, cupping his hands around his mouth as an impromptu megaphone, to ensure that the elected officials could hear him. After a warning from the mayor, he apparently settled down. But several speakers later, he was at it again, hollering his views from the back of the room. This time, the mayor called for the police officer to enforce order, and he declared a short recess to enable the officer to do his job.

Even then, Howard wouldn’t cooperate; he refused the officer’s decidedly patient requests that he leave, to the point of stubbornly sitting still (and you will no doubt mentally add, based on the description in the opinion, “like a spoiled, petulant child”). Ultimately the officer employed what’s called “pain compliance.” That is, he got Howard in a wrist lock and (ahem) persuaded him to rise and get out of the room.

The officer charged Howard with disorderly conduct, in the form of disturbing a public meeting. The principal issue in the case is whether Howard’s behavior rose to a level of violating the Roanoke ordinance, given the limits upon restriction of free speech under the First Amendment.

I’ll cut right to the chase here and tell you that the court concludes that the mayor’s (and the officer’s) efforts to quiet Howard constituted reasonable time, place, and manner restrictions upon his exercise of his free speech rights. Howard had argued that the limiting language in the ordinance (which parallels state law), “such conduct shall not be deemed to include the utterance or display of any words,” exempted him from prosecution. No such luck, the court rules; you’re guilty, because reasonable limits on the manner of free expression are still permissible. Otherwise, no government could ever conduct any business, since any opponent could obstruct the whole process by coming in and reading the political manifesto of his choice.

We get an important lesson in the duration of a condition of good behavior in White v. Commonwealth , where White was placed on first offender status for possession of cocaine. The judge required her to be of good behavior, to perform community service, and to get a job. He also put her on probation for a year, suspended her driver’s license, and ordered her to pay about $900 in court costs.

Sounds like a pile of stuff to do, and White did quite well, all things considered; on the scheduled return date a year later, she was able to show the judge that she had complied with every condition except the payment of the costs. Instead of taking the hard-line approach, the judge had a heart and continued the case for another six months, to give her time to pay the costs.

I will admit to being pretty square; I have never tried cocaine, and have never even had a desire to do so. I infer that the tug of addiction to it must be quite strong, because just ten days after getting this boon from the court, White flunked a drug test, showing that she used cocaine that day. That bought her a capias for violation of the good behavior condition of her first offender status. But wait a minute, her counsel urged at the subsequent hearing; she was ordered to be of good behavior for a year. She did that. What happens after the year expires really isn’t fair game for this case.

The trial court disagreed, and convicted her of the original charge. On appeal, the court of appeals agrees, and affirms. It finds that while she was placed on probation for one year, the other terms of her deferment were not similarly limited in duration. Specifically, the court rules that “the condition that she be of good behavior remained [after the 6-month extension] as it had no [preset] termination date.”

Life offers many people second chances. Some, like White, get multiple second chances. It’s always sad to see someone throw that away.

There’s another cocaine case in this batch, and it involves the delicate matter of body cavity searches. In Winston v. Commonwealth , police arrested Winston for robbery. The magistrate ordered him held without bond, so he went to an annex of the Richmond jail to be processed for admission. The jail’s procedures include strip searches, but the rules have been carefully crafted to comply with caselaw on reasonableness – including the preservation of the arrestee’s dignity, by ensuring that the strip search is done in private, with no one of the opposite sex present.

The complication in this case came when the deputy conducting the search looked at Winston, sighed, and said, “Okay, . . . pull out what you have stashed in your rear.” Winston reached behind himself and pulled out of you-know-where a baggie containing cocaine.

Under these circumstances, it’s fairly certain that he voluntarily “possessed” the substance; no one is going to give the prosecution a serious argument there. The issue in this case is whether the police had the authority to go beyond a strip search and conduct a body cavity search, which unquestionably is more intrusive than just, “Go behind that wall and take off your clothes.”

The court of appeals rules here that what the deputy conducted was something called a “visual body cavity search,” achieved without anyone’s touching Winston. Remember, Winston, acting on direction from the deputy, extracted the problematic evidence himself, so this doesn’t qualify as a “manual body cavity search,” which might require exigent circumstances. The court goes on to find that the jail had a manifest interest in preventing the smuggling of contraband into the jail, so this procedure is reasonable in light of all the circumstances – the jail’s stated interest, and the relatively minimal intrusiveness of this kind of search. Thus, the evidence was properly admitted, and Winston was properly convicted.