ANALYSIS OF FEBRUARY 23, 2010 CAV OPINIONS[Posted February 23, 2010] We get a trio of unanimous panel opinions today from the Court of Appeals of Virginia.
As every criminal practitioner knows, indictments can be amended, just as civil pleadings can be. There’s a statute that empowers a trial court to order such an amendment, as long as it “does not change the nature or character of the offense charged.” We get a better understanding of just what that language means today in Pulliam v. Commonwealth.
Pulliam was indicted for taking indecent liberties with a child. The prosecution (apparently timely) moved the court to amend the charge to aggravated sexual battery. Those two offenses sound very different, but once you look at the elements, you’ll find plenty of similarities. Pulliam objected to the amendment, arguing that it would change the nature or character of the offense for which he was indicted. The trial court disagreed, ordered the amendment, and subsequently convicted him of the battery charge.
The first question is whether changing “the nature or character of the offense” can ever be ordered where it results in an indictment for a different crime. After all, given a rigid definition of that phrase, any amendment that changes the offense with which the defendant is charged could be said to change the nature and character of the offense.
But that isn’t how the courts interpret the statute. Instead, the CAV panel notes today, in affirming the conviction, that the focus is on the conduct of the defendant: “We do not compare the elements of the offense, but the underlying conduct of appellant.” Since the defendant’s course of conduct as alleged in the indictment and as demonstrated by the evidence was unchanged, the trial court had the authority to order the amendment.
The second criminal-law decision of the day is Herron v. Commonwealth, and it contains a wealth of goodies. Herron was arrested in Richmond on an outstanding warrant in 2006. The arresting detective started to perform a search incident to the arrest, and when he got to one point, Herron spun around. Arrested guys aren’t supposed to do that, but the detective figured it would be best to complete this procedure in jail.
On the way to the pokey, the detective mentioned to Herron that it was unlawful to bring any contraband into jail, and since that’s where they were headed, it might be a good idea to speak up if he had any drugs. Herron’s mind raced; Do I remain silent, and get nailed in the strip search, or speak up, and add to my criminal woes with a possession charge? In the end, his Fifth-Amendment instincts won out, and he kept quiet.
Of course, all was revealed once they got inside the jail. When Herron took off his pants, deputies saw a bag protruding from an area of his anatomy that doesn’t generally get a lot of mention in polite conversation. The deputies asked him to remove the bag, and Herron complied, sort of; he ripped the bag open and began to stuff numerous small pouches into his mouth. It didn’t work, of course; the deputies grabbed some of the packets and found cocaine inside.
The issues at trial presented a couple of fascinating legal arguments. Herron contended that he didn’t voluntarily bring the drugs into jail, so he couldn’t be convicted. Alas, the statute has no voluntariness or intent component, so he’s strictly liable. Herron also argued that he would have been impermissibly required to give up his Fifth-Amendment right (self-incrimination) in order to avoid prosecution for this offense. He contended that he faced a Hobson’s choice here, and he shouldn’t have been thus constrained.
It occurred to me upon reading this argument that Herron was contending that the detective and the deputies had essentially trapped him into this offense, such that an innocent person couldn’t have evaded committing a crime. In this vein, I have two items of valuable legal advice for people in his situation:
Rule #1: Don’t carry cocaine.
Rule #2 (applicable to those persons with outstanding arrest warrants, and who are thus subject to being arrested merely for breathing): Go back and read Rule #1 carefully.
The opinion today correctly points out that Herron faced not Hobson’s choice (a take-it-or-leave-it proposition with no real alternative) but a dilemma (an unpalatable choice between two unpleasant courses of action). And he created the dilemma himself, by failing to heed my two rules. That means that his conviction is affirmed.
One final note on this case: I have never met the CAV’s newest member, Judge Alston, who authors today’s opinion. But I was standing and applauding him while reading this ruling, as a fellow language-junkie who knows the difference between Hobson’s choice and a dilemma. His Honor even spells out the etymology of the phrase Hobson’s choice in a footnote. For those of us to whom matters like usage, diction, and word choice are important, this one’s a pleasure to read.
Kotara v. Kotarais a domestic relations case, but because the primary lesson of today’s opinion relates to appellate jurisdiction, I’m going to classify it that way. The issue is fairly simply summarized.
Husband filed a motion in the trial court seeking to terminate that court’s control over his wife’s support. The trial judge said no, so husband headed for Richmond. Last November, a three-judge panel of the CAV concluded that the order denying husband’s motion wasn’t appealable, so it dismissed husband’s appeal and awarded appellate attorney’s fees to wife. Husband sought panel (not en banc) rehearing, and the panel took up the question of whether it has authority to award attorney’s fees when it concludes that it doesn’t have jurisdiction over the appeal.
At first blush, this question is a real eyebrow-raiser. If the court doesn’t have jurisdiction over a case, how does it have the power to do anything other than just dismiss the appeal? After all, the first thing a court needs in order to render any sort of judgment is subject-matter jurisdiction. Today, the court rules that it can, indeed, make a fee award upon a finding that the appeal has to be dismissed. That’s because the court “has jurisdiction to determine its own jurisdiction.” Since getting to the point where the court can make that determination often involves plenty of effort by the parties, the court finds it appropriate to make a fee award, even when it finds that it can’t take the case.