ANALYSIS OF JANUARY 13, 2009 CAV OPINIONS

 

[Posted January 14, 2009]  Yesterday, while I traveled to the Holy City for a Supreme Court argument, the Court of Appeals bestowed three new published opinions on us.  One is a high-profile contempt proceeding against two attorneys and their unfortunate law clerk.

 

Criminal law

I have written previously about Scialdone v. Commonwealth ; a three-judge panel of the court reversed the three contempt convictions because the trial court improperly used summary contempt procedures for what was pretty clearly indirect contempt.  (When contempt occurs in a judge’s presence, she can summarily find the offending party in contempt of court.  When it occurs out of her presence, so that evidence is necessary, it’s indirect, and the offending party gets notice and a hearing.)  This contempt, which largely consisted of falsifying a document and then offering it into evidence, principally occurred outside the judge’s presence.  That’s particularly true for one of the lawyers, who didn’t even participate in the trial, and had to be summoned to the courtroom to meet his doom.

 

But the trial judge found all three men summarily in contempt anyway.  After the panel’s remand, the Commonwealth got en banc rehearing, and yesterday, a fractured court affirms the convictions.  The majority, authored by Judge Kelsey, doesn’t find that summary contempt procedures were proper (I think everyone on the court would agree that they were not); instead, the majority rules that the three men never sought a plenary hearing.  They did raise the defect in process, but that only occurred in a post-conviction motion for a stay of sentence pending appeal.  The defendants never actually filed a motion asking the court to set the convictions aside for this reason.

 

There are two separate opinions.  Judge Beales urges that the defendants did, indeed, sufficiently raise the objection in such a manner that the trial judge was able to consider it before entering the sentencing order.  But he would find that the error was harmless as to the senior lawyer, because the evidence was sufficient to convict him even without extrinsic evidence.  He writes, “Scialdone’s cavalier representation to the trial court that Exhibit 2, a document that he wanted to present to the jury, was authentic – when it clearly was not – violated [the duty of truthfulness and honesty to the trial court].”  This delicately phrased euphemism barely conceals an assertion of directly lying to a judge, something that has done irremediable damage to law practices in the past, and may do so again here.

 

The other two men get off better in Judge Beales’s eyes; he finds that the use of summary contempt proceedings against them was not harmless error, and he would remand for a new trial for both of them.

 

Judge Elder, joined by the chief judge and now-retired Judge Clements, issues a stinging dissent in which he argues that the objection was, indeed, properly preserved.  He describes the majority’s approach as reaching “new heights in elevating form over substance” with regard to the contemporaneous objection rule (Rule 5A:18).  He notes that the judge specifically mentioned in her sentencing order that she had read and considered the motion for stay, so the dissent insists that the issue was properly preserved.

 

Contemporaneous objection rule violations routinely dunk legions of appeals, so it shouldn’t be surprising to find a ruling like this.  What is remarkable is to find such a divergence of views on whether a given issue has been preserved.  There is a spectrum of such views held by judges on the court as to just how specific one must be in order to preserve an issue, and this opinion gives the reader valuable insight into the court’s thinking.

 

When is a school not a school?  That’s the case-dispositive issue in King v. Commonwealth .  King was charged with discharging a firearm within 1,000 feet of a school.  Unfortunately, his aim was true; his shot hit a victim in the throat.  His related convictions of malicious wounding and other firearms charges are not addressed in this appeal, either because King didn’t appeal them or because the court refused his petition for a writ.  But this offense is a Class 4 felony, and definitely justifies the use of the appellate process.

 

The issue is whether the property was in fact a school.  In truth, it was a church, or at least church property.  A private organization leased the property to run a school for students with disabilities.  But the lease only gave the school the right to operate between 7 am and 6 pm, Monday through Friday.  This shooting occurred at 8 pm on Friday night, when the school had no contractual right to occupy the premises.  The school occasionally got permission to use the property after hours, but there is no indication in the record that it was being so used at the time of the shooting.

 

This is, at a minimum, a novel question, and it’s no surprise to see this opinion published.  The court rules that the land was indeed school property, so the conviction was affirmed.  No school is in session 24 hours a day, the court notes; and police shouldn’t have to track down whether the owner has given consent outside the lease for use at a given time.  In contrast, platted property lines are easy to establish, and since King never denied the shooting, the boundary line is all it takes to convict him.

 

Fair warning:  This next one is going to sound counterintuitive.  Wright v. Commonwealth involves a conviction of possessing a firearm while possessing cocaine with intent to distribute.  Virginia law says if you possess both of those things at the same time, and intend to distribute the cocaine, the there’s a mandatory five-year minimum prison term.  Wright got convicted of that crime, despite the fact that the gun was five miles away.

 

Police arrested Wright after learning that he was selling drugs in Portsmouth.  The detective who made the arrest knew Wright, and knew that he owned a gun.  He gave Wright the required Miranda warnings, but evidently the idea of remaining silent didn’t register with Wright, who promptly sang like an overeager countertenor giving his first recital.  The search-incident produced a small amount of cocaine, but Wright was only too happy to lead the police back to his home five miles away, hand over the keys, and tell them exactly where the gun and his significant stash of cocaine (125 grams worth; an amount the trial court found inconsistent with personal use) were.

 

The threshold issue in this case is intriguing:  Can one “possess” something that’s five miles away?  Yes, the courts have found; possession involves the means to exercise dominion and control over something, so one can constructively possess something even when he’s not in the local jurisdiction.  Indeed, it’s probably possible to “possess” an item that’s locked away in a safe deposit box, as long as you’re the one with the key and the right to go get the contents of the box.

 

Wright argued that constructive possession wasn’t enough under this specific-intent crime, but the appellate court looks at the plain language of the statute and finds no such language.  In a related subsection, the statute refers to possessing something “on or about his person,” but that language isn’t in the subsection under which Wright had been convicted.  Accordingly, the court affirms.