[Posted January 15, 2010] The Supreme Court of Virginia begins the new year with 18 published opinions and two published orders. The theme of today’s batch of cases is overwhelmingly criminal; 15 of today’s 20 decisions are either criminal appeals or habeas corpus proceedings. Probably the most newsworthy decision of the day is the denial, by order, of a habeas corpus petition filed by Ivan Teleguz, who was convicted of capital murder for hire and sentenced to death.

Some of today’s decisions are quite long. In the interest of getting as much analysis posted as quickly as I can, I’m going to focus on the shorter ones first.

Civil procedure
I have preached repeatedly – religiously, one might say – on the enormous importance of court reporters. Having a good one is a blessing; having a bad one can be a nightmare. But what happens when you don’t have one at all? At least in one circuit court that I know well, the result (by local rule) can be the dismissal of your case even before the first witness is sworn. That’s exactly the result that shows up on appeal in Shapiro v. Younkin, which started right here in Virginia Beach.

This is a landlord-tenant dispute that started in GDC, where apparently both sides acted pro se. The plaintiff lost and appealed to circuit for a de novo trial. When he arrived on the trial date, the judge asked him, “Where’s your court reporter?” He claimed to be indigent and unable to afford one. The judge evidently looked into his finances and rejected his claim of indigence. She then described to him the circuit court’s local rule requiring that the plaintiff secure a court reporter for the trial of civil cases. He didn’t have one, so pursuant to the local rule, she dismissed the action.

The plaintiff may have been pro se, but he was no dummy; he knew about Rule 5:11(c), which permits a litigant to use a written statement in lieu of (or sometimes to supplement) a transcript. He wrote one up then and there and handed it up to the judge to sign. She refused, writing instead on the statement that she didn’t think it was accurate, and anyway, the reasons for the decision were all procedural, and those were recited fully in the order.

The plaintiff then went out and did something that a lot of lawyers have a hard time doing: He got a writ from the Supreme Court, still acting pro se. Today, the court reverses the dismissal and effectively guts the local rule. It holds that by statute, local rules can’t “abridg[e] the substantive rights” of litigants, and that’s plainly what happened here. The Supreme Court goes on to note that the trial judge improperly refused to sign the written statement; the rule required her to correct it if necessary, but not simply to reject it.

So what happens if there’s a long (or merely long-ago) trial and the judge can’t remember enough of the proceedings to ensure that the written statement is correct? In that event, the court reaffirms today, the only remedy is to order a new trial, so that a proper record can be made. That’s a harsh result for a winning litigant, who might get a bad result on retrial; but it’s clearly consistent with the court’s precedent on this very issue.

Here’s a potential conundrum arising out of this situation, courtesy of one of my long-time readers. The timeline established in Rule 5:11(c) for written statements puts the decision 65-70 days after entry of judgment. Let’s assume that an appellant complies with that rule, and at a hearing held 68 days after entry of judgment, the trial judges decides that she has to order a new trial, because she just can’t ensure the accuracy of the written statement. What authority does she have to order a new trial at this point? Remember, Rule 1:1 gives her only 21 days in which to act, so arguably she has no power to order a new trial. And once the appellant files a notice of appeal, jurisdiction over the case transfers to the appropriate appellate court.

My sense of this is that the trial court would still retain the power to order that new trial by virtue of Rule 5:10(b). That rule provides that if there’s a disagreement on the contents of the record, the trial judge has the authority to resolve it. While the rule doesn’t specifically say so, the Supreme Court’s precedent implicitly includes the power to order a new trial in order to comply with that rule. Still, Rule 5:11(d) contains an enumeration of the trial court’s options in dealing with objections to the written statement, and the power to order a new trial isn’t found in that list. (Remember the maxim expressio unius est exclusio alterius?) This is an analytically troublesome omission that probably should be addressed by clarifying one or both of these rules.

I always try to include in my analysis some practical advice for lawyers who want to know how a given ruling will affect their practices. As far as this decision is concerned, that advice is easy. While a trial court can’t dunk you even before the case starts, you should never make a practice of going to any meaningful legal proceeding without a court reporter. Saving a reporter’s appearance fee is the worst kind of false economy, in that it can backfire not only for the client, but for the lawyer. As I have phrased it elsewhere, if you plan to forgo hiring court reporters, made sure that your malpractice coverage is current.

Civil procedure geeks are going to love today’s opinion in Roberts v. CSX Transportation. It’s a FELA claim in which the plaintiff got a judgment but appealed anyway, because he got far less in damages than he wanted. (Practice tip #1: Only an aggrieved party can appeal, but it’s possible to be aggrieved even if you got judgment, if you got less than you wanted.)

Roberts sued the railroad for personal injuries. Under FELA, the state court applies federal substantive law, and FELA is a comparative-negligence statute. The jury determined that Roberts had sustained damages of $280,000, but it found that he was 95% at fault. The court accordingly entered judgment in his favor for $14,000.

Roberts got a writ to argue an issue relating to jury selection. One of the veniremen was a CSX stockholder. That venireman answered readily that his ownership of the company’s stock wouldn’t affect his decision in the case, so the trial court rejected a motion to strike him for cause. Roberts objected, and then used a peremptory challenge to remove him from the jury.

This brings us immediately to a major difference between state and federal law relating to jury selection. Under Virginia law, the subsequent use of a peremptory challenge is irrelevant to a claim that the court should have struck the venireman for cause; the litigant is entitled to a whole venire that’s free from prejudice. Federal law is different; if a litigant loses a motion to strike for cause and then uses a peremptory challenge to remove the same guy, there’s no prejudice to him because the law classifies the error as harmless. (Practice tip #2: Maybe you’d better allow the goblin to go ahead and serve on the jury in federal court, to preserve your right to appeal.)

Under Virginia law, a shareholder in a company can’t serve as a juror in litigation involving the company; he’s pretty much conclusively presumed to be biased. That’s been the holding in Virginia criminal cases, and today the court announces that the same rule applies in civil cases (as it clearly should, in my view).

But that still leaves us with the question of whether state law or federal law governs jury selection. At first blush, jury selection appears to be procedural rather than substantive. But as the court notes in today’s opinion, “distinguishing ‘substance’ from ‘procedure’ is often difficult,” so this isn’t an easy decision. CSX asked the Supreme Court to apply an “outcome determinative” test, contending that the resolution of this issue would determine the outcome of the case.

That isn’t quite the same thing as the substantive/procedural dichotomy, but the court today assumes without deciding that it’s appropriate, and reverses anyway. It finds that a new trial would not be outcome-determinative. It points to a 1997 US Supreme Court decision allowing a state court to refuse an interlocutory appeal in a §1983 claim (which is clearly available in federal court), and holds that the same premise applies here. Ordering a new trial will delay the ultimate disposition of the case, but it won’t determine the outcome.

Along the way, this case offers a couple of other pointers, both contained in a footnote. The court resolves a conflict between two CAV decisions relating to the prejudicial effect of denying a challenge for cause where the venireman is later struck in peremptory challenges. But the court is careful to box off one possible unintended consequence of that ruling: It notes that while a litigant is prejudiced by the improper denial of a challenge for cause, a habeas corpus claimant still has to make an affirmative showing of prejudice under Strickland v. Washington in order to get relief.

While the ultimate holdings of this case can be easily summarized in a couple of short sentences, I recommend that my readers go ahead and review the entire opinion carefully for the wealth of insight it provides into this important area of trial practice.

There’s a clash of law and equity today in Virginia Home for Boys and Girls v. Phillips. It involves a constructive trust placed upon a decedent’s estate.

When Phillips was a boy of ten, he moved from his parents’ home into the nearby home of his aunt and uncle in Sussex County. The couple evidently raised him as their own son. He finished college and went to work for a company in Petersburg. Seven years later, his uncle asked him to come by for a chat.

In that discussion, his uncle proposed to him that he come back to live on a part of the farm that the couple would sell to him. He further offered that if Phillips would help the couple in their declining years, they would agree to leave him all of their estate when they died. Phillips agreed to these and a few other terms, and moved his wife and young son back to Sussex. He kept his job, so he had a 40-mile commute to work; but that probably seemed manageable. No written record of the agreement was ever made.

[Okay; at this point, I know that half of my audience, having read that last sentence, is screaming at Phillips, “Don’t be a fool! Get it in writing!” Look, you’re getting ahead of the story here, so stay calm; we’ll get to that part once we’re through with the facts.]

The uncle died five years later, leaving a will that left everything to the aunt. It contained a clause that provided that Phillips was to get everything if the aunt predeceased the uncle, but that didn’t happen. Five years beyond that, Phillips’s employer closed its factory in Petersburg. It offered Phillips (evidently a good employee) a comparable job at another of its plants in Georgia, but Phillips declined because he still had to keep his decade-old promise to his aunt. Instead, he got a job in Hampton, more than doubling his daily commute.

The aunt remained a widow for 18 more years before she passed away in 2005. To Phillips’s surprise, her will left her entire estate [okay, folks; you know what’s about to happen here] to the Boys & Girls Home, with no provision at all for Phillips.

By this point, Philips had been doing exactly what his aunt and uncle – his foster parents – had asked him to do for 28 years, more than half his life. He had moved his family, built and paid for a nearby home, endured long commutes, turned down at least one job opportunity, and now he gets nothing.

Well, actually, he did get one thing; he got a lawyer. That lawyer filed a suit seeking to impose a constructive trust on the entire estate for Phillips’s benefit. After a trial, the circuit court found that Phillips’s part performance of the agreement (really, from his standpoint he was entitled to think it was full performance) was sufficient to take the case out of the statute of frauds and overcome the Dead Man’s Act’s rule on corroboration. The court found in favor of Phillips.

Today, the Supreme Court reverses and enters final judgment in favor of the Home. It doesn’t question Phillips’s word or his integrity, and it acknowledges that proof of part performance can take a case out of the statute and the Dead Man’s Act. I believe that the justices sympathized with his plight, given this compelling set of facts. But Phillips’s cause is undone by the holding that “evidence, to be corroborative, must be independent of the surviving witness. It must not depend on his credibility or upon circumstances under his control. It may come from any other competent witness or legal source, but it may not emanate from him.”

Criminal law
We’ve seen Logan v. Commonwealth before – indeed, on multiple occasions, most recently early last year in the Court of Appeals. I analyzed the case back on March 10, so instead of reciting all the facts again, I’ll suggest that you check out that coverage for more detail. Today’s decision is an affirmance, but with a twist: I noted last March that the CAV implicitly amended the question to be decided on remand in light of the US Supreme Court’s intervening decision in Herring v. US (2009). I theorized that that amended analysis was appropriate because blindly adhering to the SCV’s mandate without considering the effect of Herring would just result in another reversal.

It turns out I was wrong; the justices today affirm the conviction, because the trial court permissibly found that the officer did not act in bad faith. But the Supreme Court rejects the suggestion that the inquiry is really an objective one, requiring a showing of the absence of good faith; it’s still a subjective one to determine bad faith.

Reader’s Digest version: The specific holding of the case is that “the exclusionary rule is not applicable in probation revocation hearings absent a showing of bad faith on the part of police.”

Next we get a cascade of Browns – three of them in two appeals. The first is Commonwealth v. Brown (note that the Commonwealth it the appellant in this one), which presents an interesting appellate-procedure issue. If you’ve been to this site often, you know about the right-for-the-wrong-reason doctrine. Well, how about a right-for-an-unasserted-reason corollary?

Experienced appellate advocates are already sensing the problem here. Brown appealed the denial of a motion to suppress evidence in his trial for cocaine possession-with-intent. In his petition for appeal to the Court of Appeals, he posed a question presented dealing with whether the police had an articulable basis to detain him after issuing a summons for a petty violation. (The cocaine was discovered during the subsequent detention.) The CAV broadly restated the question as “Whether the trial court erred by denying appellant’s motion to suppress.”

The CAV eventually ruled that the police did have a reasonable articulable suspicion sufficient to detain Brown briefly. But it nevertheless reversed, finding separately that the police had no probable cause to arrest him.

That lit a fire under the Commonwealth, because Brown had never asserted a lack of probable cause in his petition. The Commonwealth got a writ from the Supreme Court to consider whether an appellate court can reverse a conviction based on an issue that hadn’t been raised by the appellant. Nope, the justices rule today; you can’t appeal based solely on Issue A and expect an appellate court to reverse on Issue B. (I suppose there might be an exception if Issue B is lack of subject-matter jurisdiction; but that obviously isn’t the case here.) The court thus reverses the CAV and reinstates the conviction.

The next two Browns are both appellants in the single appeal styled Brown v. Commonwealth. They’re also cousins who participated in an armed robbery of a card game. Brown #1 was 16 at the time, while Brown #2 was a year younger. The trial court was faced with a sentencing anomaly, since five convictions for each defendant were for use of a firearm. Those offenses carry mandatory-minimum sentences (three years for the first and five years for each subsequent conviction), but juvenile law permits a trial court in some instances to sentence a defendant as a juvenile even if he’s been tried as an adult. The question is, can those permissive provisions survive a mandatory-minimum requirement?

The answer gets complicated by an issue of preservation. If you’re a criminal-defense practitioner who thinks the Commonwealth gets preferential treatment in the courts, you need to check this opinion out, because it will open your eyes. The court rules that the Commonwealth failed to preserve an objection to the trial judge’s decision to use the juvenile-sentencing route, avoiding the mandatory-minimum sentences for both defendants. Here’s why:

The sentencing hearings were held ten days apart. In the first one, the prosecutor clearly argued to the judge that the mandatory minimums had to be imposed. He even cited a case that he figured said so. The judge took that case back to chambers and read it, then came back into court and ruled that he could still sentence the defendant (this would be Brown #1) to confinement as a juvenile, and suspend the entirety of the adult portion of the sentence.

Ten days later, the same prosecutor appeared before the same judge and addressed the same problem. The prosecutor didn’t go into detail on this one, because the judge had already ruled that he had the authority to forgo the mandatory minimums. This failure, the court rules today, failed to comply with the Court of Appeals’ Rule 5A:18 – the contemporaneous-objection rule, that ruthless slayer of appeals.

The Court of Appeals hadn’t seen it that way when it reversed the sentencing orders in appeals brought by the Commonwealth. It found that the prosecutor had protected the record in both cases. But the Supreme Court today reverses the CAV on Brown #2’s sentence, because you can’t transpose arguments from one defendant’s sentencing into another defendant’s sentencing. No doubt the prosecutor figured the trial judge knew perfectly well what his position was, and I’d guess that the trial judge probably did remember going back into chambers to read the case. But that doesn’t suffice for purposes of protecting the record. The court thus reverses the CAV and reinstates Brown #2’s relatively lenient sentence.

No such luck for Brown #1; there’s no question that the Commonwealth preserved the issue in his sentencing. Well, to be perfectly accurate, there is “a question” about it, because this Brown argued that the prosecutor hadn’t specifically objected to the sentencing treatment. But the court today rejects that argument, in my opinion quite correctly, because the prosecutor clearly made his position known on the issue, and gave the trial judge an opportunity to rule intelligently on the matter.

A majority of the court finds that the CAV was correct to reverse the sentencing order, so it directs that this Brown serve the full extent of the mandatory-minimum terms of 23 years. That’s a tremendous disparity between two cousins who basically did the same thing; one will be free early this decade, while the other will be in prison for roughly another two decades.

Brown #1’s appeal turns on a familiar rule of statutory interpretation. When two statutes deal with the same subject and they conflict, the more specific one controls over the more general. Here, the majority finds that the mandatory-minimum provision (which deals with a single offense) is more specific than the juvenile-justice laws (which deal with all offenses).

There are two dissents here. Justice Koontz would reverse both sentences and reinstate the trial court’s ruling. He thinks that the juvenile law (which deals only with certain defendants) is more specific than the mandatory-minimum statute (which deals with all defendants). He also notes that juvenile laws are remedial and to be liberally construed, so they should get preference as long as we’re construing statutes against one another. Justice Millette, joined by Senior Justice Carrico, doesn’t think that the Commonwealth properly preserved any of its appellate arguments. He points to what he deems a specific concession during Brown #1’s sentencing hearing, to the effect that the trial court could sentence the defendant under the juvenile laws if he wanted to. Even the Commonwealth can’t “approbate and reprobate” in cases like this, and he thinks that that concession forecloses the Commonwealth’s appeal.

Police officers, who sometimes openly wonder whether jurists care about their safety, get a welcome ruling today in a Miranda case, Anderson v. Commonwealth. Anderson was approached by an off-duty police officer who was working security in an apartment complex. He started to back off as the officer approached. The officer asked him to stop. The request had the opposite effect, as Anderson took off for the hills.

As with most appellants, he didn’t get far. He fell twice, and after the second time, he got up, faced the officer, and began to reach into his left pants pocket.

[I winced as I got to this point in the opinion, as I really expected gunfire. Unsolicited free legal advice to crooks: When confronted by a police officer, don’t reach into hidden areas of your clothing, unless you’d like to be involuntarily ventilated.]

Fortunately, this officer exercised restraint, watching as Anderson pulled a “silverfish, grayish object” out of his pocket and tossed it aside, five feet away. Our suspect then dropped down like a good little arrestee and allowed himself to be handcuffed. While performing this task, the officer looked over at the object and recognized it as a handgun. He immediately asked Anderson, “Is it loaded?” Anderson confirmed that it was.

The officer picked up the gun and returned to his car, with the now-subdued Anderson in tow. He learned from his computer that Anderson was a convicted felon; that brought on the required Miranda warnings. After being Mirandized, Anderson told the officer that he got the weapon because he had been shot at two weeks before.

Anderson moved to suppress both of these statements. He argued that his confirmation that the weapon was loaded came as the result of a custodial interrogation before Miranda warnings, and that that constitutional violation tainted his subsequent statement, even though it came after the warnings.

The trial court denied the motion, ruling that Anderson wasn’t in custody at the time he confirmed that the gun was loaded. This must have caused our hero to snort in surprise; after all, if you’re lying prone on the ground, with a police officer’s knee in the small of your back and your hands cuffed behind you, do you feel like you’re “in custody”? Of course you do. Anderson accordingly moved the court to rehear the motion.

This time, the court took a slightly different tack. It held that the question about the gun’s being loaded fell within the narrow public-safety exception to the Miranda rule. The Court of Appeals affirmed this ruling, noting that it didn’t need to decide the perhaps awkward question of whether a hog-tied defendant is in custody or not, since the exception cleanly applied here.

Today the Supreme Court agrees and affirms the conviction. The object of the officer’s question, the court finds, wasn’t to gather evidence, but to ascertain how dangerous the weapon was. If unloaded, it might be safely left on the ground for a few minutes while the officer took Anderson back and stuffed him into his police car. But he couldn’t exactly leave a loaded gun lying on the ground for a toddler to find, now, could he?

The purpose of the exclusionary rule is to prohibit law-enforcement officers from marshaling prosecutorial evidence without respecting a defendant’s constitutional rights. But under a long line of precedent, police officers are allowed to make snap judgments on inquiries that are designed to stabilize a potentially violent situation, to protect themselves and the public.

There came a point in my run through today’s Jones v. Commonwealth opinion when I stopped and back-tracked, because I was sure I hadn’t read something right. Let’s take a stroll together and I’ll show you what I mean.

This is a recidivist conviction of refusal to submit to a blood or breath test. Jones stumbled (assuming you can stumble while behind the wheel) unexpectedly upon a police perimeter, because several officers were investigating a residential burglary. There’s no suggestion that Jones was involved in the burglary, but there is a suggestion that he had engaged in a little drinkin’ before turning the key. When he pulled his car up to the police checkpoint, it wasn’t long before an officer noticed some of the telltale signs: Strong odor of alcohol; red, somewhat glassy eyes; slurred speech. He also made some “irrational” statements, such as telling the officer that he had come to help, and complaining that now the officer was being mean to him. For shame.

Jones refused a set of coordination tests, and the officer arrested him. Predictably, he refused the offered blood or breath test, too. That got him a refusal charge, which was more serious than normal because he had two recent prior DUI convictions. Those convictions made it a Class 1 misdemeanor.

Jones moved to suppress, contending that the officer lacked probable cause to arrest him. The trial court denied the motion and a jury convicted him, giving him 30 days to serve. On initial appeal to the Court of Appeals, the key issue was the ruling that the trial court was entitled to consider Jones’s refusal to take the test as an element of its probable-cause analysis. That’s because, the CAV ruled, such a refusal constitutes evidence of “consciousness of guilt.” (Note that it isn’t being considered as substantive evidence of Jones’s guilt; this is just the probable-cause analysis.)

The Supreme Court can’t stomach this “consciousness of guilt” inference, so it reverses that CAV ruling today. Here’s the relevant holding from today’s opinion: “Therefore, we conclude that a defendant’s refusal to submit to field sobriety tests is not evidence of ‘consciousness of guilt,’ and that the Court of Appeals erred in applying this principle in reviewing the evidence of probable cause in the present case.” Looks like this conviction is going down.

And then you get to the next page, and you see this:

Nevertheless, we recognize that a defendant’s refusal to submit to field sobriety tests may have some relevance in a police officer’s assessment of probable cause to arrest that defendant for driving under the influence of alcohol. When other facts show a driver’s consumption of alcohol and the discernable effect of such consumption on the driver’s mental or physical state, the driver’s refusal to perform field sobriety tests is circumstantial evidence tending to show the driver’s awareness that his consumption of alcohol would affect his ability to perform such tests. Accordingly, we hold that in determining whether a police officer had probable cause to arrest a defendant for driving under the influence of alcohol, a court may consider the driver’s refusal to perform field sobriety tests when such refusal is accompanied by evidence of the driver’s alcohol consumption and its discernable effect on the driver’s mental or physical state.

Now you see why I had to go back and re-read the previous language? The Supreme Court giveth (ruling that refusal to submit cannot be evidence of probable cause) and the Supreme Court taketh away (ruling in the very next sentence that a court can consider that evidence, as long as it’s accompanied by other evidence of intoxication). The only way I can see to reconcile these two incongruous rulings is to say that refusal can’t be the only evidence against a defendant; but that premise seems so obvious that I doubt that’s what the justices are getting at. In any event, the court upholds the conviction, swatting aside this one ruling by the Court of Appeals but affirming anyway.

But wait! There’s more. It seems that I wasn’t the only one puzzled by these two statements. Justice Lemons, joined by Justice Kinser, complains that . . . well, complains that the two rulings aren’t quite reconcilable, just as I said in the last paragraph. Perhaps the distinction shouldn’t escape me, but at least I have some respectable company in my state of bewilderment. I will boldly predict that this opinion is going to lead to a great deal of confusion as lawyers and trial courts struggle to figure out just what a judge can and cannot infer from a refusal.

Just as there are two Brown decisions today, we have another Jones. This Jones v. Commonwealth involved Aubrey Dwight Jones (the refusal defendant was Ronald Lee Jones), and I dare say that Aubrey would gladly trade places with Ronald right now.

Aubrey Jones was convicted of burglary, conspiracy, and the unusual offense (I think I’ve seen it once before in my five years of publishing this site) of wearing body armor while committing a crime. This is a sufficiency analysis – always a difficult slog for a criminal appellant.

It all started with a domestic argument, and believe it or not, Jones wasn’t involved. Indeed, he wasn’t even there. Boyfriend and Girlfriend got into a squabble in Boyfriend’s apartment one evening, and Girlfriend stormed out after he called her an ungentlemanly name. She summoned two pals, one of whom was Jones, and returned to the apartment. She then went about this the right way: She told her companions to wait in the hall as she was admitted to the apartment by Boyfriend’s roommate. She told the roommate that she was bringing some friends in, and if anything were to happen, he shouldn’t worry about it.

According to today’s opinion, the sole purpose of this nocturnal visit was to “discuss it” with Boyfriend. That’s it; they were just going to talk. Of course, Jones brought a gun and wore his body armor, and his companion had a type of extendable bludgeon known as an asp. This was looking to be a fairly one-sided chat.

Girlfriend admitted the two conversationalists into the apartment and pointed out where Boyfriend’s bedroom was; she then stepped aside. They knocked on the closed and locked door, but got no response. No problem for the prepared mind; Jones kicked the door in. Fortunately for Boyfriend, he had concluded that he really didn’t feel like trying out the accommodations at the nearest intensive care unit; an open window revealed that he had sensibly fled. Desperate for an intelligent exchange of ideas, the two men went outside to pursue him.

As far as today’s opinion goes, they never did find him; but eventually the police arrived. They took Jones’s loaded 9mm handgun and his body armor. He explained that he wore it because he worked as a security guard.

I don’t think he’s going to be working security anymore. He was convicted, and first the Court of Appeals and now the Supreme Court affirmed that conviction. The key holdings are:

The finder of fact could have inferred from the fact that Jones was packing heat and protected from bullets that this visit wasn’t just to talk; there was enough for the court to conclude that he entered the apartment with the intention to render Boyfriend a cripple or worse. And the permission of the roommate for Jones’s entry won’t negate an element of the offense, because even before he got there Jones formed the intent to commit a crime.

The parties’ carefully-orchestrated actions showed that they did indeed conspire to commit the crime. Everything from Jones’s dutifully staying out in the hall to Girlfriend’s stepping aside leads to that conclusion.

The body armor charge is only triggered by crimes of violence, but the court notes that burglary is classified as such a crime.

Since I’m pretty sure that guys coming right off violent felony convictions will have a hard time getting jobs in the security industry (just try getting a concealed-weapon permit with a record like that), Jones will have to find a new line of work when he tastes free air again.

Whitaker v. Commonwealth is another suppression appeal. Whitaker was standing on a sidewalk with three pals in what was described as a “very high-crime area” of Richmond when an unmarked police car pulled up and three officers got out. The officers decided to “investigate trespassing and also to speak to [the men] about . . . blocking the sidewalk.”

At this point in the narrative, I’d say that Whitaker has the upper hand. If blocking the sidewalk is all you’ve got to go on (the idea of trespassing on a public sidewalk seems a bit contrived), then even the best officer would be unable to make out a case of articulable suspicion, much less probable cause. Why, all Whitaker has to do is stand there, mind his own business, politely decline to answer –

Oh, look! There he goes, pedaling away on his bicycle like he’s in a Tour de France time trial. (Sigh.) So much for keeping a low, innocent profile.

The gendarmes took off after him, and noticed a few interesting things about his flight. First, he abandoned his bike and started running away on foot. He took circuitous routes and hopped a couple of fences. Two of the officers noted that he was holding on to his jacket pocket as he ran. (You know how when you’re running and you’ve got something heavy in a jacket pocket, it keeps whomping into your elbow and your side? That’s annoying, so the sensible thing to do is to keep a hand on it as you run, to keep it from banging into you like that.)

Eventually, Whitaker was no more adroit than was our previous guest star, Anderson; he slipped on some gravel and fell, and the officers caught him. As they wrestled with him, he tried to reach that same jacket pocket, then abruptly and politely volunteered, “Sir, I’ve got a firearm in my pocket.”

Frankly, I would have sooner expected the Hamlet soliloquy in a situation like this than this astonishing admission. The officers duly took the weapon, and a subsequent search-incident produced marijuana, cocaine, and several hundred dollars in cash.

This is a Fourth-Amendment issue, of course, and the court evaluates whether the totality of the circumstances justified the Terry stop. The court notes his presence in a high-crime area (clearly not enough in itself to produce a reasonable suspicion) and his flight at the approach of police (ditto). But is that enough? Here is the memorable answer from Justice Carrico’s unanimous opinion: “[I]t is not necessary to decide whether this showing, without more, is sufficient to support a reasonable particularized suspicion because, in this case, there is more.”

By golly, he’s right. These two circumstances alone might well fall short; but when you add in the manner of flight (including his otherwise-inexplicable decision to abandon his bike and take an erratic, circuitous route), there’s plenty of reason for the police to “investigatively detain” him (to coin a phrase). In analyzing these cases, it’s best to measure the officer’s knowledge at the time he restrains the defendant. Here, Whitaker did much more than stand on the sidewalk in a high-crime area before the officers restrained him, and they were entitled to take into account all of those circumstances, each highly suggestive of guilt, when they finally did get around to detaining him.

In my initial scan of today’s opinions, I tentatively placed Burns v. Commonwealth in the habeas corpus stack. Having read it, I have to move it to the criminal law section, because the precise holding of the appeal puts it there.

Burns was convicted of capital murder and sentenced to death; that sentence was affirmed on direct appeal. While a subsequent habeas proceeding was pending, the US Supreme Court ruled that the Eighth Amendment forbade the execution of mentally retarded persons. Retardation was at the heart of Burns’s habeas petition, so the new ruling clearly applied to him.

In response to the high court’s ruling, the General Assembly passed emergency legislation creating a special proceeding to adjudicate claims of mental retardation in capital cases. During such a proceeding for Burns, the trial court entered summary judgment in favor of the Commonwealth, because Burns indicated that he would have no expert testimony on the question of his mental retardation. Reasoning that the proceeding was civil in nature and that Burns had the burden of proof on this ultimate issue, the court found that summary judgment was appropriate.

Summary judgment, lawyers know well, is just fine for civil cases, but wholly inapplicable to criminal proceedings. That makes the determinative issue of today’s appeal the question of whether the hearing was civil or criminal. Today the Supreme Court rules that it’s criminal, since it’s part of a capital sentencing phase of a trial. Accordingly, summary judgment isn’t available, and the case goes back for a hearing on the merits.

There are two primary issues in Barnes v. Commonwealth, but the second one, a sufficiency challenge, is obviously going nowhere. The real fireworks are in the first issue, a challenge to a search warrant under Franks v. Delaware.

Barnes was convicted of aggravated malicious wounding and a related firearm charge in connection with the close-up shooting of an Alexandria man on a sidewalk in 2006. The victim suffered a single gunshot wound that produced a permanent injury, and he was unable to identify his assailant until several months later. But in the meantime, several onlookers provided police with key information leading them to Barnes.

The primary investigator gathered what evidence he had and took it to a magistrate to get a warrant to search Barnes’s residence. In crafting the search-warrant affidavit, he didn’t include everything he’d uncovered, including some evidence that might exculpate Barnes. The magistrate issued the warrant, and in the search, officers discovered the gun used in the shooting.

Barnes challenged the warrant, and the trial court conducted a hearing to determine whether probable cause had existed to justify the search, eventually overruling Barnes’s motion to suppress. After a subsequent trial, Barnes got a total of 15 years of active prison time in which to ponder life’s unfairness. But first, of course, we have the appeal, every inmate’s favorite pastime.

In Franks, the US Supreme Court explained how challenges to search warrants are analyzed. They come with a presumption of validity. In order to justify a hearing, the defendant has to show “deliberate falsehood or . . . reckless disregard for the truth, . . . accompanied by an offer of proof” of those allegations. He can’t merely claim negligence or mistake, so if a police officer gets incorrect information from a reliable source, the warrant is still valid. If the defendant makes that showing, then the trial court has to conduct an evidentiary hearing.

The Supreme Court finds today that the trial court made a mistake, but it isn’t the kind of mistake that Barnes was counting on. The court finds that Barnes’s allegations didn’t rise to the level that required a hearing. That means that the court reached the right result by the wrong route; it should, the justices rule today, have merely overruled the motion to suppress without swearing anyone in. The court finds that the affidavit “clearly established probable cause,” so Barnes won’t get any traction with his suppression motion.

You’ll want to check over your wardrobe after reading Hamilton v. Commonwealth, an appeal of convictions of assault by mob and participation in a criminal street gang. That’s because Hamilton’s choice of clothing while attending a party in Augusta County plays a significant role in his getting convicted.

This sufficiency appeal involves one of two rival street gangs, the Bloods (their rivals, the Crips, didn’t attend the party as far as we know). The Bloods wear red, and when trouble broke out at the party, a host of red-clad partygoers found themselves in the middle of it. Hamilton, alas, chose a red hat (and a red shirt, according to one witness) that evening. But somehow I doubt he had paid much attention to the cable program What Not to Wear, and anyway, there was at least some evidence of his proximity to the most troublesome events as they unfolded.

This decision is really-most-sincerely fact-specific, to the point that I found myself occasionally wondering why it’s published instead of being affirmed by order. The court finds that evidence in the record supported each of the convictions; the shakiest is probably that underlying the second and third of the three component assaults, but viewing the evidence in the light most favorable to the Commonwealth, I agree that Hamilton’s appeal has to fail. As for the court’s decision to publish, it may be that a paucity of caselaw exists on the street-gang statute. Indeed, I see only two appellate decisions interpreting it, and one of those is the Court of Appeals’ decision in Hamilton’s case.

One lesson you’ll take away from reading this opinion is that once a jury finds a defendant guilty, the evidence supporting that conviction doesn’t have to be extraordinarily solid in order to withstand a sufficiency attack. The appellee’s always-strong position on the facts in sufficiency appeals makes it very hard to get a reversal in cases like this.

There are two related first-degree murder appeals decided today, both arising out of a single homicide. The appellants in Thomas v. Commonwealth and Avent v. Commonwealth were romantically involved, and the victim of the particularly gruesome Brunswick County murder was Thomas’s father. These two opinions are the longest of the day, combining to exceed 100 pages of slip opinions; Justice Lemons draws the short straw to write them both. The court unanimously affirms both convictions today.

The first thing I’ll note about these two appeals is the relatively large number of assignments of error. There are 15 in Thomas and ten in Avent. That’s a very large number, and more than I would advise in a normal case. But murder appeals are not normal cases, by any stretch, and I don’t fault the appellate attorneys in the slightest for raising as many issues as they thought meritorious.

Given that many issues, I could provide you a detailed description of the facts and analysis of all 25 assignments of error. But my guess is that my readers don’t come to this site for a 5,000-word essay; you want a capsule summary of the key holdings and some analysis of how the decision will affect your practices. In any event, many of the rulings in these two decisions are fairly fact specific. Instead of that long screed, I’ll summarize some of the key rulings in the two opinions.

Thomas unsuccessfully sought disclosure of the juvenile criminal records of some of the prosecution’s witnesses. She argued that she should be permitted to use those convictions to impeach the credibility of those witnesses. That sounds like a plausible basis for the request, but the court today rules that the trial court properly denied it. The key here is that the convictions could be used to show bias (the interest of the witness in a particular outcome in the case) but not for general impeachment of the witness’s credibility. Since Thomas never asserted that the witnesses were biased, there was no admissible purpose for the conviction records. This is a vital distinction for trial lawyers to keep in mind in all sorts of cases.

Thomas sought an instruction on the lesser-included offense of accessory after the fact. (Avent is the defendant who actually killed the victim; Thomas was present at the scene, and was charged as a principal in the second degree.) This, too, sounds at least plausible, but it fails for the simple reason that, based o prior jurisprudence, accessory-after-the-fact isn’t a lesser-included offense of murder. Since she hadn’t been indicted as an accessory, she couldn’t be convicted of it, so the trial court properly refused the instruction.

Trial lawyers conducting voir dire have occasionally asked veniremen some version of this question: “If any of you were my client, would there be any reason why you would not want yourself on this jury?” At first blush, that seems like an extraordinarily effective means of uncovering potential bias, at least in honest veniremen. But the trial court refused Thomas’s request to ask that question, and the Supreme Court affirms that decision, commenting that the phrasing was “likely to generate speculative and irrelevant responses.” Today’s ruling doesn’t categorically hold that this question can never be asked – the court merely rules that it was not an abuse of discretion to refuse it – but as a practical matter, that’s going to be the result, because any litigant can now object and cite this clear ruling.

Thomas had one argument that looked compelling. The trial court instructed the jury that “If a person leaves a place where a crime is committed,” then the jury can consider that (“along with other evidence”) as an indication of guilt. The appellant’s hammer here is a very recent Supreme Court decision, Turman v. Commonwealth (2008), in which this very instruction (right out of VMJI) was held to be erroneous. But the court affirms today anyway, because Thomas also offered an instruction on flight, and alas, that instruction included the precise language she objected to in this appeal. That constitutes a waiver of the objection.

The Supreme Court affirms the trial court’s refusal to strike the Commonwealth’s evidence based on self-defense. The crime occurred, according to Avent’s testimony, when he and Thomas confronted Thomas’s father in his home and demanded that he turn over checks that were made out to Thomas. Avent testified that Thomas attacked him, then broke off the attack and went upstairs. Thomas then stated that he followed the victim upstairs out of anger, and when he got there, the attack started again; at this point, Avent pulled out a sawed-off shotgun and shot the victim, injuring him but not killing him. At this point, Avent stood or knelt over the victim and beat him in the head with the weapon until it broke. The head injuries, according to the medical examiner in the case, were the cause of death.

Self-defense is classified as either justifiable or excusable homicide. Justifiable homicide requires that the killer act “without any fault on his part in provoking” the conflict. Excusable homicide is available even if the killer helped to bring about the conflict, but then “retreats as far as possible, announces his desire for peace,” and then kills the victim in order to preserve his own life. Based on Avent’s own testimony, neither of these defenses was available to him, because he clearly brought about the fatal part of the conflict, at least in part, by following the victim up the stairs, and he never “retreated as far as possible.” Indeed, the evidence showed that the initial argument occurred right next to the door to the house, so if Avent really wanted to break it off, he could simply have walked out.

Avent also filed a post-trial motion based on after-acquired evidence. He learned that 10-12 years earlier, the victim had been the object of a child protective services complaint for abuse. Awarding a new trial based on such evidence requires four showing. The Commonwealth didn’t contest the first three (post-trial discovery; prior unavailability to the defendant; and non-cumulative nature of the evidence), so the battleground for this issue is the fourth, whether the evidence was material.

Avent argued that any evidence tending to show the victim’s violent nature was material to a self-defense claim, citing caselaw to that effect. But this doctrine is limited to those situations where the prior violence is “sufficiently connected in time and circumstances with the homicide as to be likely to characterize the victim’s conduct toward the defendant.” Today the Supreme Court concludes that an allegation of long-ago domestic assault has little or nothing to do with the confrontation between Avent and the victim, so the trial court correctly excluded it.

The level of detail in Murillo-Rodriguez v. Commonwealth might make some trial lawyers’ eyes glaze over, but it will gladden appellate lawyers’ hearts. The issue is one that every trial lawyer should know about (and be sure to see the contracts section below in case you don’t think this doctrine will apply outside the criminal setting). First, a little procedure-geek background.

For generations, lawyers who lost in the trial court endorsed the final order, “Seen and objected to,” and left it at that. That was widely acknowledged to preserve for appellate review the underlying rulings during the proceedings. Then in 1991, the Court of Appeals dropped a bomb called Lee v. Lee on the bar. In that case, the CAV (sitting en banc) ruled that this simple endorsement failed to comply with the contemporaneous objection rule, because it didn’t apprise the trial court exactly what it was that the lawyer was objecting to.

The response to Lee was predictable: Lawyers, being naturally risk-averse creatures, started crafting novellas to append to the back of final orders. They described each and every objection in detail, so they could not possibly be considered to be waived for appeal. The legislature speedily rode to the rescue; in the 1992 session, which convened less than eight months later, it passed an amendment to Code §8.01-384 that overruled Lee. The new statute provided that once you make an objection, you don’t have to keep making it again and again as the trial progresses; once is enough, unless you affirmatively waive it. (You can imagine that explicit waivers don’t happen too often.) The legislature couldn’t resist poking a stick in the CAV’s collective eye; it added that the new provision was intended to be “declarative of existing law.”

That meant that lawyers could go back to “Seen and objected to” again. Of course, the most risk-averse of them still weren’t satisfied, so they at least put something like, ‘Seen and objected to for the reasons stated on the record and in defendant’s post-trial motion,” and if they want to do that, I won’t fuss.

Today’s opinion deals with a situation of implied waiver that many trial lawyers have known about for years. Imagine you’re representing the defendant, and the plaintiff or prosecutor rests. You move the court to strike the evidence; the court denies the motion. Under long-established caselaw, if you put on evidence on behalf of the defendant, you have waived the right to argue on appeal that the trial judge should have granted your initial motion to dismiss.

That’s all well and good; but what about the new language in §8.01-384? You’re not about to expressly (that’s the word the statute uses) withdraw or waive your motion. The question is whether your putting on some defense evidence is enough to jettison the comforting protection of the statute.

The answer in the CAV has been yes for some time now. Today, the Supreme Court comes out and agrees; putting on evidence is a form of specific waiver. In this trial, Murillo-Rodriguez’s lawyer moved to strike when the prosecution rested, and he put on his own evidence after that motion was denied. But he didn’t make a new motion to strike at the conclusion of all the evidence, and today’s holding is that he waives the issue of sufficiency of the evidence for appellate review.

Sound harsh to you? Really, it isn’t; all a lawyer has to do is make the motion at two key points in the trial. That’s hardly a trap for the unwary, and most defense lawyers (civil or criminal) have been doing so for some time.

Vaughn v. Commonwealth is one of the two published orders released today. Vaughn was convicted of grand larceny. He appealed on the grounds that a police officer improperly entered his back yard during a warrantless search. The Court of Appeals found that the officer’s presence there was legitimate. Vaughn appealed on to the Supreme Court, and the Commonwealth assigned cross-error, arguing that Vaughn’s argument was defaulted because he never raised it at trial. The court agrees with the Commonwealth and affirms the judgment without addressing the merits of Vaughn’s legal argument.

This decision comes by published order instead of by a regular opinion. Vaughn’s motion to suppress contains some fairly unique language that’s unlikely to find its way into any other motion, so this decision will be of limited utility. Nevertheless, it’s published, so you don’t need to ask me for a copy; you can click on the link above to see the short ruling.

Decedent’s estates
A personal representative gets a painful lesson in qualification in Antisdel v. Ashby, dealing with the always-troubling subject of suicide. Antisdel’s son killed himself, and in order to sue several defendants, including several doctors and a couple of pharmaceutical companies, she qualified as his personal representative for the stated purpose of prosecuting a wrongful death claim. She filed suit for both wrongful death and survival claims, but nonsuited that and filed a new action seeking only survival damages.

The defendants filed pleas in the case, asserting that the mother had only qualified to prosecute a wrongful death suit, so she didn’t have standing to pursue a survival claim. The mother argued that they had waived that objection, because they hadn’t objected previously in the nonsuited case. To protect herself, she asked the trial court to correct the qualification papers nunc pro tunc (since the statute of limitations would otherwise have expired) to reflect a qualification to enable her to pursue both types of claims. Under the statutes, such a dual qualification is permissible.

But ordering it nunc pro tunc is another, the trial court felt. It denied the motion and sustained the special pleas, ruling that the mother had no standing to prosecute a survival action. On appeal, the Supreme Court affirms today. It applies the plain language of the statutes to find that one can qualify to pursue a wrongful death claim, a survival claim, or both. Here, the mother asked for the right to purse a wrongful death claim, and she got what she wanted. Nunc pro tunc orders are permitted to correct the record, so that it reflects what actually happened at a previous time; but they’re not available to make the record reflect something that didn’t happen. The court also affirms the ruling that the defendants’ failure to object in the nonsuited proceeding didn’t prejudice their right to raise the issue in the new one. A new suit “stands independently of any prior nonsuited action,” so the defendants were free to plead in any way they wished.

This problem, fatal as it proved to this litigation, is decidedly easy to avoid. If you’re qualifying as a personal rep, it’s easy to ask the clerk of court to include both types of claim in your authority.

Sexually violent predators
One of the requirements for the Commonwealth to initiate SVP proceedings against an inmate is that the inmate has to be serving an active term of incarceration for a sexually violent offense. The inmate in Harris v. Commonwealth had indeed been convicted of such an offense (attempted forcible sodomy), but there was a twist: All of the prison time for that charge had been suspended, and he was about to be released from confinement for his conviction on another charge. Can the Commonwealth still attempt to classify him as a sexually violent predator?

It’s doubtful; prior caselaw establishes that the prisoner has to be serving time on the sexually violent offense. When Harris moved to dismiss on this basis, the Commonwealth accordingly sought leave to amend its pleadings to allege a different predicate offense (the one he was actually serving time for – abduction). The trial court permitted that amendment, because as we know well, “leave to amend shall be liberally granted . . ..”

Even then, the matter wasn’t settled. Harris pointed out that his abduction sentencing order didn’t specify the kind of abduction of which he was convicted. There are three types, and only one of them is a sexually-violent offense (abduction with intent to defile). So maybe the Commonwealth’s amendment won’t help.

I’ll fast-forward to the ruling here: The court finds that the record supports a finding that he was, indeed, convicted of abduction with intent to defile. That’s what he was indicted for, and he admitted during the SVP proceedings that the indictment had never been amended. The court accordingly affirms Harris’s civil commitment for treatment.

Habeas corpus
The court decides one habeas proceeding today, refusing a writ in the capital-murder-for-hire case of Teleguz v. Warden, by published order. This is an original jurisdiction case, not an appeal. The court decides the petition without oral argument, based on its review of the petition and the Warden’s motion to dismiss.

As precedent, this case isn’t going to be of much use to anyone. The 34-page order meticulously goes through Teleguz’s 20 enumerated claims, most of which allege ineffective assistance of counsel. The court evaluates each claim under the two-part test required by Strickland v. Washington, and in all but one of those, it finds that the petition satisfies neither the performance prong nor the prejudice prong. (In one claim, involving counsel’s alleged failure to preserve certain testimony, the court merely finds that the prejudice prong isn’t met.) A couple of the claims are held to be procedurally barred because they could have been raised on direct appeal. The only other claim is an assertion that Teleguz is actually innocent. The court rules that such a claim isn’t cognizable in a habeas proceeding; Teleguz presumably can raise such a claim in a petition for a writ of actual innocence, but this isn’t the right forum.

The court dismisses one appeal today by unpublished order. Zein v. Hopler is a distant cousin to the ruling in Murillo-Rodriguez v. Commonwealth, toward the end of the criminal-law section of my analysis above. Zein applies the newly-announced ruling from the criminal case to the civil context. What’s true of criminal-defense lawyers applies equally in the civil setting; if you want to preserve a sufficiency challenge for appellate review, you must make a motion to strike at the conclusion of the plaintiff’s evidence and at the conclusion of all the evidence. Zein made the first motion but not the second, and the court rules here that §8.01-384 can’t save his appeal.

As this order is unpublished, it won’t be available in Virginia Reports or on the court’s web site. If you want a copy, send me a note and I’ll get one over to you.