ANALYSIS OF JULY 22, 2008 CAV OPINIONS
[Posted July 22, 2008] There are five published opinions today from the Court of Appeals. There is one important domestic relations ruling, but the major league zingers are in an en banc ruling in a criminal case. Lets start there; shall we?
In December, a divided panel of the court reversed burglary and larceny convictions in
Its black-letter criminal procedure that after a suspect in a custodial interrogation unambiguously invokes his right to consult with counsel, the interrogation must cease. It can only resume if the interrogee either gets his consultation with a lawyer, or else he voluntarily initiates further conversation.
Now, if you think youre in for a straightforward Miranda analysis here, youre mistaken. What the officers eventually did was walk away from the room where
The ultimate questions in this case are (1) whether the conversation with the chief was, in effect, a continuation of the earlier interrogation, and (2) whether
A majority of the court today resolves both of these questions in
For those who handle criminal cases, this will prove to be a genuinely fun decision to read. The majority is clearly bothered by the way in which the police chose to ignore
Practitioners may find a number of small lessons in this opinion, but the largest one is clear: The court jealously guards a clearly invoked right to counsel, and the accused will win most of the close calls in this arena.
Theres a closely related ruling today in a panel opinion, Knox v. Commonwealth , involving a suspects invocation of his right to remain silent. (The rights to remain silent and to have an attorney present during questioning are discrete.) When detectives questioned Knox about a murder, he clearly and unambiguously invoked his Fifth Amendment right: I dont even want to talk right now. Not right now. Evidently these
Sort of. One of the detectives asked Knox if he would like something to drink. Technically, thats not interrogating him; the US Supreme Court has so held. In response, Knox said, Im all right. Can we just talk later? The detective responded that there might not be a later, because two of Knoxs co-conspirators in the murder had already given statements. And that turned on the torrent of incriminating statements, which ultimately resulted in Knoxs conviction and multi-generational prison sentence.
[I recognize that my readership here at VANA is fairly focused. I dont write to the masses; I write things that will be of interest to lawyers, plus maybe some people in the legal media, those who seek out good appellate jokes, and maybe here and there a Robe or two. Accordingly, Im not worried that I will be giving assistance to too many crooks when I say that the best advice, with regard to your right to remain silent during a custodial interrogation, is to USE IT!! End of digression.]
The Court of Appeals today affirms the trial courts denial of Knoxs motion to suppress those statements, finding that he had indeed reinitiated the conversation after having invoked his right to remain silent. In that instance, the police are free to use whatever tales the suspect may tell.
As I hinted above, one key reason why this case went so smoothly for the police is that they consistently did what they were supposed to do, unlike in
Goode v. Commonwealth presents almost no tough issues. Goode participated in an attempted robbery of a security guard, trying to get the guards pistol. He and a confederate lay in wait behind some bushes, discussed the plan, concealing their faces with bandanas, and when the guard walked by, one or both of them slugged him, breaking some bones and causing some permanent injuries but fortunately no fatality. The stricken guard, after having been slugged a few times (one of the assailants had a baseball bat, and the other one had a dumbbell), managed to draw the gun and get off three shots. That scattered the assailants, who at this point were, well, outgunned.
Police investigated the crime and eventually found out about Goode and his accomplice. At this point, the two men did the only honorable thing they could they each blamed the other, trying like the dickens to escape serious trouble. Goode, for example, said it was all the accomplices idea, and that once the accomplice hit the guard once, he (Goode) chickened out and didnt participate.
I only found one thing to be somewhat surprising about this opinion, and thats the approach the court takes to reach what is otherwise a foregone conclusion. The accomplice testified that Goode was the principal perpetrator, and the factfinder (here, the trial judge) could have believed that testimony. Ordinarily, thats the end of the story; if the factfinder gets evidence that could establish guilt beyond a reasonable doubt, the appellate court will presume that the factfinder accepted that evidence. But here, the court assumes arguendo that Goodes version (in which Goode is far less culpable) is accurate, and still finds him guilty. Im not used to seeing the court deliberately take the long way around to get to the same conclusion; perhaps the judges wanted to make a pronouncement about principals in the second degree.
Trial judges across the Commonwealth will take note of todays ruling in
How can an appellate decision on the admissibility of statements not include the content of the statements? Well, this particularly smart trial judge, in announcing his ruling at the end of a bench trial, found
The first of those relates to photo spreads of possible suspects. Police officers showed each robbery victim identical arrays of six photos on a page. They did so in non-suggestive fashion, telling each victim that their assailant may or may not be on the page. Each picked
Domestic relations When a trial court makes a ruling on child custody, a statute requires that the judge set forth her reasons for the decision she makes. That obligation is at the heart of todays ruling in Artis v. Jones , in which the trial court had held its nose and awarded custody to the mother.
When a trial court makes a ruling on child custody, a statute requires that the judge set forth her reasons for the decision she makes. That obligation is at the heart of todays ruling in Artis v. Jones , in which the trial court had held its nose and awarded custody to the mother.
When it came to the choice of parents, it appears to me that the little boy who is the subject of this opinion didnt exactly hit the lottery. According to the opinion, both parents had significant drawbacks in the parenting department. (Ill let you read the short opinion for the details if you want, but thats my clear impression.) Faced with a difficult decision on where to send the unfortunate kid, the court stated at the end of the three-day hearing, Ive made a lot of notes . . .. Ill go back and review those notes and get a decision out. Three months later, the court issued a letter opinion in which it held that the boys age (four at the time of the hearing), the difficult relationship of the mother and father, and the need for some stability in the boys life, required his placement with one parent or the other. The letter opinion then stated that it had given primary consideration to the childs best interest and had considered all factors contained in Code Section 20-124.3. At that point, Mom got custody and Dad got visitation.
On appeal, the father asserted that the trial court had not followed the statutory command to communicate to the parties the basis of the decision either orally or in writing. Today, the Court of Appeals agrees, and sends the case back for those specific findings. It isnt enough for the trial court to assure the parties, as this court did, that it has considered all the factors; the statute clearly requires it to explain itself (a duty not common to circuit court rulings, where the judge is generally free in other types of cases to give a short ruling and then adjourn court).
Since the case is remanded, the appellate court declines to address the fathers sufficiency challenge, in which he essentially argues that the trial judge should have decided the evidence in his favor. Somehow I doubt that he will eventually prevail on this point, as appellate judges dont revisit credibility determinations (a point that both appellate jurists and I preach relentlessly; but it isnt getting through to the consumers). But for now, the father still has a chance to persuade the trial court of the virtue of his cause.