ANALYSIS OF JULY 27, 2010 CAV OPINIONS[Posted July 27, 2010] Criminal appellants went to the appellate well three times today and came up empty each time.
All criminal-law practitioners know about the US Supreme Court’s landmark 2004 decision in Crawford v. Washington, which swept away numerous hearsay exceptions in criminal cases by virtue of the Confrontation Clause. Today the Court of Appeals finds that one of those traditional exceptions survives even Crawford; the case is Satterwhite v. Commonwealth, and involves a dying declaration in a murder prosecution.
The victim clearly identified Satterwhite as his assailant in the hour after he was shot four times. Despite his grievous wounds, he lasted another six weeks before expiring. The prosecution sought to introduce the identification at the trial, and the trial court overruled Satterwhite’s motion to suppress. Today’s opinion affirming the murder conviction contains several interesting rulings, some of which might be surprising to you. Behold:
First, the law applicable to dying declarations requires that the victim sense his impending death, but it doesn’t require that he say something like, “I know I’m going to that great ball field in the sky.” That fact can be proved by other evidence, specifically including the seriousness of his wounds. This victim had been shot thrice in the chest and once in the head, so it was obvious that he was in serious medical trouble.
Second, the fact that this victim survived for several weeks doesn’t vitiate the status of the statement as a dying declaration. Caselaw establishes that the length of the interval between statement and death “is an immaterial matter,” so long as the victim perceived that he was on his way out. (This makes perfect sense when you think about it.)
Third, several post-Crawford cases (and even Crawford itself) recognize that some exceptions to the right of confrontation remain, and dying declarations are among those. (The Crawford opinion even refers to such declarations, calling the exception “sui generis.”)
The next case, Hunter v. Commonwealth, presents an intriguing argument by a probationer who just couldn’t bring himself to behave once he got back on the streets. Convicted in 2002 of grand larceny, Hunter got a four-year sentence, with all but 22 months suspended conditioned upon his completing a term of three years of supervised probation. He was released early the next year (evidently had some credit for time served), but 14 months after that, the probation officer advised the trial court that he had been unable to continue behaving. The court issued a show-cause order.
It was several years before the authorities found him in a likely spot – the Fairfax County Jail. They served him with the show-cause order. But those authorities, it seems, had a problem. A statute, in effect on the date of the conviction, required that the defendant be brought before the court on any probation-revocation proceedings within one year after the termination date of his probation. That date was long gone by the time the order was actually served on Hunter, so it looks like he’s going to skate on this one.
As my introductory paragraph has already blabbed, Hunter loses the battle and the war. Today, the CAV panel affirms the reimposition of the suspended sentence. As for that statute? The court notes that it was amended in 2002, eliminating the one-year rule; as it reads now, the only thing that has to happen within a year is that the court must issue the rule within that time, and that definitely happened here. Hunter contended that he had a right to be processed under the laws in effect at the time of his conviction. But the CAV notes today that this was a procedural statute that dealt with the regulation of his probation. The legislature always has the right to change procedural rules, upon which no one can obtain a vested right. And at the time his probationary period began, the statue had already been changed.
The defendant in Armstead v. Commonwealth was pulled over by a police officer at a singularly unpropitious time – while his license was suspended, and there was a stash of marijuana and cocaine in the car. In such an emergency, he came up with a clever ruse to avoid being arrested and prosecuted: He lied to the officer about his identity.
Well, in retrospect, perhaps this isn’t the first time in the history of law enforcement in the Western Hemisphere that someone has tried this routine. The officer smelled a rat, and when the driver’s name came up empty in the DMV registry, the driver explained that he was licensed in the District of Columbia, not in Virginia. He assured the officer that he had a valid license up there.
That nuance might have worked a few decades ago, but these cops have fancy computers in their cars nowadays. You can lie to them about being licensed anywhere this side of Zimbabwe, and they’ll see through it in a matter of minutes. Since the officer had no way to know in what name he should issue the traffic summons (and thus no assurance that he’d have a breathing defendant at trial), he arrested the driver. A subsequent search of the vehicle turned up the stashes.
Convicted of the two drug-possession charges, plus driving on a suspended OL (Armstead was in the DMV database after all, with a suspended license) and lying to an officer, the driver appealed. The Court of Appeals affirms the trial court’s finding that the search-incident was lawful, despite the issuance (after the date of Armstead’s conviction) of Arizona v. Gant by the US Supreme Court. In Gant, the Big Supremes had limited the availability of vehicular searches to specific situations. The Commonwealth argued that Armstead hadn’t made a Gant argument in the trial court. (Really, now; how could he? The doctrine hadn’t even been born as of the time Armstead stood before the trial judge.)
That argument would actually be fatal to Armstead’s cause, as sniper John Muhammad found out in 2005 when he tried to append a similar after-born argument to his appeal, based on a Crawford violation. Too late, the Supreme Court noted, essentially telling litigants that they have to anticipate future changes in the law, or else lose the issue to a waiver ruling. The CAV is more charitable to Armstead here, assuming without deciding that the Gant argument was timely raised, but then finding that the new doctrine didn’t bar this search.
In a subsequent section of today’s opinion, the court rejects a sufficiency challenge, but the Gant-based ruling is the reason why this one’s published.