ANALYSIS OF JULY 28, 2009 CAV OPINIONS

 

[Posted July 29, 2009]  Yesterday, the Court of Appeals handed down a bounty of five published opinions.

 

Criminal law

It took a while for the justice system to catch up with Glen Jones, Jr., but on the third try, it got him.  Charged with second-degree murder and a companion firearms offense, he endured two mistrials and a nolle prosequi before he was finally convicted.  During sentencing the jury sent in a question, asking whether Jones had already served time in custody.

 

It turns out that he had; seventeen months of it.  He asked the judge to so advise the jury, but his Honor refused; instead, he gave the jury the standard “you are not to concern yourselves with that” instruction and sent them back in to deliberate.  The jury eventually recommended ten years for the murder, plus the mandatory three years on the firearm charge.

 

In Jones v. Commonwealth, the Court of Appeals affirms.  It rules that the defendant in a bifurcated proceeding can introduce relevant evidence, but that this issue of time-served wasn’t relevant.  It doesn’t relate to any of the six factors identified in the capital-murder statute (made applicable to noncapital cases in 1999 by a Supreme Court decision), and the CAV sees no reason why the judge should have ruled otherwise.  Jones will get credit for the time he served, of course; but he lost the opportunity to ask the jury to go easy on him on account of all the time he had already spent in the pokey.

 

Back when I worked in Virginia Beach City Hall, I learned one crucial difference between DUI cases and suspended OL charges.  You can be convicted of DUI if you operate a motor vehicle anywhere in the Commonwealth, including in the middle of a cornfield; but one can only violate the prohibition against driving on a suspended license if you do so on a highway.  The Code defines highway broadly; it doesn’t have to be a major Interstate-style road to qualify.  The same definition applies to someone who drives after having been adjudicated a habitual offender; he’s safe in the cornfield but in jeopardy once he hits a highway.

 

The Court of Appeals gives us its latest take on what counts as a highway in Seaborn v. Commonwealth.  Seaborn was nabbed while driving on a road in a private apartment complex in Portsmouth.  It wasn’t a gated community, as anyone could drive through.  The court holds that this fact – “accessibility to the public for free and unrestricted use” – creates a presumption that the road is a highway.  The court distinguishes a couple of earlier cases that had held that a private apartment parking lot and a gas station were not highways.  In those cases, the purpose for the areas wasn’t public transit; it was parking or private business.

 

Obviously, while this is an HO case, the same reasoning will apply to charges of driving on a suspended license, so attorneys handling those cases should be aware of this ruling.

 

The next case poses an interesting philosophical question:  Can a person be convicted of an offense that requires proof of putting a person in fear of serious bodily harm, where the evidence shows that the defendant (1) didn’t possess a weapon of any kind; (2) never touched the victim; and (3) never made any explicit threat of harm?  We get the answer in Pressley v. Commonwealth.

 

According to the jury’s verdict, Pressley called for a pizza delivery one night.  When the deliveryman showed up, Pressley approached him in the dark, wearing a mask that covered the lower half of his face.  He demanded first the pizza, then the deliveryman’s money, then the car keys.  His questions were, if not exactly polite, not overtly threatening, in that he never added an “or else” at the end.  The driver eventually surrendered the keys, and Pressley drove off in the car.

 

Carjacking requires proof that the defendant stole a car by means like force, violence, assault, or threatening serious bodily harm.  Pressley argued at trial that he had done none of these things, but the trial court disagreed; the jury convicted him of both robbery and carjacking.  (In case any of you Double-Jeopardy whizzes are wondering about the two convictions, remember that the defendant stole cash before demanding the car keys.  That’s a separate offense.)  The CAV granted a writ to review the carjacking conviction.

 

The court affirms.  It holds that these circumstances were plainly sufficient to cause the driver to fear serious bodily harm, even though there was never an explicit threat.  The court note that this was certainly a permissible conclusion, given these facts:  “The jury, [which] had the opportunity to observe the witness and weight the evidence, was entitled to infer that the victim surrendered his vehicle because he was intimidated.”  Note that this is a subjective test – was the victim actually intimidated? – rather than a subjective one – would a reasonable person have been intimidated?  This conclusion makes eminent sense to me; I cannot envision a defendant who successfully persuades a jury under these facts that he wasn’t conveying at least a clear implicit threat, and that’s enough under this statute.
 

I found one somewhat surprising ruling in the last criminal case of the day, Kolesnikoff v. Commonwealth.  The defendant was convicted of custodial indecent liberties (taking indecent liberties with a juvenile over whom the defendant had custody).  The recited facts leave little doubt of the sufficiency of the evidence to convict, and the defendant’s appeal on that ground seemed destined to fail from the start (as it eventually does in the CAV’s opinion).  The intriguing issue is a procedural one that merits only a single paragraph from the court.

 

The Commonwealth secured a direct indictment of the defendant after taking a nolle prosequi in the JDR court.  In circuit court, the defendant contended that the prosecutor didn’t show the required good cause for a nolle pros, but the appellate court, citing an en banc decision from last year, rules that the circuit court has no jurisdiction to review the grant of a nolle pros in a lower court.

 

Now comes the interesting issue:  The defendant raised a new argument in the appellate court.  Normally, that’s bound to produce a stillborn appeal.  But the defendant contended that the juvenile court had exclusive jurisdiction to conduct preliminary hearings in cases involving juvenile victims, so direct indictment was improper.  Lack of subject matter jurisdiction is one of the big exceptions to the contemporaneous objection rule; arguments like that can be raised at any time.

 

The court treats this as any old waiver issue, with a citation to Rule 5A:18 and little else.  It doesn’t try to differentiate this argument from the rule permitting “late” challenges to jurisdiction; it just tells the defendant, “Too late, Bub.”  The court might well have concluded that this argument went to some other aspect of jurisdiction that is subject to waiver; but it doesn’t even try to say so.  I found that what the court did not say in this opinion to be more interesting than what it did hold.
 
In case you’re keeping score (and I’m not; but surely somebody is, somewhere), that’s Prosecution 4, Defense 0.
 

Workers’ compensation

Every comp lawyer knows that an injury isn’t compensable, even if it happened at work, unless it arose “out of and in the course of the employment.”  In the past, the Court of Appeals has regarded employee horseplay as one of those attributes of the work environment, but we see a different result in Simms v. Ruby Tuesdays.  There, an employee injured his shoulder when some fellow employees started playfully throwing ice around.  Simms put up his arm to protect his face from the flying ice, and dislocated the shoulder in the process.

 

A deputy commissioner thought the injury qualified for comp benefits, but the full commission reversed, based on an intervening 2008 decision from the Supreme Court in Hilton v. Martin.  In that case, the Supreme Court held that if the horseplay was directed to the employee personally, it didn’t arise out of the employment; only if the employee was targeted because of his status as an employee would the injury be covered under the Act.

 

Here, the CAV agrees with the full commission that, under the Hilton standard, there was nothing about the ice barrage that was motivated by Simms’s status as an employee.  The case is particularly noteworthy for the court’s questioning the continued vitality of a 1986 CAV decision, Dublin Garment v. Jones, which had ruled that an employee injured as an “innocent victim of horseplay” by fellow employees was entitled to compensation.  Simms can now choose to sue his fellow employees for his injuries, but low-level employees at chain restaurants are not widely known for carrying umbrella policies, so his prospects of recovery are probably guarded at best.
 

I have one loose end to tie up from last week, when the CAV released a single published opinion, also in a Workers’ Comp appeal.  The case is UPS v. Ilg, and addresses the specificity of an agreement to pay benefits.

 

The employee suffered a fall on the job as a delivery driver, and filed a claim for benefits for injuries to his hand and knee.  The employer accepted the claim and voluntarily paid benefits.  The parties then signed an agreement that described the injury as “Pain in Right Knee.”  There was no mention of the hand injury.  The commission ordered the payment of benefits accordingly.

 

You already know what happens next – the employee’s doctor found that the knee injury was resolved, but thought that the hand injury still prevented him from working.  When the employer got a good look at this report, it offered the employee vocational rehabilitation.  The employee pointed to the medical report that said he still couldn’t work at all (because of the hand injury) and declined the rehab.

 

That sent the employer straight to the commission, seeking a hearing to terminate benefits for the employee’s refusal to start rehab.  A hearing examiner and then the full commission denied the request, sensing that the omission of the hand injury from the agreement form was “likely due to poor preparation,” and that the employer did not contest causation.

 

The Court of Appeals reversed.  It noted that the employer had never accepted the hand injury as compensable; nor had there ever been a hearing on whether that injury was, in fact, compensable.  The court declines to apply two exceptions that might have provided coverage (de facto awards and the “full and complete justice” exception), so the matter heads back to the commission for the hearing that the employer had sought.

 

This opinion is also noteworthy for one additional holding.  It’s well-established that an employee who refuses an offer of available suitable work, even light duty, thereby absolves the employer of paying compensation benefits.  In this case, the court applies the same rule of disqualification to employees who refuse to cooperate with vocational rehabilitation.