ANALYSIS OF JULY 29, 2008 CAV OPINIONS

 

[Posted July 29, 2008]   The Court of Appeals gives us six published opinions today.  We get one decision each in administrative law and Workers’ compensation, plus four in criminal cases.  In the last category, the Attorney General’s Office once again gets a clean sweep of the decisions, as all four sets of convictions are affirmed.

 

Administrative law

Today’s opinion in Culpeper County v. Technical Review Board won’t exactly come as a surprise to many legal observers.  But there are sufficiently few published admin law decisions that you can’t argue with the court’s decision to publish this one.  It deals with the narrow question of just who gets to set the qualifications for local building code inspectors.  Culpeper County’s Board of Supervisors adopted a resolution back in 1991 that required all such inspectors to be engineers or architects.  Somehow, the County Building Official didn’t know about that detail when he took office in 2003, so he authorized inspectors who were not in those fields.

 

When he found out about it, he asked the board to reconsider; this would presumably have given him much greater flexibility in naming inspectors.  But the board said no, so he had to decertify one of the inspectors.  That inspector appealed the decertification, and got the action rescinded.  This reversal was based on the argument that the Building Official, not the board, had the right to set certification requirements.

 

Today, the Court of Appeals reverses, pointing to clear statutory language that authorizes a building official to delegate some of his duties “subject to any limitations imposed by the locality.”  That language pretty clearly indicates that the Board of Supervisors can impose limits on just who will be certified, and upon that basis, the board wins the appeal.

 

Workers’ compensation

In contrast, I am unable to discern with confidence why Herbert Clements & Sons v. Harris is published.  The employer sought a ruling cutting off the employee’s comp benefits, based on the assertion that he had not proved residual incapacity.  It also sought to avoid paying for some purely diagnostic tests.

 

I recall reading last week about a sort of challenge in which authors are tasked to write a story that’s limited to just six words.  The most famous entry was from Hemingway, who tells a tragic story in these few words:  “For sale: baby shoes, never worn.”  (My own entry might be the well-worn, “Too soon old; too late smart.”)  If I had to describe this opinion in that context, I’d probably put it this way:  “Credible evidence supports the ruling below.”  One by one, the court analyzes the three contested issues and finds that there was evidence in the record to support each ruling.

 

The only reason I can discern for the publishing of this ruling is that it collects and approves several previous full commission rulings that hold that an employer can be liable for the cost of diagnostic testing.  I don’t practice enough in this field to know whether this was regarded as an unsettled question, but if it was, today’s opinion ends the debate.

 

Criminal law

I have to start my analysis of criminal cases with the shortest opinion of the day; not because it’s short, but because it has a Class A zinger from the court directed to an appellant who probably should have thought better of the argument he was making.  Pilson v. Commonwealth involves a conviction for driving after having been adjudicated a habitual offender.  Since Pilson had been convicted of this crime before, he had a mandatory minimum jail term to serve.

 

That didn’t stop him from asking the sentencing judge for leniency, in the form of home electronic monitoring in lieu of incarceration.  “No way,” the trial judge responded.  Pilson, undeterred, asked the judge to “let the sheriff impose” home monitoring.  “I can’t do that when you have a mandatory minimum sentence,” the judge responded.  But in the sentencing order – which all careful practitioners will recognize as the only thing that counts – the court subtly changed its ruling to say that it “did not have the authority to authorize the Sheriff” to send Pilson home.

 

As it turns out, either the judge or the sheriff can place a convict on home monitoring, but the sheriff’s authority to do so doesn’t come from the judge; it comes from the Code.  Technically, therefore, the court’s order was correct, in that the judge couldn’t “authorize” the sheriff to take this step.  (The first question, by the way, is answered today with all the subtlety of a slammed door:  The court emphatically affirms the ruling that home monitoring isn’t available when there’s a mandatory minimum sentence.)

 

Now, I promised you a zinger, and I keep my promises.  Noting that Pilson was released on bail after sentencing, and remains free on that bail, the court observes that he has never asked the sheriff to place him on home monitoring.  That makes that question purely advisory, and the court declines to wade in on such an issue.  Nevertheless, a careful reader may be able to discern a glint of the court’s thinking on the ultimate merits of such release from this passage:

 

“Nor has the sheriff decided, assuming he has such authority, whether Pilson would be an appropriate candidate to be released from jail into the program. This discretionary decision would require consideration of Pilson’s prior criminal record which includes, among other things, convictions for failure to appear, felonious escape, eluding police, resisting arrest, assaulting a police officer, escape from custody, hit and run, assault and battery, destroying private property, trespass, breaking and entering, unlawful wounding, drunk driving, drunk in public, curse and abuse, several grand and petit larcenies, and various probation violations. Perhaps the sheriff might nonetheless find it in the public’s interest to release Pilson. We are reluctant to offer a prediction one way or another.”

 

Yeah, right.  (Kudos to Judge Kelsey, a master of understated irony, for the bon mot of the day.)

 

There are some interesting evidentiary rulings in Kilby v. Commonwealth, which involves multiple convictions on child sexual abuse charges.  The three children in the case were Kilby’s grandchildren, aged 11, 7, and 5 at the time of the offenses.

 

We start with a waiver issue that turns out not to be a waiver at all.  The prosecution offered a statement by a detective, who had interviewed the children and had received reports of the abuse.  Kilby objected to the hearsay nature of the evidence; this objection was overruled and the evidence came in.  Kilby later called the same detective to testify to show that one of the children had made a prior inconsistent statement.

 

Ordinarily, when you object to evidence and later introduce evidence of the same character, that constitutes a waiver of the objection.  But in a thinly-sliced legal ruling, the court finds today that Kilby’s original objection could still be considered, since his later offer of evidence was for a different purpose (one who offers a prior inconsistent statement cannot offer it as affirmative proof of the underlying fact).  Thus, Kilby dodges an appellate bullet.

 

But not for long; considering the argument on its merits, the court finds that the evidence was properly admitted for one of two purposes.  And since this was a bench trial, the trial judge is presumed to have disregarded the improper aspect of it, as substantive evidence.

 

The court finds a couple of procedural waivers under Rule 5A:18, that relentless butcher of appellate hopes and dreams.  Both of those arguments die predictable deaths after Kilby failed to object to the substance at trial.  In one instance, the prosecutor asked a question to which Kilby had objected.  The trial court, implicitly sustaining the objection, told the prosecutor, “You may wish to rephrase that.”  The prosecutor did so, and then Kilby sat in silence as the witness answered the rephrased question.  That, as we know by now, equals one waived objection; if Kilby wanted to preserve his objection to the second question (and judging from the issue on appeal, he did want to preserve it), then he had a duty to continue to press his objection.  Remember this:  If you object to the substance of a question, then just getting your opponent to rephrase it won’t suffice.  You need to finish the job by renewing the objection, and telling the trial court why even the rephrased query won’t do.

 

Last year, the Court of Appeals ruled that an affidavit from the Delaware Secretary of State could be introduced into evidence over a Crawford objection, because it didn’t constitute testimonial hearsay.  In that case, the court found that the affidavit, which showed that a given corporation was not registered in that state, was a result of a search of “a neutral repository of information,” so a defendant could not insist on cross-examining the custodian of documents.  (He could have subpoenaed the Secretary if he wanted, I suppose, but that didn’t happen.)  Today, the court extends the reasoning of that decision to a similar affidavit, in Dickens v. Commonwealth.

 

The affidavit in today’s decision indicated that Dickens had failed to register as a sex offender, as required by statute.  (And this time, the affidavit was from within the Commonwealth, sent by the State Police in Richmond to the courtroom in Norfolk.)  Dickens argues in vain that he should be permitted to confront (technically, it’s “be confronted by”; there is a difference) the person who thus “accused him.  This falls on – well, not deaf ears, because the judges do listen to the argument.  But “unsympathetic ears” should suffice as a metaphor, since the panel today unanimously rules that the affidavit is not testimonial hearsay.  The court also finds that the document is an official record, and admissible under that exception to the hearsay rule as well.

 

Finally, the court considers whether the introduction of the affidavit violated Dickens’s Fourteenth Amendment rights.  (It doesn’t violate his Sixth Amendment right of confrontation, because this is a probation violation proceeding, not a criminal trial.)  The court falls back on a line of cases that hold that a defendant gets a diminished set of legal rights in probation proceedings – certainly not the equivalent of those a criminal defendant would enjoy.  That distinction even allows for the introduction of evidence that would be inadmissible at trial.  Here, the Court of Appeals acted within its discretion in admitting the evidence, given the probable reliability of the statements in the affidavit.

 

Anybody who handles criminal litigation knows about the US Supreme Court’s ruling in Crawford v. Washington, in which it held that the Sixth Amendment forbids the use of testimonial hearsay in criminal cases.  Subsequent litigation has focused on just what constitutes testimonial hearsay.  Today, the Court of Appeals decides Caison v. Commonwealth, involving the use of an audio recording of a 911 call.

 

Caison and a man named Green got into a fight pretty much as soon as they were introduced by two mutual friends.  Green punched Caison, after which Caison fled.  Green chased him and eventually caught him.  During this second encounter, one of the men pulled a knife; Caison stabbed Green four times with the knife and immediately ran away.

 

The two women who had introduced the men came upon the scene to find Green bleeding and unconscious.  One of them tearfully called 911, evidently on a cell phone, and described the situation to the dispatcher.  During the call, the caller identified Caison as the stabber, described him, and told the dispatcher which way he had fled.  The dispatcher gave some first aid directives and evidently stayed on the call until rescue personnel and police arrived.

 

Green later died of his wounds, and Caison was charged with manslaughter.  The prosecution offered the 911 tape into evidence, and the trial court admitted it over Caison’s Crawford objection.  Today, the Court of Appeals affirms that ruling, citing a US Supreme Court case (post-Crawford) holding that a 911 tape, under pretty much the same circumstances as we have here, was non-testimonial because the purpose of the call, and the information conveyed in it, was to deal with the existing emergency, not to record one’s statement for evidentiary purposes.  With a pedigree like that from Washington, this doctrine gets a predictable seal of approval from the Court of Appeals, and Caison gets plenty of time in prison to mull over his fortunes.

 

There are a couple of other rulings in today’s opinion that merit some mention here.  The court defers to the trial court’s finding that the tape was not more prejudicial than probative, and turns aside Caison’s sufficiency challenge, noting that the factfinder had the right to disregard his testimony as self-serving.  This latter ruling scotches many sufficiency appeals, as the court will afford the factfinder (whether that’s the judge or jury) the right to decide which witness to believe.