ANALYSIS OF JUNE 10, 2008 CAV OPINIONS
[Posted June 10, 2008] The Court of Appeals of
Hopson v. Commonwealth probably doesnt break any new legal ground, but its always good to get additional guidance on challenges for cause to veniremen, which is the only issue in todays opinion.
The judge who presided at this manslaughter trial must have been a man of prodigious patience. He permitted the defense lawyer to engage in a lengthy voir dire that most other judges I know would have cut off. The questions included lengthy hypotheticals and a few gotcha questions that were ostensibly designed to awaken the potential jurors to a subliminal bias against criminal defendants. For example, he asked the venire, Do you think Mr. Hopson is guilty? He gave them three choices: Guilty, not guilty, or I dont know. The venire unanimously went for the last choice, but then he told them that the correct answer was not guilty, citing the presumption of innocence.
[Memo to self Never, ever try this kind of tactic in federal court.]
There was some colloquy between the lawyer and the veniremen on this and other questions, after which the prosecutor undertook to rehabilitate some of them by eliciting promises that they could understand and obey the trial courts instructions on things like presumption of innocence and the defendants right to choose not to testify. The trial court struck two of the veniremen for cause, but Hopson objected to its refusal to strike six others, and thats the sole basis of this appeal.
The Court of Appeals rules today that there was no error in leaving the six veniremen on the panel. It notes that even where, for example, a prospective juror says she would take the stand herself if she were accused of a crime, such a response doesnt disqualify her if she agrees to follow the judges instructions at trial.
One other approach goes down in particularly spectacular fashion. The lawyer posited a situation where Junior comes home with a bad-boy note from school, but in response to the parents questioning, the kid clams up and invokes his Fifth Amendment right not to speak. The lawyer then asks the venire to Raise your hand if youre not putting up with that at home. Of course not, the venire answers. How, then, the lawyer the retorts, could you possibly put up with that in a trial?
Unfortunately for Hopson, the author of todays unanimous opinion is smarter than he is. Judge Kelsey responds, The answer is too plain to say. Because the defendant in not my schoolboy son, and the courtroom is not my home.
[Second memo to self Keep a copy of this opinion handy, in case my daughter gets any Fifth Amendment ideas in Civics class, and tries to use them around the house.]
The issues in todays other criminal decision, Podracky v. Commonwealth , are nowhere near as clear, and todays opinion is a difficult read. Podracky was prosecuted for using a communications system to solicit a person he knew or had reason to know was a minor for certain sexual offenses. The issue here is a facial challenge to that statute.
I have read this opinion twice now, and have come to the conclusion that unless my analysis is to be longer than the opinion (12 pages), I will have to discuss the issues decided in summary fashion. Accordingly:
- The court assumes without deciding that Podracky has standing to make a facial challenge to the statute. In doing so, it refers to the recent Supreme Court decision in Jaynes v. Commonwealth, involving a facial challenge to
- The statute isnt facially overbroad under the First Amendment. Remember the difference between a facial challenge and an as-applied challenge. A facial challenge means the defendant thinks the statute is unconstitutional in the abstract, without regard to his particular set of circumstances. The other type of challenge asserts that the application of the statute to this defendant is unconstitutional. (To give you a crude example, a city council can implement reasonable restrictions on the right of citizens to speak at council meetings. You cant speak out of turn, for example, or go on for hours and hours. But if the council used that policy to deny anyone who isnt a Christian from addressing the body, then that restriction would be unconstitutional as applied to a Jewish speaker.)
- Hobson thought he was sending his little naughtygrams to a 16-year-old girl. In fact, he was sending them to a very adult police detective who was posing as the girl in an Internet chat room. He contended that what he did wasnt, in fact, criminal, because he wasnt sending anything naughty to a juvenile. The court finds that this raises an issue of factual impossibility, and under well-established precedent, that gets him nowhere. (If it were legal impossibility, then hed be on solid ground; you cant, for example, be convicted of felonious attempted singing badly, since singing badly isnt a crime. Well leave my opinion of Stevie Nicks vocal ability out of this discussion, to avoid any possible defamation concerns.)
Theres a short opinion today in Gooch v. Harris , on adoption. The child in this case was demonstrably in need of a different set of parents so the trial court found, with the father in prison for the long haul and the mother a drug user. The childs great-great aunt and uncle filed an adoption petition, and the trial court granted it, finding that the adoption was in the best interest of the child. The mother appealed, contending that the trial court never found that it would be detrimental to the child not to order the adoption.
The trouble with this contention, the Court of Appeals rules today, is that its been superseded by statute. Once upon a time (and as recently as 2006), adoption law did require a finding of detriment. But that year, the General Assembly amended the statute, so that it now requires only a best-interests finding. Thats exactly what the trial court did, so the judgment in favor of the aunt and uncle is affirmed.
In my view, the only reason why this opinion is published is to highlight to practitioners and trial courts the new statutory provision.