ANALYSIS OF JUNE 22, 2017 SUPREME COURT OPINIONS

(Posted June 22, 2017) The Supreme Court of Virginia hands down two published opinions today.

Criminal law

The court takes up evidentiary issues in the context of a murder appeal in Carter v. Commonwealth. A jury convicted Carter of the death of his on-and-off paramour. The prosecution showed that Carter shot the victim in her home, while her two young sons were in the house. The confrontation occurred in her bedroom, where the victim and Carter were the only persons present.

After the shooting, Carter walked away, saying something to the children about an ambulance. He immediately called the victim’s mother to tell her that the victim had been shot and would be dead. He then called his boss and quit his job, saying he had done “something bad” that would be on the news.

Convinced yet? You have to admit that the evidence is overwhelming. But Carter claimed that he acted in self-defense – that the victim had been violent in the past and had told her mother that Carter “wasn’t going to be around long.”

At trial, Carter subpoenaed the mother, but she was hospitalized unexpectedly. Carter moved for a continuance, but after hearing a proffer of what she would say, the court refused. The court reasoned that the ostensible threat was conveyed to the mother, not to Carter, so it could not have affected his decisions on the night of the shooting.

During Carter’s case in chief, the court allowed him to tell the jury about some recent incidents where the victim had been violent, but barred him from adducing evidence about other such incidents years earlier.

During the jury’s deliberations, Carter objected to the prosecutor’s argument to the jury, contending that it was inflammatory, but the court overruled it. Carter also recalled one of his own witnesses who had given less-than-helpful testimony. That witness told the judge that his trial testimony had been false, and that the truth was more exculpatory.

I will ask my longtime readers to brace themselves before reading on: Despite this important revelation, Carter did not move the court immediately for a mistrial. Instead, he waited for the verdict to come in; after the jury found him guilty, Carter then asked for that mistrial, but didn’t get it.

The Court of Appeals affirmed the conviction. Today the justices unanimously affirm. The court holds that the limitation on evidence of the victim’s prior alleged acts of violence was within the trial court’s discretion. The justices assume without deciding that the exclusion of the mother’s proffered testimony was erroneous, and rule that it was at most harmless error in light of the other evidence of guilt.

The justices finally take up the issues of the prosecutor’s argument and the recanted testimony, but predictably find both of these issues waived. As for the jury argument, the law is well settled that you have to move for a mistrial before the jury begins to deliberate, so the judge can re-instruct the jurors if necessary. Once the door closes and deliberations begin, it’s too late to ask for a mistrial. On the recanted evidence, the justices find that Carter should have moved to treat the witness as hostile as soon as his testimony varied from what Carter expected. Waiting until deliberations begin to proffer the recantation, and until after the verdict to seek a new trial, is too late.

Trusts and estates

The parties argued Gelber v. Glock to the court in the February session, 16 weeks ago. When you see Justice McClanahan’s 39-page opinion, you’ll understand the reason for the time it took to ready today’s decision. It’s a suit between siblings over Mom’s property, with two of them suing as executors and trustees.

Because of the length of the opinion, the wealth of facts, and your limited time, I’m going to cut to the chase and lay out the many rulings in this unanimous decision.

• When a person sets up a revocable trust that names herself as the trustee, she can revoke that trust by giving notice to herself. Because sending yourself a note seems hyper-technical, the law allows a settlor to revoke by the simple act of delivering a deed, signed in her own name.
• Under the modern Dead Man’s Act, all sorts of otherwise inadmissible statements by the settlor/testator are admissible to show undue influence. The court notes that some very old caselaw – Wallen v. Wallen from 1907, which limited such statements to those made at the time of execution – is overtaken by the modern statute.
• You can’t establish the value of real property by introducing a tax assessment. The public-records exception to the hearsay rule seems to allow this, but the exception doesn’t allow hearsay statements of opinion, and the value of land is inherently a matter of opinion.
• A plaintiff can establish a prima facie case of undue influence by proving either “great weakness of mind and grossly inadequate consideration or suspicious circumstances,” or “that a confidential relationship existed between the grantor and proponent of the instrument.” Because the plaintiffs here adduced evidence that a reasonable juror could have found met those two criteria, the trial court here erroneously struck their case on undue influence.
• The court also erroneously struck the executors’ claims of promissory fraud. Normally a fraud claim can’t be predicated on a promise to perform something in the future. If it were otherwise, then every breach-of-contract plaintiff could throw in a fraud count. But if the plaintiff proves that the defendant made a promise while having no intention of performing it, that states a valid fraud claim. I will leave to your imagination the question of how one proves another’s intention at a specific point in time.
• Establishing a civil conspiracy claim requires proof of an underlying tort, including resulting damages. When the relief you want is rescission of a suspect contract, not damages, and you’re simultaneously stating separate tort counts for the same conduct, you can’t get rescission. This, I suspect, is an election-of-remedies cousin: A plaintiff can choose to repudiate the contract and try to get out from under it, or else embrace it and claim damages. He can’t do both.

The justices accordingly affirm in part, reverse in part, and remand the case for a new trial. The court vacates an award of attorney’s fees to the appellee, since that depended on the now-vacated judgment in her favor.