ANALYSIS OF JUNE 3, 2008 CAV OPINIONS

 

[Posted June 3, 2008]  We get three published opinions today from the Court of Appeals of Virginia, two in criminal cases and one in a child visitation appeal.

 

Criminal law

This first one is going to sound awfully counter-intuitive.

 

There’s no question that Kelly Payne was under the influence when she struck and killed a pedestrian two years ago.  She struck a car that had been stopped at a red light, then backed up and sped off, eventually striking the pedestrian as she tried to make a high-speed turn.  She left after that incident, too, but was arrested later that day.  The Commonwealth obtained indictments charging her with felony homicide and aggravated involuntary manslaughter (plus two counts of hit-and-run, which are not at issue in the appeal).  Payne asked the trial court to require the Commonwealth to elect between the two homicide charges, but the trial court allowed both to go to the jury.

 

The jury found her guilty of both homicide charges, and recommended twenty-year prison terms on each.  Payne argued in vain in the trial court that she could not be convicted of both charges, since she only killed one person.  Today, in Payne v. Commonwealth , the Court of Appeals affirms, holding that under the Blockburger analysis, each offense required proof of something that the other did not.

 

Confused?  So was I, as I read well into this short (just over seven pages) opinion wondering how on earth one could be guilty of two homicides when there had only been one death.  But the court finds that felony homicide requires proof that the defendant was committing a felony at the time of the offense, while the manslaughter charge requires proof that she killed a person while intoxicated, and that her conduct was “so gross, wanton, and culpable as to show a reckless disregard for human life.”  Viewed in the abstract (as we are required to do in Blockburger jurisprudence), those two statutes definitely contain separate elements from one another, so the affirmance makes sense.  As I hinted above, it seems highly incongruous to have two homicide convictions where only one person has died.  But today’s opinion cites two recent cases in which just such a result is sanctioned by our own Supreme Court.

 

The other criminal case is Gagelonia v. Commonwealth , involving possession of marijuana with intent to distribute.  This case brings to mind Abraham Lincoln’s famous observation that “The Lord is fondest of homely people; that’s why he made so many of them.”  In this case, Abe’s witticism might apply to people who think they’re smarter than law enforcement authorities.

 

Candidly, I don’t really know if Gagelonia is our guest of honor’s real name; he displayed at least three in the course of today’s opinion, and he only selected Gagelonia to give to the police when they arrested him because it was the name of a friend of his, and “he had once been fingerprinted while using that alias.”  (As you can imagine, someone who starts out like that is not likely to have a lot of credibility at the end of the day.)  But that’s the name at the top of the slip opinion, so that’s what I’ll call him.

 

Gagelonia’s sin was receiving a shipment of marijuana by mail from a supplier in the southwestern states.  In a way, you have to admire the chutzpah of a supplier who chooses to entrust a government agency to make his drug delivery for him; but that’s not central to our story.  When postal inspectors came across a suspicious and familiar kind of packaging (evidently drug dealers have fallen into habits; always a dangerous thing when you’re trying to evade apprehension) and discovered $61,000 worth of drugs inside, they wrapped it back up and arranged for a controlled delivery to the address shown on the shipping label.

 

When the police set up surveillance, they found our hero sitting on the front porch, looking for all the world like someone who’s expecting a package.  The regular mail carrier passed him by, and you’ll never guess what Gagelonia did then – he got in his car and chased after the unsuspecting mailman, evidently had a conversation with him down the street (one might speculate, “Hey, Dude; where’s my package?”), and returned home.

 

Shortly thereafter, the package arrived, in the possession of a postal inspector who was “disguised” as a delivery driver.  She drove by the house (Gagelonia was still sitting there on the porch), parked nearby, and brought it up to him.  He noted that she wasn’t the regular carrier; she deflected the question by saying she had a package addressed to someone named Karen Russell.  Gagelonia obligingly signed the receipt, “J. Russell” and took it into the house.  Officers arrived with search warrants a few minutes later, and found the unopened package and Gagelonia both inside.  Unsurprisingly, Gagelonia denied any knowledge of what was inside.

 

Unfortunately for him, the owner of the house arrived shortly thereafter and confirmed to police that Gagelonia had asked his permission to receive packages at the house.  Postal agents were able to determine that five packages had been sent from Texas to the same address in the previous two months.

 

At this point, I have a confession to make.  Much of the foregoing factual recitation would not ordinarily make its way into one of my case analyses; I try to focus on the legal rulings and the effect they may have on your practice (and I promise to do that shortly).  But in this case, I simply couldn t resist telling you about this comedy of criminal errors.

 

Today, in affirming the convictions, the Court of Appeals deals with several specific issues relating to Gagelonia’s Brady challenges.  He argues that he wasn’t given his cell phone back, so he could prove that certain phone calls were not, in fact, made (the Commonwealth had shown by other evidence that the calls were made).  Similarly, he contended that his Brady rights were violated when the prosecution didn’t give him the videotape of the surveillance, so he could contest the testimony that he had run after the initial postal carrier.  The court notes that each of these is not, in truth, a Brady challenge, since Brady deals with materials that are known to be exculpatory; this is more of a spoliation challenge.  The court rejects these because there is no suggestion that the government acted in bad faith in not handing the materials over, and because Gagelonia could have obtained the information elsewhere (for example, by subpoenaing phone company records).  As for spoliation, the court cites a Supreme Court decision that excludes criminal cases from that doctrine.

 

Gagelonia also argued that he was prejudiced because the prosecution didn’t disclose the terms of a plea agreement with the owner of the house, who was originally charged with conspiracy to distribute the drugs.  The owner had his trial dates continued on several occasions, twice in the immediate wake of continuances in Gagelonia’s trial, and the charges were withdrawn immediately after Gagelonia was convicted.  At trial, the owner testified that he didn’t have a specific plea deal.  When pressed on whether he expected leniency in exchange for testifying against Gagelonia, the owner responded, “Well, I leave that to my attorney to advise me.  I hope for a fair trial, and my attorney is going to do the rest.”  Now, how can you argue with an answer like that?  Gagelonia’s only argument was that it was inherently untrue – his lawyer contended to the trial court, “we all know how these things [plea bargains] work . . .”  The appellate court rules today that that kind of speculation isn’t enough to constitute a Brady violation.

 

Domestic relations

When a statute conflicts with a constitutional right, we all know what the result will be; that isn’t a fair fight.  The court predictably rules that a well-established constitutional right trumps the assertion of a statutory right in Stadter v. Siperko , a case involving a child born by artificial insemination.  The mother was involved in a lesbian relationship at the time, and that relationship lasted until the little girl was abut a year and a half old.  At that time, the couple separated; the non-mother (I would like to use a more elegant designation for her, but candidly, I don’t know a better term to describe her) cared for the child for a time and enjoyed limited visitation rights pursuant to court order, but ultimately a juvenile court ruled that she had no continuing rights.

 

On appeal in the circuit court, the non-mother again lost, although the trial court did find that she was a person with a “legitimate interest” in the child, as defined in Code § 20-124.2 .  Still, the court found that the non-mother had not proven by clear and convincing evidence that she should be awarded visitation.

 

Today, the Court of Appeals affirms.  The most intriguing part of this ruling is the court’s finding that while a non-parent may have a statutory right to some contact with the child (grandparents come immediately to mind, as do step-parents), that right cannot defeat the constitutional right of a fit parent to make decisions on how to raise her child.  No one disputed the trial court’s finding that the mother was a fit parent.  Accordingly, the majority focuses its analysis on whether denying visitation to the non-mother “would be harmful or detrimental to the welfare of the child.”  The court acknowledges that the child would foreseeably suffer some short-term sadness and sense of loss at the separation, but notes that this is not sufficient to show actual harm to her.

 

Domestic relations practitioners will mark this case as the one in which the court specifically declines to adopt the de facto parent doctrine, used in other states.  The court turns aside citations to decisions from those jurisdictions, since Virginia’s public policy differs from those (the only states thus identified are Wisconsin and Pennsylvania).

 

Judge Beales files a short concurring opinion in which he finds that the parental fitness of the mother essentially ends the inquiry; he posits that the only body that can create an exception for non-parents is the legislature, and the General Assembly has not done so here.