ANALYSIS OF JUNE 30, 2009 CAV OPINIONS

[Posted July 8, 2009] I’ve been away from the keyboard for a while, on vacation with my family. Accordingly, here is a slightly belated analysis of last week’s four published opinions from the Court of Appeals. (The court handed down no published opinions on Tuesday, July 7.)

Criminal law

Midkiff v. Commonwealth is a fairly straightforward challenge to convictions based on possession of child pornography. Acting on a search warrant, Pittsylvania County authorities seized Midkiff’s computer and turned it over to a forensic scientist for analysis. She retrieved numerous images of child pornography stored on the hard drive; she then burned a DVD and a CD of the images and turned those over to the prosecution.

Midkiff raised two principal objections or the purposes of today’s discussion. First, he argued that the search warrant was based on stale information, since the original study of the child porn web sites had been made 14 months before the date on which the warrant was issued. The trial court actually agreed with him, but it applied the Leon good-faith exception to the exclusionary rule, and permitted the introduction of the evidence. The court held (and the CAV agrees) that the investigating officers had a legitimate basis for concluding that the warrant was legitimate.

A defendant who seeks to overcome a Leon exception has a hard row to hoe. In effect, the rule provides that police officers executing warrant aren’t required to look behind the judicial determination of probable cause, in all but the most egregious of circumstances. And none of those circumstances applied here. The court cites caselaw from other jurisdictions that possessors of child porn aren’t likely to destroy the images they download; they keep them. Thus, the officers had a reasonable basis to believe that the images Midkiff downloaded 14 months earlier would still be on his computer.

The second primary issue in this decision is Midkiff’s contention that the best evidence rule should have barred introduction of the DVD and CD images. He argued that the best evidence would be the hard drive, and that the prosecution should have brought that into court. The appellate court rejects this challenge on two grounds. First, it notes that the best evidence rule applies to writings, not to photographic or video images. Second, it approves the trial court’s finding that a copy of computerized data is, in effect, an original, since the copy is exact. In reality, the first holding would probably have been sufficient to resolve this issue, but the court gives criminal law practitioners some valuable guidance with the “surplus” holding in this case.

How long after a criminal conviction do you think the defendant has to raise an ineffective-assistance argument? Does 15 years sound about right? That’s how long it took the appellant in Draghia v. Commonwealth to head to court to seek a new trial. Draghia is an Austrian national who faced a larceny charge in 1993. He wanted to seek American citizenship, so he asked his lawyer during plea discussions whether a conviction would hurt his chances of ever taking the oath. “No problem,” the lawyer responded; Draghia accordingly entered a guilty plea and got a fully-suspended sentence.

Five years later, he applied for citizenship, but was turned down because of the conviction. That didn’t send him back to court immediately to seek a new trial, but the threat of deportation ten years later did; hence the current proceeding. Draghia sought a new trial, and added a petition for a writ of coram vobis to achieve that.

The trial court denied the original motion under Rule 1:1, specifically rejecting the assertion that an exception to that rule exists for ineffective-assistance challenges. The CAV agrees with this ruling. The trial court refused to consider the coram vobis motion, ruing that it was not properly before the court. The appellate court disagrees, noting that the motion was specifically incorporated into the original motion. But there’s one last surprise here – the CAV declines to evaluate the merits of the coram vobis motion, because that’s a civil proceeding over which the Supreme Court, not the Court of Appeals, has appellate jurisdiction. The court thus transfers the case upstairs for an evaluation of that issue. (If an appellant files an appeal in the wrong appellate court, his appeal isn’t really-most-sincerely-dead. By virtue of a merciful statute, it’s merely transferred to the correct court, and that’s what happens here.)

There are three appellate issues in Ngomondjami v. Commonwealth, but only one is significant enough to make this a published opinion. This is a DUI prosecution, in which the appellant was found asleep in the driver’s seat of his car in a parking lot.

He contended that he wasn’t actually operating the car, but well-established precedent shots him down on this one; you can “operate” a vehicle without moving it, or even attempting to move it.

The novel issue that gets this opinion published is the admissibility of the appellant’s DMV abstract for sentencing purposes. The appellant contended that the prosecution didn’t give him proper advance notice of its intention to introduce that abstract. He also asserted that the record wasn’t accurate, since he had requested one on his own, and the information in the two didn’t match up.

Upon reading the facts section of this opinion, I sensed a novel and juicy appellate issue: The prosecutor hadn’t sent a copy of the abstract to the defense, but had notified the appellant’s lawyer of his “open file” policy. (The abstract was in the prosecutor’s file.) That raises the interesting question of whether a prosecutor can comply with mandatory disclosures simply by inviting the defense lawyer to come on in and scope out what he has.

Alas; no such ruling. The court finds that there was no requirement for disclosure in this case. The appellant relied on a general disclosure requirement in Title 19.2 (relating to crimes), but the court finds that there’s a specific provision for DMV records in traffic cases, including DUI’s. As lawyers know well, a specific provision trumps a general one, so the admission of the abstract was permissible. As for the other potentially meritorious issue – the variance in the records – the appellant scuttled his appeal by neglecting to put his version into the trial court’s record. That means there’s no way for the appellate court to evaluate the issue, so it dies an ignoble death.

Workers’ compensation

If two consenting adults enter into a sham marriage in order to get one of them a green card, are they really married? That’s the primary issue in Marblex Design v. Stevens. Stevens, presumably an American citizen, married an alien in 2003. In 2006, her husband was injured on the job, and he subsequently died as a result of those injuries. Stevens sought survivor’s benefits under the Workers’ Comp Act, but the husband’s employer refused, contending that the marriage was a sham designed solely to get the husband American citizenship.

Well, maybe it was, and maybe it wasn’t. But as far as the Court of Appeals is concerned, it doesn’t matter. That’s because the federal act prohibiting conspiracies to evade immigration laws doesn’t make sham marriages void; it merely criminalizes the conspiracy. Stevens wasn’t charged with any federal crime.

Nor, the court rules, does the marriage offend the public policy of the Commonwealth. There is no specific prohibition in Virginia law establishing a public policy against sham marriages, although other acts are specifically enumerated. And assuming the marriage was, indeed, a sham, that makes it voidable, not void, so the employer can’t mount a collateral challenge to it in this proceeding.