ANALYSIS OF MARCH 17, 2009 CAV OPINIONS

 

[Posted March 17, 2009]  Three new published opinions hit the wire today from the Court of Appeals.  Two of those are in criminal cases (and today, the Attorney General bats 1.000) and one involves equitable distribution.

 

Criminal law

There’s one en banc decision today, in Clanton v. Commonwealth .  It involves a question of intent in an abduction appeal.

 

Armed robberies are especially troublesome crimes.  Once upon a time, guys like Robin Hood could commit this crime with dignity and grace – at least so the legend goes – but in reality, these crimes are terrifying, and are punished very seriously.  In this case, there’s the added complication of a baby girl.

 

This was a home invasion robbery.  The robbers talked their way into the house with a fake story of car trouble.  Shortly thereafter, one of the robbers was pointing a gun; the initial victim found himself bound and gagged with duct tape.  The robbers then searched the house.

 

When they entered a bedroom, they found a man, a woman, and a baby sleeping.  They bound the man and then dragged the woman into another room, where they bound her, too.  That left the baby girl.  The male victim cried out to the robbers, “My daughter is in here.”  Evidently in response, one of the robbers took the child into the room where the bound woman lay and threw her onto a bed, telling the woman, “Watch her.”  (How she’s going to be of much value in a supervisory capacity while bound hand and foot is a question that evidently did not occur to the intruders.)

 

At trial, a jury got Clanton; he was convicted of three counts of attempted robbery and three companion firearms counts.  He also found himself on the wrong end of abduction (of the baby girl) and yet another companion firearm count.  These latter charges are the only ones at issue in today’s opinion.

 

The fulcrum of this appeal is whether the robbers had the specific intent to abduct the baby.  Under the current Virginia statute , asportation (carrying the child away) isn’t necessary at all; the only thing the prosecution had to prove was that the robbers seized or took the child by force or intimidation, with the intent to deprive her of her liberty, or to withhold her from her lawful custodians.  The clear majority of the court (Judge McClanahan writes for herself and eight colleagues) finds that the evidence permitted the factfinder – here, the trial judge, sitting without a jury – to infer that the robbers had that requisite intent.  But a short dissent (Judge Elder, joined by Judge Haley) finds that the evidence, even viewed in a light most favorable to the Commonwealth, also leads to another conclusion, which was that the robbers actually had the more altruistic purpose of removing the child from harm’s way, in response to her father’s pleas.

 

The majority responds that in a home invasion like this one, there is no safe place in the house; armed intruders are stomping around the home, looking for money to steal.  Upon reading this set of facts, you will feel no sympathy whatsoever for Clanton and the other robbers.  But you will have to come to grips with what this case says about how a factfinder can evaluate evidence and draw inferences.  For example, if the evidence permits two conclusions, one of which is consistent with innocence and the other of which points to guilt, a factfinder can’t arbitrarily adopt the latter.  That tends to support the dissent’s view.  But as the majority notes, a decision like that is arbitrary only if no reasonable factfinder could have reached that conclusion.

 

My sense is that the trial judge was perfectly within her rights to draw the inference that moving the child down the hall was but part of the entire robbery, and unquestionably withheld her from her father.  Whether the robbers had a moment of sympathy isn’t the issue here; they unquestionably took the child away from its father, and that’s enough to satisfy the statute’s requirements.

 

As I often note, you should always pay careful attention to en banc rulings from the CAV.  They represent the view of the entire court, not merely a panel of three judges, and are accordingly afforded greater deference than any other ruling at this level.

 

If you’re intrigued by the catchy title, Everything You Always Wanted to Know About Chain of Custody (But Were Afraid to Ask), then Hargrove v. Commonwealth is just the case for you.

 

This case is about mary-gee-whana; almost nine pounds of the stuff.  Hargrove hit upon the sensible idea of not transporting the evil weed himself; he delegated that task to Federal Express.  Past crooks have foolishly given their packages to the US Postal Service, but nailing those guys is just too easy, to the point that they probably don’t even publish those opinions anymore.  But FedEx?

 

Well, bad news for the dealers of Virginia.  The police check out FedEx packages as well, using drug-sniffing dogs.  When one such animal alerted on a package addressed to a fictitious name at Hargrove’s address, the gendarmes got a search warrant and found the marijuana inside.  At this point, a familiar drama unfolds:  The police repackage the box, and an undercover officer poses as a delivery driver.  He dropped off the package with Hargrove, since the fictitious addressee coincidentally wasn’t available to come to the door.  A few minutes later, officers executed the second search warrant, this one to check out the house.  They found the box and Hargrove both inside.  They also found a gun on Hargrove’s jacket on a kitchen table.

 

As noted above, the primary issue in this appeal is the discussion of the chain of custody of the drug package.  Here is the factual recitation from today’s opinion:

 

“Detective Killingsworth placed the contents of the seized package into an evidence container, sealed it, and placed his initials on the seal. Thereafter, Detective Killingsworth accompanied Detective Wooten, who took the container to the police evidence storage facility where it was placed and secured. On October 10, 2006, the evidence container was received by the Division of Forensic Science laboratory located in Richmond, and there assigned a unique case number. On November 29, 2006, forensic lab analyst Corrie Meyer retrieved the container, sealed and initialed in a manner approved by the Division of Forensic Science, from a locked storage area within the Division of Forensic Science lab. Meyer broke the seal on the container, analyzed its contents, and prepared a certificate of analysis.”

 

Guess what?  It was grass.  A hundred and forty-three ounces’ worth, well over the five-pound threshold for an enhanced level of this offense (possession with intent).  But Hargrove’s lawyer noticed that no one at the storage facility had testified about receiving the container.  Sensing a break in the chain of custody, she moved to suppress.  The trial court denied that motion and convicted Hargrove.  Today, on appeal, a unanimous panel affirms.

 

The Reader’s Digest version of the discussion is that chain-of-custody evidence doesn’t have to include testimony from every stock clerk and every janitor who mops the floors; it merely has to “provide ‘reasonable assurance’ that the evidence obtained by the police was the same evidence tested.”  The Commonwealth isn’t required to exclude every theoretical possibility of tampering.  Here, the court finds that there was evidence in the record that the police appropriately seized, packaged, labeled, stored, recovered, and analyzed the package, so the trial judge properly received it in evidence.

 

Hargrove also challenged the evidence that he knew he had more than five pounds’ worth of the stuff.  The court finds this argument just shy of preposterous (that’s what the phrase, “wholly without merit” means in appellate-ese).  It includes in today’s opinion a deft quote from an English case that’s too good not to repeat here:  “As Lord Morris so aptly noted, ‘Those who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in. Knuller v. DPP, [1973] A.C. 435, 463 (H.L.) (appeal taken from Eng.) ( U.K.).”

 

Domestic relations

Practitioners in the domestic field will want to check out Lewis v. Lewis , which discusses several issues arising out of qualified domestic relations orders.  The parties separated in 2003 after almost twenty years of marriage.  Husband worked for Philip Morris, and evidently did pretty well; his profit-sharing account balance was over $1.1 million when he took early retirement at the age of 53.

 

After separating, the parties signed a property settlement agreement that entitled the wife to half of the value of the marital share of the profit-sharing account, among other things.  It was designed to provide her with income for life.  But when husband took that early retirement two years after signing the PSA, he accidentally neglected (I’m speaking figuratively here) to set things up so the wife would get her half.  There’s no word in the opinion that he went to Vegas and blew it at the baccarat tables, but his failure to set up an annuity for the wife resulted in the permanent loss of her ability to get that lifetime income.

 

Today’s opinion focuses on four issues, and while my mastery of domestic relations law is a tad below complete, I sense that two of the rulings are the primary reasons why this opinion is published.  There’s also a benign-looking ruling that might have significant repercussions, in this field and elsewhere.

 

In the first ruling, the court rules that “1/2 of the marital share” of the profit-sharing account includes an interest in the account’s appreciation after the date of separation.  Practitioners might be mentally comparing this ruling with a couple of previous cases where that appreciation wasn’t included in calculating the marital share.  The court distinguishes those two holdings by noting that this particular issue wasn’t genuinely at stake in one of the holdings (Fahey v. Fahey in 1997), and that in the other (Baker v.Baker in 2002), the PSA fixed the value “as of” a certain date.  This PSA didn’t contain that language.  Accordingly, the language of each individual PSA, not a hard-and-fast rule of law, will determine whether that appreciation gets awarded.  (I will leave this discussion without speculating on the effect of depreciation of the account by the kind of market factors we have seen in the past few months.)

 

The other issue was the trial court’s order that the husband obtain a life insurance policy with the wife as the beneficiary.  Pursuant to paragraph (G)(2) of the equitable distribution statute , trial courts aren’t authorized to do that, so this aspect of the judgment is reversed.  But that doesn’t leave the wife high and dry on this point; the CAV panel felt that “wife may be entitled to some remedy for husband’s frustration of her rights under the PSA,” so it remands so the trial court can fashion a more appropriate remedy.

 

There’s one other noteworthy ruling, and it relates to husband’s complaint about the trial court’s award of attorney’s fees to the wife.  The trial court had given the parties a deadline to submit their fee claims and supporting evidence, and the wife’s attorney missed that deadline.  The court gave wife fees anyway, and the husband contended on appeal that it was improper to do so when the court had set a specific date.

 

The CAV affirms the award, noting that “in this case, the attorney’s fees would be incomplete and speculative if filed prior to the completion of the argument. For this reason, the trial court reasonably accepted this evidence at the end of the parties’ arguments rather than with the rest of the evidence.”  That is, you can’t make a full claim for fees before the conclusion of the last hearing, so it’s reasonable to allow a party to submit that claim at the end of the case instead of beforehand.

 

I detect the unmistakable sound of a can of worms being opened here.  New Rule 3:25, which takes effect in May, permits a trial court to “in advance of trial, establish a procedure to adjudicate any claim for attorney’s fees.”  While the rule obviously doesn’t govern this case, the trial court seemed to have done just that here, and then ignored the deadline it set for the parties.  Today’s opinion seems to suggest that a party can make a fee claim after the date by which all submissions are supposed to be filed, thus effectively invalidating the deadline.  Of course, the opinion goes on to point out that the husband never claimed that he was prejudiced by the late filing, so theoretically at least, this ruling might have been different if he had made that assertion below.  Practice tip:  If your opponent tries to slip in a late fee claim, don’t just point out that she missed the deadline; claim that you’re prejudiced by the late filing.  The opinion even hints at the basis for such prejudice (insufficient time to investigate; no opportunity to object).