ANALYSIS OF MAY 12, 2009 CAV OPINIONS

 

[Posted May 12, 2009]  The Attorney General scores a clean knockout today, as the Court of Appeals hands down four published opinions in criminal appeals, all of them affirmances.

 

Criminal law

In a fairly unsurprising development, an appellant’s convictions for possessing drugs within 1000 feet of a school with intent to distribute are affirmed.  In Fullwood v. Commonwealth, the appellant complained that he suffered two convictions despite only being in possession once.  The problem is that he possessed two different drugs at the time – marijuana and cocaine – with the requisite intent.

 

Fullwood argued that Double Jeopardy considerations forbade the trial court from convicting him twice for the same event.  The Supreme Court has already rejected such an argument in parallel indictments for conspiracy, and today the Court of Appeals does the same things for the actual possession.  The court notes today that its recent opinion in Lane v. Commonwealth forecast as much; it concludes that “possession of each substance violates separate sections of the Code.”

 

You can’t blame the appellant in Scott v. Commonwealth for feeling like he’s getting a multijurisdictional beat down.  Not that he hasn’t earned one; between here and Ohio, he has an impressive collection of convictions for things like theft, drug possession, forgery, and possession of burglary tools.  He was convicted in Virginia for several such crimes (today’s opinion is a bit frustrating in that it doesn’t recite when, so we don’t know just how old some of these offenses are), and got 55 years in prison.  The judge helpfully suspended 50 of those, so after five or so years in custody he walked – all the way to Ohio.  Unfortunately, he wasn’t able to stay out of hot water (or jail, for that matter) for long; he got more of the aforementioned convictions in the Buckeye State.

 

The Ohio court noted that he was on probation in Virginia, so it tried him for violating his probation.  It gave him a (remarkably lenient) sentence of six months concurrent, so it didn’t add any jail time to his debt to Ohio.

 

We here in Virginia are on top of things; his Virginia probation officer found out about the Ohio convictions, so Scott was hauled back down here for yet another probation violation hearing.  When he got here, he complained that he had already been sentenced for that offense in Ohio, and the Virginia courts weren’t free to pile on afterwards.

 

This is, you have to admit, an interesting puzzle – can the courts of Ohio punish a guy for violating his Virginia probation?  If they can, then Virginiae — can e got here, he complained that he had already been sentenced for that o has to back off, or we really will have a Double Jeopardy problem.  But a Virginia judge decided that Ohio didn’t have jurisdiction to make that finding, so he went ahead and found him guilty here in Virginia, too.

 

Now Scott is really feeling oppressed.  He’s been convicted in two different courts, in two different states, for exactly the same thing (this isn’t a situation like Fullwood’s above).  That isn’t supposed to happen, his lawyer tells him.  That lawyer then went out and got a writ from the Court of Appeals.

 

But hope dies fitfully today, as the CAV affirms.  The analysis is very interesting; first the court must determine whether the Ohio court actually decided the jurisdictional issue on the merits.  If it did, the Virginia has to afford full faith and credit to that ruling, even if the Virginia judge thinks it’s wrong.  That’s the way the Full Faith and Credit Clause operates.  But here, the CAV finds that the Ohio trial court didn’t address the jurisdictional issue.  And when Scott appealed there, he didn’t assign error to the trial court’s assertion of jurisdiction.  That’s what we in the appellate business call a defaulted issue, and that ruling was emphatically not on the merits.

 

That gets us to the point where the Virginia courts decide whether the Ohio court really had jurisdiction or not.  The CAV today agrees with the trial court that it did not.  Analyzing an interstate compact that governs such matters, the court concludes that while Ohio was obviously empowered to prosecute Scott for the crimes he committed there, only the Virginia courts can try him for violating the terms of probation imposed here.  The courts of Ohio were empowered to conduct a probable cause hearing on the probation violation, but after that, Scott had to be “retaken” to Virginia for further proceedings.

 

This short (8 1/2 pages) opinion is a very interesting explication of these conflict of laws principles, and is well worth a read by any criminal law practitioner.

The best evidence rule gets a judicial workout today in Brown v. Commonwealth, a larceny case arising in Albemarle County.  There, an eagle-eyed florist in a grocery store (remember when florists only worked in florist shops?) noticed some purported shoppers acting suspiciously.  She notified security and followed three men as they went to the unattended seafood counter.  She saw the three men take twelve bags of crab legs and collectively head for the men’s room.  They emerged a few minutes later, but the crab legs were nowhere to be found.  The men headed straight out the door and into the parking lot, where they jumped into a car (a female companion was already in the vehicle).  The car then sped away.

As you will have surmised, the crab legs were not negligently left behind in the restroom.  The diligent florist had the presence of mind to note toe license plate of the departing vehicle.

 

Meanwhile the security guard went to a room where the store had monitors for video cameras.  Sure enough, one of those was trained on the part of the seafood counter where the crab legs and shrimp were kept, and that recording depicted the three men, one of whom was Brown, grabbing the bags.  A similar camera showed them walking down a hall toward the restroom.

 

The issue at trial is whether the security guy should be permitted to testify as to what he saw on the video.  Brown objected that the testimony constituted hearsay, but he never preserved that issue for appellate review.  He did, however, press his claim that the best evidence of what was on the tape should be the tape itself; not some security guy telling what he thought he saw.  The trial court felt that the best evidence rule only applied to writings, not to video images, so it permitted the security guy to testify.

 

On appeal, the Court of Appeals notes that the rule as originally formulated does only apply to writings, so it looks like the trial judge got it right.  It then points out that 42 states plus the Federal Rules of Evidence specifically include photographs within the definition of the rule.  Now it’s looking good for Brown.  But Virginia has never reformulated its rule to include photos, so we’re back to the original ruling, and that’s where the pointer stays at the end of the decision.  The court declines to judicially modify Virginia ’s best evidence rule (which it notes is properly called the original document rule), leaving it to the legislature, or perhaps the Supreme Court, to do so.