ANALYSIS OF NOVEMBER 27, 2007 CAV OPINIONS
[Posted November 27, 2007] The Court of Appeals decides three cases today by published opinion. All three rulings involve criminal appeals.
Of the many classes of homicide in Virginia law, involuntary manslaughter is the lowest on the totem pole of culpability. Unlike the various classes of murder, it requires neither malice nor premeditation nor the commission of a separate felony; unlike voluntary manslaughter, it does not require proof that the defendant acted in the heat of passion. The question addressed by the Court of Appeals today in Coyle v. Commonwealth is “whether providing dangerous quantities of a lawful substance to another who voluntarily ingests it and dies” is sufficient to establish the offense. According to todays opinion, the question in the previous sentence is one of first impression in Virginia.
With tragic consequences, Coyle decided to play amateur pharmacist. He managed to buy a significant quantity of a perfectly legal substance, dextromethorphan (a cough suppressant commonly called DXM) over the Internet, and started packaging it in capsules, with the idea of using it to get one of several grades of euphoric highs. One unfortunate night, he gave five such capsules to a 17-year-old acquaintance (there is nothing in the record to indicate whether it was a sale or a dubious gift). The teen ingested four of the capsules, and later died from what a medical examiner determined was a DXM overdose. A jury convicted him of involuntary manslaughter, plus a number of pharmacy-related violations. Only the manslaughter charge made its way into todays ruling.
The appellate court first takes up the question of whether Coyle was criminally negligent in providing the pills to the victim. Coyle argued that the substance wasnt illegal, and theres nothing criminally negligent about providing a legal substance to someone else. The court observes that involuntary manslaughter can be founded upon proof of “an unlawful, but not felonious, act, or . . . the improper performance of some lawful act.” And not just any “improper” performance of a lawful act will suffice; the act must display a callous disregard for human life.
Here, the court notes that Coyle had on a previous occasion told a relative that he knew that taking too much DXM could be fatal. More important, he thereafter “continued to package DXM in large doses,” and gave some of those super-sized doses to the victim. The court finds that the jury reasonably could have concluded that Coyles acts were sufficiently reckless as to violate the statute.
Coyles second challenge seems destined to fail from the outset (and it does just that) he contends that there was no evidence to show that the victim died from a DXM overdose. Well, except for the testimony from the two doctors, (one forensic pathologist and one forensic toxicologist), maybe there wasnt. But those two were enough, given the appellate courts view of the evidence in the light most favorable to the Commonwealth. Coyle contended that even these doctors didnt state just how much DXM was a lethal dose, but the Court of Appeals isnt impressed, in light of the specific causation testimony from the doctors.
Coyles final point is that the victims own act of swallowing all those tablets was the real proximate cause of his own death; thus, he reasons, the act of giving him the capsules couldnt be the proximate cause. The court answers this contention by noting that there can be more than one proximate cause, and unless a subsequent cause is unforeseeable, then it cant be regarded as intervening. Coyle specifically gave the victim the capsules to enable him to ingest them and get a high from the contents, so this argument, too, avails him not.
We get a lesson in the contours of articulable suspicion in Asble v. Commonwealth , a Portsmouth case that started with a policeman performing a “community caretaker” role. Officer Davis was on patrol near I-264 one night when he saw a car stopped on the shoulder of the entrance ramp to the highway. He noticed two people in the car, and decided to check on them “to make sure they were all right.”
As he walked up to the car, he saw Asble, in the drivers seat, reach down toward the floorboard in what the officer thought was a furtive motion. He then approached the drivers door and asked Asble, “Are you okay? What are you doing?” Asble reported that his wife, who was in the back seat, was ill.
You get a hint of how this is going to come out when you read the next line in the fact section in todays opinion: “[Officer] Davis made no further inquiry as to her sickness and made no offer of help.” (Uh-oh.) The officer asked Davis and his wife to get out of the car; when he searched inside, he found a spoon with a quantity of heroin, and a syringe, which also contained illegal drugs.
Asble moved the trial court to suppress the drugs, claiming that the officer had no articulable suspicion to support his search of the car. The court eventually denied that motion, and that ruling is the foundation of todays opinion.
Everything the officer did up to a certain point was perfectly legitimate, the court concludes. But the officer reaches that point when he tells the occupants to step outside instead of finding out whether The Missus was, in fact, okay or not. At that point, the court notes, Asble was no longer free to leave, and the matter became a criminal investigation.
Why does the timing matter like this? Because the officers articulable suspicion must be tested as of the time when the encounter was no longer consensual. And at THAT point, the officer knew very little, if anything, about any drugs or other criminal activity. Literally the only thing he had to go on was the allegedly furtive motion by the driver, but even he had to agree that the drivers initial explanation for the motion (that his car had started to roll, and he was reaching for the parking brake) was plausible. The court thus reverses the trial courts ruling on the motion to suppress, and remands for a new trial, “if the Commonwealth be so advised.” (If any lawyer “advises” the Commonwealth to go forward with a drug case without being able to introduce any drugs into evidence, then he or she likely has a fertile imagination.)
The final case of the day reminds me of some of those stupid-criminal stories that get passed around legal circles from time to time. Theres the story (perhaps apocryphal) of the bank robber who writes a stickup note on the back of his own deposit slip. Our own Supreme Court got to decide a hapless crook case back in March in McDowell v.Commonwealth, the shoplifter had the misfortune to ply his illicit trade just three hours after the store had conducted inventory, thus conclusively establishing the value of the stuff he stole. Todays unfortunate tale, Patrick v. Commonwealth, involves a guy who broke into a rural grocery store one night and stole several scratch-off lottery tickets.
The problem with stealing lottery tickets is that they have serial numbers, and the vendors know what the numbers are. Upon discovering the crime that morning, the grocer called those numbers in to Richmond, where the state lottery office put a hold on those particular tickets.
A few hours later, sure as clockwork, somebody shows up at a different store to claim his winnings when three of the tickets hit. (Hey, at least the guy didnt have the hubris to show up at the same store to scoop the cash.) This is mistake #2; mistake #1 was thinking he could get away with such a scheme in the first place. The store clerk knew the guy because they had lived across the street from each other for 13 years (mistake #3), and was able to identify him as Patrick when the investigator came calling.
The legal issue in this case, while interesting, is nowhere near as amusing as the prospect of a crook who seemingly cant take two steps without tripping over his own shoelaces. Patrick didnt testify at trial. The trial court gave the jury two standard instructions for a non-testifying criminal defendant, telling it not to consider the defendant’s silence against him, and that Patrick had no duty to adduce any evidence. It also instructed the jury, however, about the permissive inference that may be drawn where a person is in unexplained possession of recently stolen property.
Patrick argued that this last instruction basically contradicted the first two, by telling the jury that the defendant had an obligation to explain himself. In theory, this might be a promising course to take. But other legal minds have tried this idea before, and have met with no success whatsoever. The appellate court, in affirming Patricks conviction, cites previous caselaw that observes that the satisfactory explanation doesnt have to come from the defendants own mouth; he could call alibi witnesses, or otherwise bring in someone, or something, to show that his possession was somehow innocent. Patrick didnt do that, so the jurys guilty verdict holds up.