ANALYSIS OF OCTOBER 11-18, 2011 CAV OPINIONS[Posted October 18, 2011] Let’s get caught up with the Court of Appeals, which has issued four published opinions in the last seven days. If you’re on the defense side of the criminal-justice system, you might want to avert your eyes; criminal appellants’ long losing streak continues, as all of those appeals in this batch are affirmed.
This morning, the court hands down Morris v. Commonwealth, involving a conviction of street-gang participation. This case has an interesting twist on what it means to participate in a gang.
Ever since the first recorded mention of street gangs, members of rival factions have famously not gotten along well. Tiberius Gracchus lost his life in a gang fight in 133 BCE; the factions there included the patricians (led by several senators, believe it or not) and the plebeians, for whom Gracchus served as a tribune. This was the first instance of political murder since the founding of the Roman Republic, and it basically opened the floodgates to a great many more such crimes over the ensuing centuries. In more modern times, we know the pain that Tony and Maria endured when they tried to put gang loyalties aside; Sharks and Jets just don’t mix, and this venture for the poor lovers didn’t end well.
Nowadays, the biggest gang rivalry may well be that between the Crips and the Bloods. Morris, a member of the Bloods, went to a party where several Crips were in attendance. Before you go jumping to conclusions, bear in mind that the party didn’t erupt into a knife fight; instead, Morris actually agreed to help several members of the Crips as they planned “gang missions and stuff.” On this evening, those missions included beating up innocent persons, with the goal of advancing the gang status of one of the Crips.
Before I read this opinion, I assumed that things like that never happened; it would be unthinkable for a Shark to pal around with a Jet on a criminal enterprise for the benefit of the Jet’s social status. But Morris helped several Crips that February night, and of course he got caught. While he claimed that he only went along because the Crips threatened to attack him if he resisted, the real issue in this appeal is whether a Blood can “participate” in criminal activities on behalf of the Crips.
Today, the Court of Appeals confirms that one may participate in a street gang even though he belongs to a rival gang. The court affirms Morris’s conviction, noting that it doesn’t matter that Morris gained nothing from the “mission.” He participated in actions that were directed by the Crips, and that’s enough for this conviction to stand.
Last week, the court announced two criminal-law decisions. In a short opinion, the court rules that a conviction of attempted petit larceny can serve as a predicate offense for an enhanced-level felony prosecution for a recidivist thief. In Pitts v. Commonwealth, the defendant was charged with the felony-level offense because of a history that included a grand-larceny conviction, another for petit larceny, and a third for attempted petit larceny.
Pitts contended that he had only been convicted of two prior larcenies, so he couldn’t be convicted of a felony this time. But the court looks to the wording of the statute, and one of the component categories of prior offenses is “any offense . . . punishable as larceny.” The general statute on attempts states that attempts are to be punished just as though the offense had been completed. You have to admit, the attempted-larceny conviction now fits neatly into that category, so the felony conviction is affirmed.
In Shifflett v. Commonwealth, a driver with a snoot full got behind the wheel of an unregistered truck, and he and two pals drove down a Nelson County road just before 10 pm in February 2010. It was snowy outside, hardly the kind of weather in which you’d expect farm-based activities to occur. Despite this, the truck had “Farm Use” tags instead of license plates. These tags were bought from a store, not issued by the DMV.
I’ve seen lots of these plates (sometimes just scrawled onto cardboard with a Magic Marker), and this opinion gives me my first peek at the rules for such vehicles. You can get a farm-use plate from the DMV, in which case you can use the truck on the roads for a number of non-farm purposes, such as going to church, school, or even the grocery store. If you don’t register, your restrictions are much tighter; you have to use the truck for enumerated agricultural or horticultural purposes.
The state trooper who saw Shifflett didn’t notice anything suspicious about the operation of the truck; there’s no indication of weaving or erratic driving. If there were, this would be a very simple (and unpublished) opinion. Instead, the trooper decided to investigate because he wondered what on earth kind of agricultural activity could be going on at 10 in the evening on a snowy night. Figuring that the only such agricultural activity would likely be sowing wild oats, he stopped the truck. He discovered that the driver smelled of alcohol, had slurred speech and bloodshot eyes, and . . . well, you know the rest.
The novel issue in this case is whether a trooper can stop a truck for no articulable purpose other than to see if it’s really being used for farm purposes. In fact, the circumstances are a bit more involved than that; the trooper testified that “in the wintertime, you don’t see many farm use vehicles on the road.”
That may seem like an innocuous statement, but it proves to be the key to this affirmance. The court takes a holistic view of the circumstances, ruling that the situation at least gave the trooper enough of a reason to investigate further, to see whether the truck was being used for a prohibited purpose. The reasonable-suspicion standard, a product of Terry v. Ohio, is far less demanding that the proof necessary to convict, so Shifflett’s suggestion of a perfectly legitimate explanation for his actions won’t get him out of jail free.
This one, I sense, is a close call, and I got the impression in reading the opinion that the unanimous panel did what it could to solidify its conclusion by deferring to the trial judge’s discretion. After reciting the bare circumstances that led to the stop, the court explains its rationale in this way:
We acknowledge Shifflett’s complaint that the trial court’s analysis, which we adopt as our own, relies heavily on generalities. But, truth be told, it is supposed to be this way. The reasonable suspicion standard itself is a “somewhat abstract” and “elusive concept” that cannot be reduced to a “neat set of legal rules.” We thus find it unnecessary to develop a grid of all possible lawful uses of an unregistered farm use vehicle in order to determine whether the facts convincingly negate each hypothesized use. (Citations omitted)
This passage struck me as being almost an apology for affirming on the barest factual foundation. It conveys little conviction, at least as I read it, to convince the reader that this result is the right one. And yet I think the result is correct; a police officer should be able to make a stop under this particular combination of circumstances, particularly where there’s no obvious farm purpose for using an unregistered truck. I would have found the opinion more compelling if it had omitted this passage, but of course, I don’t get a vote in these matters. In any event, Shifflett’s conviction stands.
Last week, a unanimous panel of the court handed down Sifford v. Sifford. Normally when you see the same surname on both sides of the “v.” in a Court of Appeals case, it’s a domestic-relations appeal. But this one is a fight over death benefits for a worker who was killed on the job.
Some time before the accident, Mr. and Mrs. Sifford experienced marital difficulties. The agreed to a sort of house-sharing arrangement, where they would sleep in separate rooms, with the husband continuing to contribute the greatest part of financial support in the form of bill payments. They executed an agreement to carry that out; the wife disavowed any spousal support. She had part-time work while husband was employed full-time as a truck driver.
When the husband died, the question became whether she was still husband’s dependent. The law imposes the strongest form of proof known to the law – a conclusive presumption – where a spouse has not deserted or abandoned her husband and she is “actually dependent upon him.” There was no suggestion of desertion or abandonment, so the analysis in the Comp Commission turned to the issue of dependency.
A divided Commission ruled that, pursuant to the written agreement, the wife was no longer dependent on the husband. It looked to the purpose of the document, which was to benefit the couple’s child, and noted that the husband never undertook to pay wife anything; he merely continued to pay the bills he had previously paid.
The Court of Appeals reversed in what I felt was a strong rebuke of the Commission majority’s holding. It finds that the husband’s payment of bills had the effect of supporting the wife, even though no checks were made out to her. In reaching this conclusion, two rulings are important as precedent in future cases.
First, the court rules that the question of whether wife was actually dependent on husband is a mixed question of law and fact. The appellate court thus affords deference to the Commission’s factual determinations, but reviews legal conclusions de novo. Specifically, where the facts were not in dispute, the issue of whether those facts add up to actual dependency is a question of law, not one of fact.
Second, here’s specific guidance on how to interpret future disputes along these lines: “Here, in the present case, the commission erred in focusing on the purpose of the settlement agreement, rather than the effect of that agreement.” The court rules that while the primary purpose of the agreement was to benefit the child, the practical effect was to benefit the wife, who didn’t have to bear the expense of setting up a residence of her own. The Commission is directed to look to the effects of these agreements, not merely to their stated purpose, to settle the question of dependency.