ANALYSIS OF RECENT UNPUBLISHED SCV ORDERS[Posted October 13, 2010] With no published opinions out of the Court of Appeals yesterday, I have enough leisure to discuss five recent unpublished orders from the Supreme Court. I’ll post PDFs of these orders elsewhere on the website, so you can see the text of each.
If you know how to read between the lines of an appellate order, the October 1 ruling in Davis v. Davis is absolutely scorching. In a suit involving an alleged family trust, the trial court entered an injunction in 2007. Much more recently, the defendant (who had denied even the existence of the trust) moved to vacate the injunction.
The trial court convened a hearing on the defendant’s request, and at that hearing, the defendant got a nasty surprise: Instead of vacating the injunction, the trial court awarded summary judgment to the plaintiff on the merits of the case. This relief was ordered despite (1) the existence of disputes about obviously material facts, and (2) the fact that the plaintiff didn’t file a motion for summary judgment. Figuratively, the summary-judgment order appeared out of thin air, as though conjured by a magician.
In an order that is surprisingly strongly worded, the Supreme Court reverses, noting that it is “manifest error” for a court to adjudicate the merits of a case without letting a litigant know that it’s pondering doing so. The court describes this as being a matter of elementary due process, because the defendant “had no notice that the court would consider, let alone decide, the merits of the action.” (The Federal Rules of Civil Procedure contain one analogous provision in Rule 12(d), where a party moving to dismiss relies on matters outside the complaint. In such instances, “[a]ll parties must be given a reasonable opportunity to present al the material that is pertinent to the motion.”)
Courts can’t award summary judgment sua sponte, but that’s essentially what this trial court did. The case gets sent back for further proceedings. The order doesn’t mention whether the injunction is still in place or not; that’s an interesting procedural point that we just don’t have enough information to evaluate at this point.
Three criminal-law orders came down on October 8, and the appellants lost in each of them, ensuring full employment for our Commonwealth’s correctional officers.
Bennett v. Commonwealth answers an intriguing question about companion-firearm offenses. Those are the statutes that provide that if you use a gun in the commission of a felony, you get a separate conviction and a mandatory, “un-suspendable” three-year prison sentence. A second or subsequent violation gets a mandatory five-year term. Bennett was convicted of a whole host of things, including attempted robbery, malicious wounding, and companion-firearm charges relating to both of those felonies.
The jury convicted him on all four counts (plus a couple more that aren’t relevant here), and the trial court proposed to hit him with a total of eight years for the firearms counts. Bennett complained that he couldn’t be convicted of a “second or subsequent” offense if all the acts happened in the same transaction.
On the surface, it looks like he might have a point there, but in the end, it’s unavailing. Virginia law doesn’t require that the convictions be separated in time; they can, as here, come as part of the same transaction. It may not be second in time, but it’s at least second in line, so the two convictions tack on an extra eight years to Bennett’s new residency arrangements.
There’s a similar issue that looks a bit odd at first blush in Riddick v. Commonwealth, involving simultaneous convictions of using a firearm while committing a felony, and wounding during the commission of a felony. Again reading between the lines, it appears that Riddick killed a victim by shooting him. He argued that he couldn’t be convicted of both of those offenses (the underlying murder conviction isn’t at issue here) because doing so would involve double jeopardy.
The Supreme Court disagrees. Applying the Blockburger analysis, it finds at least one element of each offense that the other doesn’t contain. The use-of-a-forearm statute requires the use of a gun, while the wounding statute doesn’t; the wounding statute requires that the defendant inflict an injury, but the firearm statute doesn’t (such as robbery by brandishing a gun that is never fired). Remember, in this analysis, you look at the conduct forbidden by the statute, not the defendant’s actual conduct, to determine whether the statutes duplicate each other.
Here’s a quick quiz: Do you have a right to resist an unlawful detention by a police officer? The answer to that question (no) plays an important role in Pettaway v. Commonwealth, involving a conviction for possession of cocaine. The turning point in the trial court was the court’s denial of a suppression motion, after which Pettaway entered a conditional guilty plea so he could appeal.
The Supreme Court affirms the conviction, citing a 2002 case in support of the above quiz answer. It also finds that when Pettaway struggled to resist the officer’s attempt to conduct a patdown for weapons, he engaged in the separate offense of obstruction of justice. That means that the ensuing search of Pettaway’s pockets, where the cocaine was found, was permissible as a search incident to a lawful arrest.
Sexually violent predators
The appellant in Graves v. Commonwealth wins a victory, but not enough of a victory to get a reversal. He was committed after a trial at which the Commonwealth adduced a host of evidence against him, one piece of which was tainted: A statement from a now-deceased boy, then nine years old, that Graves had asked him to undress.
The Supreme Court first holds that Graves’s Crawford challenge to the testimony won’t help him, because the Sixth Amendment (upon which Crawford is based) only applies to criminal prosecutions. SVPA proceedings are civil, so that argument fails Graves.
He gets more traction with his parallel hearsay challenge. The court comes right out and agrees with him that it was error to admit the boy’s statement over a hearsay objection. But in analyzing the whole case, the court finds that at most, this is but one tainted raindrop in a full monsoon; the court decides that the evidence as a whole was ample to justify the judgment, so this error is harmless.