ANALYSIS OF SEPTEMBER 2, 2008 CAV OPINIONS

 

[Posted September 2, 2008]  Two criminal decisions arrive today from the Court of Appeals; one of those is an unwelcome return trip for the defendant.

 

Criminal law

Waller v. Commonwealth involves a conviction of possession of a firearm after having been convicted of a violent felony.

 

One of the many problems with felony convictions is that they never go away.  You lose the right to vote, permanently (although that probably doesn’t trouble a number of felons, who don’t esteem the franchise as it should be).  You’re irrevocably disqualified from certain military and civil service positions that require security clearances.  And you don’t get to possess firearms, as the US Supreme Court confirmed a few months ago that law-abiding citizens have a Second Amendment right to do, whether they’re in a militia or not.

 

The 69-year-old Waller was convicted nearly half his life ago of six armed robbery charges.  Today’s opinion is silent on whether he had behaved himself in the intervening one-third century; but from the standpoint of Virginia law, it doesn’t matter; he still can’t possess a gun.

 

Of course, since we’re having this cyber-discussion, you already know that he succumbed to the temptation anyway.  A deputy sheriff went to Waller’s home “in response to an alleged threat.”  (I can’t offer you any additional details on what the complaint was, because the opinion contains none.)  When he arrived, he found Waller shoving a rifle under a vehicle in the front yard.  The deputy recovered a total of four weapons from Waller’s person and from under the van.

 

Waller had an excuse, you’ll be happy to know.  He told the deputy that he had just had an argument with his nephew, and the nephew had promised to come back with a gun and open fire.  It was necessary to arm himself, Waller assured the deputy, to protect his own life.

 

Regardless of what this tale reveals about the family dynamic, you have to admit there are some holes in it.  For one thing, where did Waller get the four weapons?  Easy, Waller explained.  They belong to a guy.  [No name, of course.]  He was storing them on my property, under an impromptu shelter.  And he put them there for me.  The guy is letting me use them.  Oh, I use the shotgun to hunt sometimes . . .

 

(I also wondered, how did he plan on shooting at the nephew when three of the weapons were shoved under the van?  But I digress.)

 

Against this backdrop, none of you will be surprised that the trial judge declined to believe Waller.  He accepted into evidence copies of six 1975 sentencing orders from the robbery convictions, and convicted Waller.  Pursuant to statute, the sentence was enhanced by his former-violent-felon status.  Waller got a writ from the Court of Appeals.

 

Today, the appellate court affirms.  The opinion focuses on two primary issues.  One of those is the sufficiency of the evidence to overcome Waller’s “necessity defense,” in which he argued that he had a real need to possess the weaponry to defend his life.  The appellate court speedily finds that the trial court had a perfectly legitimate basis for rejecting the defense; Waller’s story was “wholly uncorroborated,” and the appellate court always disregards the appellee’s contrary evidence in a sufficiency challenge like this.

 

The other issue centers on the evidence behind the enhanced punishment.  Waller complained that the copies of the sentencing orders were merely certified copies, and did not include the judge’s signature.  He contended that those copies weren’t sufficient to establish his prior convictions beyond a reasonable doubt.

 

Down here in Tidewater, if you go to the Clerk’s Office of a circuit court and ask for a certified copy of an order that has been entered, there are two ways the clerks handle those.  One, typified in Virginia Beach, is that you bring your own unexecuted order and have the Clerk certify that, by stamping it, “A Copy, Teste,” and signing that herself.  There’s no judge’s signature.  The other treatment, which you get in Norfolk, is that the Clerk simply goes into the records, burns a copy of the order signed by the judge, and then stamps and signs that.

 

These prior orders looked like the ones here at the Beach, in that there was no judicial signature to be found.  This case thus challenges the practice of certifying unexecuted copies of orders.  Sadly for Waller, the Court of Appeals has repeatedly held that using the Virginia Beach approach is enough to authenticate the copy.  And once the copies are in evidence, they are prima facie evidence of the convictions, and it’s up to Waller to refute them.  Waller understandably did not refute the convictions at trial; he simply said that while he was indeed a convicted felon, he didn’t recall whether it had been armed robbery or not.  After all those years, one can hardly fault a man for a lack of memory on an unpleasant detail like this.  But since there’s no evidence to the contrary, the conviction and the enhanced punishment stand, no doubt making Waller one of the oldest newly-admitted inmates in the prison system.

 

Today’s other criminal ruling is a remand from the Supreme Court, and is decided by published order.  In 2007, the Court of Appeals had handed Eddie Cross a victory, based on the Supreme Court of Virginia’s ruling in the unreasonable search case of Moore v. Commonwealth.  That’s the case in which the Supreme Court held that police couldn’t search a motorist after giving him a traffic summons.  Unfortunately for Cross (and for Moore), the US Supreme Court got the last word, reversing in Virginia v. Moore by holding that a police officer could, under the US Constitution, search such a motorist.  The Virginia court then remanded Cross’s judgment to the Court of Appeals for reconsideration in light of Virginia v. Moore.  And in Cross v. Commonwealth , it takes little time, and very little paper and ink, for the court to find that, consistent with the Big Supremes’ conclusive declaration on the issue, Cross’s appeal is for naught.  The short order affirms his conviction.  Ironically, Cross can now appeal back to the Supreme Court of Virginia, and maybe even on to Washington.  But the developments in the Moore case foreshadow a dim fate for any such appeal.