High court refines ‘right result, wrong reason’ test
 
Alan Cooper, Virginia Lawyers Weekly – 11/15/2010
 
You can pass go but not collect the $200.

You can win – or lose – your case in the Supreme Court of Virginia, but not necessarily for the same reason the trial court used when granting judgment.

The Supreme Court of Virginia has released a pair of unanimous decisions that clarify when an appellate court can affirm a lower court for the right result, but the wrong reason.

The rulings in Perry v. Commonwealth (VLW 010-6-121), and a companion case, Banks v. Commonwealth (VLW 010-6-108), on Nov. 4, came barely a year after the court had issued what appeared to be a definitive holding on the concept in Whitehead v. Commonwealth (VLW 009-6-092).

But Justice Donald W. Lemons, the author of both Whitehead and Perry, concluded the high court had gone a bit too far in the earlier case when it required the winning party to argue a point during the trial before a reviewing court could substitute a different reason to affirm on an alternative ground.

It’s the state of the record, not necessarily the argument, that counts.

The appellate court has to focus on “the facts in the record and whether additional factual presentation is necessary to resolve the newly-advanced reason” to affirm, Lemons wrote.

Bob Beasley, the Powhatan County commonwealth’s attorney and president of the Virginia Association of Commonwealth’s Attorneys, welcomed the clarification.

“Whitehead was a departure from our previous law, and the great thing about our system is that the court recognized that and corrected it,” he said.

“Perry makes a lot more sense in the real world” because prosecutors are responding to defense arguments rather than trying to focus on developing every fact that might be relevant on appeal, he said. “The onus is still on the commonwealth to make a record.”

Appellate attorneys L. Steven Emmert of Virginia Beach and Monica Taylor Monday of Roanoke said the high court emphasized that its analysis was consistent with U.S. Supreme Court and 4th U.S. Circuit Court of Appeals precedents.

Monday said the decisions reflect “a lot of clarity and a desire to make sure the bar understands when and how the rule will apply.”

The decisions display an understanding that the parties go to a lot of time and expense to develop a record in a case, so that deciding a case on the record if possible represents judicial economy, Monday said.

She cited another recent case, Walton v. Mid-Atlantic Spine Specialists, in which the court seemed to want to establish a clear rule. That case dealt with the inadvertent waiver of the attorney-client privilege.

One case affirmed, the other reversed
The two cases decided earlier this month provided vehicles to illustrate the application of the “right result, wrong reason” doctrine.

After approaching a stopped vehicle on the side of Interstate 66 in Arlington County, a trooper patted down passenger James Perry and ultimately arrested him for PCP possession after charging the driver with the same offense. In the trial court, Perry argued the trooper did not have a reasonable basis to believe Perry was armed and dangerous, and even if the pat-down search was lawful, the trooper exceeded the scope of the frisk.

The trial judge rejected the argument and convicted Perry of possession of PCP. The Court of Appeals said the trial judge had erred in finding the trooper had a reasonable suspicion that Perry was armed and dangerous.

But the intermediate court held the trooper had probable cause to believe Perry possessed illegal drugs by having joint or constructive possession of the drugs that the driver dropped, or actual possession of drugs that the trooper had not yet seen.

Applying the refined test, Lemons said the underlying facts required to prove the trooper “had reasonable suspicion to stop and frisk Perry are the same as those required to consider whether he had had probable cause to arrest Perry for possession.…

“As a result, the subsequent search of Perry was a lawful search incident to arrest under the Fourth Amendment,” the court said in Perry.

Banks involved the seizure of Guy Anthony Banks Jr.’s jacket from a bedroom after he had been arrested on warrants related to a robbery and shooting in Lynchburg.

Police encountered Banks, who was wearing a long-sleeved T-shirt and mesh shorts but had no shoes or socks, in the doorway of the room.

The trial judge ruled that Banks’ state of undress created an exigency justifying the seizure of the jacket.

The Court of Appeals, however, upheld the seizure because it concluded Banks had consented to the seizure of the jacket, an alternative ground that had not been raised in the trial court.

The Supreme Court reversed. “The record supports an alternative ground [for affirmance] when it reflects that all evidence necessary to that ground was before the circuit court,” Justice LeRoy F. Millette Jr. wrote for the court.

“And if that evidence was conflicting, then the record must show how the circuit court resolved the dispute – for example, it must demonstrate how contradicting testimony was weighed or credited.”

In this case, Banks testified that he never asked for a jacket, and the trial court did not indicate how it weighed or credited the contradictory testimony of Banks and the officer, Millette said. The Supreme Court remanded the case to the Court of Appeals to decide whether Banks’ state of undress presented an exigency justifying seizure of the jacket.