HOW NOT TO PRESERVE ERROR

An unfortunate defendant learned today the consequences of appealing one, but not both, alternate grounds for a trial court’s ruling.

Otis Purnell Johnson, Jr. probably wasn’t overly confident when the Richmond police officer began to pat him down for weapons in an investigatory detention. The officer quickly found a small supply of heroin in Johnson’s jacket. Shortly thereafter, upon checking Johnson’s identification, he learned that a warrant existed for Johnson’s arrest on other charges.

Johnson’s attorney moved to suppress the heroin, contending that the scope of the pat-down was excessive. The prosecutor contended (1) that the frisk was within permissible limits, and (2) even if it were not, the officer would have discovered the heroin once he arrested Johnson on the outstanding warrant, in a search incident to a lawful arrest. (This latter argument is the “inevitable discovery” doctrine explained by the Supreme Court last year in Commonwealth v. Jones .) The trial court sided with the Commonwealth on both points, holding that the search was permissible, AND that the heroin would inevitably have been discovered.

The conjunction in the last sentence proved dispositive on appeal; Johnson appealed only the trial court’s first ruling. The Court of Appeals ruled today that the failure to appeal the second of these twin rulings was fatal on appeal. In Johnson v. Commonwealth, the appellate court found that in order to consider the merits of Johnson’s appeal, it would have to raise an issue he did not raise himself. Unsurprisingly, the court declined to engage in such judicial activism.

But the court found another step necessary to complete the analysis – it had to determine whether the inevitable discovery doctrine could, indeed, constitute a valid ground for the trial court’s ruling. The court was constrained, however, to consider this principle in the abstract, without regard to the particular facts of this case. (The court declined to scrutinize these facts, it explained, because that was the very part of the argument Johnson had waived.) Accordingly, in its second unsurprising ruling, it found that the doctrine could, in an appropriate case, serve as the basis for the admissibility of seized evidence.  It therefore affirmed the conviction.

This decision warrants some study for two reasons. The first is the principal holding, that an appellant must appeal both prongs of alternate rationales below, in order to preserve error. While this may seem self-evident, this is apparently an issue of first impresssion in Virginia. This is a powerful lesson for appellate lawyers who are attempting to craft a narrow, limited basis for an appeal.

The second is the indirect method employed by the court to analyze the potential application of the inevitable discovery doctrine to a theoretical prosecution. The court did not even permit itself to evaluate the question of whether the discovery was, indeed, factually inevitable in this case, since Johnson’s questions presented did not raise the issue.

Accordingly, where the trial court has made rulings based on alternate theories, attorneys preparing appeals must take care to “surround” the issues. It’s no secret that criminal appellants face a long, uphill battle; the statistics show that very few appellants even get a writ, much less a reversal. But a quasi-procedural default like this one can eliminate even the slim chance normally given to a criminal appeal.