CAV ISSUES MAJOR RULINGS
[Posted March 26, 2013] In the appellate business, there are slow news days. There are average days. There are important days. And then there’s today. No, I’m not talking about a certain appellate argument that occurred this morning on the north bank of the Potomac (see SCOTUSBlogfor full coverage of the Defense of Marriage Act appeals that are occupying the attention of the mainstream media). This morning, the Court of Appeals of Virginia issues several published opinions, some of which will be of major importance in trial and appellate courts.
ON FELONY MURDER, APPELLATE AMENDMENTS
I’ll first mention a trio of appeals that originally came down in August. I covered them hereunder the lead case name, Chatman v. Commonwealth. In that opinion, a divided panel of the Court of Appeals ruled that the appellate court didn’t have jurisdiction over a case where the appellant hadn’t specified where in the record the appellate issues had been preserved, or had done so imprecisely. The majority relied upon a recent case from the SCV, Davis v. Commonwealth, for the lack-of-jurisdiction premise.
My sentiments fell with the dissenter in that decision, Judge Elder, even as I recognize that the majority (Judges Humphreys and Petty) had a legitimate place to hang their collective hat, in the form of the Davis opinion. The CAV granted en banc rehearing sua sponte last August, and today, the judges affirm the convictions (that’s the unsexy denouement of the story) while sparring vigorously over the waiver issue, ultimately ruling that waiver doesn’t apply here.
While Judge Elder originally dissented, the opinion-writing duties for today’s majority fall to Judge McCullough. He concludes that a petition for appeal is a form of pleading, and the rules of court clearly contemplate that pleadings can be amended, so these appellants were entitled to fix the defects in their original petitions for appeal. (One appellant never did get it right, so the court dismisses his appeal. That one’s Brooks v. Commonwealth.)
The opinions in Chatman v. Commonwealth and Whitt v. Commonwealth are fascinating reading for any lawyer, but they’re mandatory reading for any appellate lawyer. You’ll see how the majority distinguishes Davis (since it didn’t involve a motion for leave to amend) while the dissent gets on the horse and rides hard. In the end, you’ll get the sense of the majority of the full court on how to interpret imprecise briefwriting.
I won’t leave this subject without mentioning my own view. Personally, I’m glad that these opinions came out the way they did, because it makes the CAV a kinder, gentler place for appellate practitioners. I don’t like appellate death penalties for procedural defaults, because as Judge McCullough points out today, the crushing impact of a procedural dismissal falls on the client, when it’s the lawyer who did something wrong. In a criminal case, the client has to go the habeas-corpus route (or at least seek a statutory delayed appeal); in civil appeals, the losing party is simply out of court forever.
That being said, I believe that the ultimate source of the problem is deeper than these two cases. The CAV can’t say this, but I can: I think that Davis v. Commonwealth is flatly wrong – perhaps not in outcome, but certainly in the Supreme Court’s holding that a procedural defect, based on the failure to comply with a rule of court, is jurisdictional. In my view of our system of government, no court, trial or appellate, has the right to fix the limits of its own jurisdiction. That would make the court something of an autonomous body, answerable to no one.
The Supreme Court’s jurisdiction is fixed by the Constitution of Virginia and by statute (as the constitution authorizes the legislature to do). The courts may refuse petitions for procedural defaults, and even dismiss those that contain blatant rules violations. But the court clearly has jurisdiction over appeals. When a litigant blows a rule, the court can and often should toss him out of court; but it can’t say that it doesn’t have jurisdiction, where the Constitution and Code of Virginia say that it does.
On to the felony-murder cases. The court hands down two today, and in one of them, it reverses a conviction. Yes, for felony murder. That one is Woodard v. Commonwealth, in which the defendant was a drug dealer who sold ecstasy to a customer one evening around 7:00 pm. The customer left the scene of the purchase and went out to have dinner with some pals, the ecstasy still in her pocket. Somewhere in the vicinity of 10:00, back at her apartment after dinner, the purchaser took some of the pills.
Sadly, she took a fatal dose, lapsing into unconsciousness sometime during the evening and dying two days later. The dealer was prosecuted for distribution, of course, but the prosecution threw in a count of felony murder, since the sale of the drugs had led to the purchaser’s death. He was convicted of both counts, but only the charge involving the homicide is involved in today’s appeal.
I’ve already telegraphed to you that the Court of Appeals tosses this conviction; so how do we get there? The dealer’s act unquestionably led to a death, and it was unquestionably felonious. But the felony-murder statute requires more than that; it’s defined as “the killing of one accidentally, contrary to the intention of the parties, while in the prosecution of some felonious act.” The court today finds that the killing may have related to a felonious act, but it didn’t take place “while in the prosecution of” that act. The purchaser ingested the drugs hours after she left the dealer, so that criminal act was already completed when the “killing” took place. In such circumstances, even a felonious act won’t sustain a charge of felony murder.
The other such case decided today is Montano v. Commonwealth. It, too, involves a contention that the killing didn’t occur during the commission of a felony; but the facts here are decidedly less favorable than in Woodard. In this case, a driver lost control of his car; it hit a wall and then struck another car, killing one of the people inside that second car and seriously injuring two others. His blood test, taken from a sample at a hospital after the crash, showed .20%, which as my readers know is well above the legal limit. Police found twenty beer cans inside his car, including one that “still contained beer and had condensation on it, suggesting appellant had been drinking it while driving,” although he denied that accusation.
Montano is one of those people who really needed to be kept off the road, as evinced by his two prior DUI convictions. In fact, authorities tried to keep him off the road; one of his other charges was driving on a suspended license. Since DUI-3d is a felony, he was charged with felony murder. He was convicted of all these offenses and more.
The defense here raises three issues. The first is that the trial court wrongly imputed malice to him. The CAV quickly disposes of that assertion by citing its prior caselaw, holding that malice is imputed when the defendant engages in inherently dangerous felonious activity. Driving with this level of intoxication fits that bill.
Second, the appellant argues that the killing wasn’t within the res gestae of the felony, because the killing wasn’t “in furtherance of” the drunk driving. But the Supreme Court has already stated that where the felony and the killing are part of the same transaction, “and were closely related in point of time, place and causal connection,” that’s enough for felony murder. The appellant’s last line of attack is his assertion that the trial court erroneously found that he caused the death in an effort to further the felony. That argument falls for the same reasoning. The conviction is thus affirmed.