JUNE BRINGS MIXED RESULTS FOR
CAV CRIMINAL APPELLANTS
On June 5, the court decided Robertson v. City of Danville, a Fourth Amendment case involving police entry into a locked home after arresting the defendant outside. The police had to break down the door in order to get inside the house; when they did so, they found no one else inside, just as the defendant and the complaining witness had told them. They did, however, find a shotgun and spent shells, and charged Robertson with possession of a firearm by a felon, and with discharging a firearm.
The issue in this case is Robertsons motion to suppress the physical evidence, since the police didnt get a warrant (or anyones permission) to go inside. The trial court denied the motion to suppress, but the Court of Appeals reverses, holding that no exigent circumstances existed to justify a warrantless entry. Unlike another case out of the same court decided this year, Williams v.Commonwealth, 49 Va. App. 439, the officers had no information from any source that there was anyone else inside. That meant that the police effort to break into a locked house in order to “secure” it was incongruous at best.
On June 12, two more appellants got their days brightened. One is a traffic licensure case, Meierotto v. Commonwealth, which arose on the
The court decides that it does. It notes that the position urged by the Commonwealth produces a potentially anomalous result, since by interstate compact one cannot hold two drivers licenses at once. Having kept his official domicile in
The other June 12 case is Roulhac v. Commonwealth. This one is also a Fourth Amendment case that turns on just how suspicious a certain hand-to-hand contact was. Police officers saw Roulhac apparently transfer something by hand to another person. They didnt know what the object was, and they didnt know if a crime had been committed, but they were sure going to find out. They stopped both men, and asked Roulhac for consent to search him. Roulhac said no, thanks, and then put his hand into his pocket. That was that; citing a long-standing practice, one of the officers proceeded to pat Roulhac down for weapons. And thats when he found the pipe, with the cocaine residue.
On appeal, the case turns on whether its reasonable for an officer to pat down a suspect when no identifiable crime has been committed (you have to admit, handing something to another person isnt an indication of a crime, or else were all suspects sooner or later), and when the officer has no indication that the suspect is armed. The opinion analyzes the three types of police confrontations (consensual; Terry stops; and arrests) and decides that once the officer put his hands on Roulhac, this one immediately escalated from consensual to a Terry stop. At that point, under well-developed caselaw, the officer had to have “reasonable grounds to believe [Roulhac] was armed and dangerous.” Since there was no such evidence, the conviction is reversed.
The tide turns in favor of the Commonwealth on June 19, as appellants challenges fall short in four cases decided that day. The first, and one that will be of interest to practitioners in fields other than criminal law, is Hairston v. Commonwealth , which is really about the requirements for issuance of a subpoena duces tecum for health care records. Hairston was charged with taking indecent liberties and unlawful carnal knowledge. His attorney issued a subpoena for the victims counseling records; that subpoena complied with Rule 3A:12(b). The Commonwealth moved to quash it anyway, citing the subpoena requirements in the state law equivalent of HIPAA.
The trial court quashed the subpoena, holding that the subpoena didnt meet the enhanced requirements of the
Groves v. Commonwealth involves something called the “claim-of-right” defense in larceny prosecutions.
The Court of Appeals affirms, ruling that the trial court applied the correct standard in evaluating the case.
I have to confess that upon reading Burrell v Commonwealth, I wondered why someone would go to great lengths to defraud a county, in order to get welfare benefits that a nearby city would have to pay anyway. If youre confused, read on; the facts, at least, get clearer from here.
Burrell lived in
The Commonwealth prosecuted her for welfare fraud. Her principal defense, as far as I can tell, is that she would have been entitled to the welfare benefits anyway; the only thing she did wrong was to apply for them in the wrong jurisdiction. In affirming her conviction, the appellate court reasons that she “was not entitled to food stamps from Isle of Wight County; the fact that she may have been entitled to food stamps in a different locality is immaterial . . .” (Did you notice the parallel reasoning to the claim-of-right defense from the Groves decision? Well, it doesnt work here, either.)
In Pryor v. Commonwealth, the court takes Route B to reach what it might have reached more quickly by Route A. The case involves a conviction for cocaine distribution, and the defendant had the bad luck to be on the 21st Century version of Candid Camera. An informant agreed with police to make two drug buys from Pryor. After being wired for video and sound (they make surveillance cameras awfully small these days), she made contact with Pryor and caught him selling drugs on camera both times, once in a car and once five weeks later in her home.
But at trial, the informant waffled when she testified about the second transaction. The court dismissed that count, but permitted the jury to decide the case on the first purchase. In preparation for deliberations, the judge sent the jury the two videotapes over Pryors objection, noting that the second one, while no longer the subject of a criminal charge, was still probative of identity. He instructed the jury to consider the second video “only as it may be relevant to the [first] charge. It may not be considered for the [second] charge, which has been struck and is not before you.”
The Court of Appeals rules today that this is the correct approach, despite Pryors argument that it constitutes “other bad act” evidence. It finds that the second video refutes Pryors argument of mistaken identity; the person identified as Pryor is the only person who appears in both videos. The court determines that this evidence is admissible to show identity, not propensity of the accused to commit a given offense.
There is, in my view, an easier way to get to this conclusion (the Route A that I alluded to earlier), and I will confess to wondering as I read this opinion why the court didnt take the simpler approach. Specifically, Pryor didnt move the court to strike the second video from the evidence when the court dismissed the second count. Under that scenario, most appellate advocates will recognize a contemporaneous objection rule waiver from three miles off. The answer to my puzzlement comes, finally, in a footnote at the bottom of page 9: The Commonwealth didnt raise the killer waiver argument in its brief, and the courts ruling on the primary issue makes it unnecessary for the court to take up the waiver issue sua sponte.
Finally, today (June 26) the court releases Pharr v. Commonwealth, yet another Fourth Amendment case. This one deals with the effect of giving a DNA sample to the police.
Practitioners should keep in mind that this doctrine will apply to things other than DNA samples. Blood samples and theoretically even fingerprints will likely be analyzed in the same way by the courts.