SUPREME COURT HANDS DOWN FOUR ORDERS[Posted December 14, 2009] I was in Richmond at the end of last week, and ironically that meant that I missed the news that the Supreme Court issued four unpublished orders in cases argued in the November session. (I suppose I need to do a better job of scouring the Clerk’s Office for orders the next time I’m there.)
Since all of these orders are unpublished, they won’t appear in Virginia Reports or on the court’s web site. If you’d like a copy of any of them, drop me a note and I’ll forward it to you.
Ah, the things that can get you in trouble even when you’re driving flawlessly. A burned-out tail light. Too-dark windshield tinting. Even getting rear-ended; if that happens while you’re under the influence, the nice officer will still give you the right to remain silent and a free ride in a police car.
The appellant in Alderman v. Commonwealth must have felt particularly unlucky as he probably came around a bend in the road and stumbled upon a traffic check point. Deputy sheriffs were checking each driver’s license and registration on the way through. (Yes, they can do that.) Alderman had to know that this was bad news; his license had been suspended based on a previous DUI conviction.
Alderman didn’t attempt to avoid the check point; he blithely pulled up and stopped at the deputy’s signal. When asked for his license, Alderman made a show of reaching around for it . . . and then he hit the gas, causing one of the deputies to back away suddenly to avoid getting clipped by the side-view mirror. As if that weren’t enough, Alderman gave the deputy a single-fingered salute as he sped off.
(Aw, gee; why’d you have to go and do that? He’s just doing his job . . .)
Alderman, recalling all those Smokey and the Bandit movies, probably figured he could get away cleanly and avoid the driving-on-a-suspended-license ticket. Hey, Jackie Gleason never caught Burt Reynolds, did he? Except these deputies were smart; they carried cutting-edge technology called radios, and another officer intercepted and rounded up our rocket-scientist hero inside of two minutes. After the inevitable legal proceedings, he had a year to serve for disregarding an officer’s signal to stop.
On appeal, Alderman loses a couple of issues on procedural-default grounds, leaving him with the criminal appellant’s last tendril of hope, a sufficiency challenge. The court finds that a rational trier of fact could have concluded on these facts that Alderman’s actions endangered the deputy, so the conviction is affirmed.
I’ll warn you that there’s a hey-wait-a-minute moment in Archer v. Commonwealth, a drug possession appeal involving a question of articulable suspicion. Here’s what attracted the police officer’s attention to Archer’s car:
The officer was making a right turn one night when his headlights shone into a passing car. As that happened, the driver “attempt[ed] to avoid eye contact by looking down and away from the officer’s car.” The officer found this to be “a furtive movement,” so he followed the car. While doing so, he learned from his onboard computer that the person to whom the car was registered had had his license suspended. So far, we can agree that everything the officer has done is legit. The data also indicated that the owner was “a non-Hispanic male, approximately 21 years of age, with dark hair and brown eyes, weighing approximately 150 pounds, and 5 feet 10 inches tall.”
Now for the surprise: The officer testified that “he believed that the driver of the car was the registered owner of the car because he had observed the driver to be a black male, approximately 21 years old, with black hair and dark eyes, approximately 150 pounds and 5 feet 10 inches tall.”
I beg your pardon? Let’s run through these. I’ll agree that a black man is “a non-Hispanic male.” Dark hair as opposed to black hair? Close enough for me. But now we get to the troublesome part: The officer testified, based on a fleeting nighttime glimpse, that the subject had brown eyes. How good are you at gauging the color of someone’s eyes when he looks away from you to avoid making eye contact?
There’s more, and you’ve already figured it out. We can work with the officer on the 21-year-old thing. But how on earth can anyone evaluate someone else’s height and weight while the “observee” is driving past in a car?
Archer’s lawyer no doubt argued each of these points forcefully in a suppression hearing. The trial court, unmoved, ruled that the officer’s observations were enough to establish a reasonable articulable suspicion. The Court of Appeals affirmed, and on Friday, the Supreme Court does, too.
In case you think I’m going to criticize the justices for this ruling, think again; I believe that the ruling in Friday’s order is entirely correct. I’m not sure I’d say the same thing about the original ruling, back in the suppression hearing. But given the nature of appellate review, the justices don’t get to revisit factual determinations. And as implausible as the officer’s testimony seems today, there was at least some evidence to support it: The officer testified to these things, and the trial judge elected to believe him. That means that affirmance is the only way to go on appeal.
The final criminal ruling of the day is Bell v. Commonwealth, but I can’t offer you much in the way of insight. It’s a cocaine-possession case in which the appellate issue relates to the inevitable-discovery doctrine. But the court simply affirms the conviction by reference to the reasoning of the unpublished CAV order from back in January. I have cautioned you that citations to unpublished orders are often close to valueless, but this one truly is that, since no one can discern the basis of the ruling from the body of the order.
An appellant’s lawyer gets a painful lesson in Lewis v. Virginia Beach Estates, LLC. It’s an appeal of a wrongful-death judgment in which the plaintiff was the executor of an estate. The trial court ruled for the defendant on the statute of limitations, and the plaintiff appealed.
Sort of. The plaintiff was named in the complaint as, “Geoffrey F. Lewis Executor Estate of Ruth S. Lewis, deceased.” That’s the way the whole case was handled in the trial court, all the way down to the judgment order. But inexplicably, when the notice of appeal was filed, the name morphed into, “Estate of Ruth S. Lewis.” (Hey, where’d Geoffrey go?) Same thing for the petition for appeal.
Experienced practitioners know that a personal rep, who is a human, can file a suit; but an estate, which is a collection of property, cannot. The same thing applies to appeals from judgments: The court dismisses this appeal with prejudice because the wrong entity had appealed.
Unpublished orders often give us little in the way of guidance for your practice, but this one, when considered alongside recent decisions like Johnston Memorial Hospital v. Bazemore and Estate of James v. Peyton, illustrates the extremely hard line the court takes with the identity of parties. Getting the right party is essentially jurisdictional, not something you can fudge. This little shortcut in naming the appellant resulted in the death of this appeal. I strongly recommend great caution in shaping your own pleadings, both in the trial court and on appeal, to avoid a similar fate in your own case.