THREE RECENT AND NOTEWORTHY APPELLATE DECISIONS
[Posted June 17, 2014] Lets take a quick look at three opinions that have come down in the last week.
Anyone who has been to traffic court is familiar with the question, which might seem silly at first: And Officer Jones, did this offense occur in the City of ________? Well, of course it did, you probably mused the first time you heard that. Everybody around here knows that this address is in this city.
Still, prosecutors have asked officers and witnesses this question in criminal and traffic cases in order to establish the nonjurisdictional but still essential component of venue. A crime has to be prosecuted in the locality where it occurred, by statute, and many prosecutors are hypervigilant about getting this tidbit in affirmative testimony, if only to prevent a nagging motion to dismiss. And yet, sometimes they forget to ask, bringing us to last weeks decision from the Court of Appeals of
Williams made the sad mistake of trusting the wrong guy. In this case, that wrong guy was an undercover police officer who expressed a desire to obtain a small amount of crack cocaine. The officer testified that he approached Williams in the 1700 block of
The issue here is whether this is enough to establish venue in
The CAV last week affirmed the conviction, holding that the trial court properly took judicial notice of the fact that the 800 block of
In a closing footnote, the CAV points out that it, too, can take judicial notice of facts like this, hinting that the judges may have gone to Google Earth or Bing Maps and checked to see for themselves. (The opinion refers to the City of
One last procedural point: The court mentions that a challenge to venue is properly made by a motion to dismiss the indictment, not by a motion to strike the evidence. But since the Commonwealth didnt argue in the appellate court that this was an improper mechanism for a venue challenge, the court is able to reach the merits of the issue.
The Fourth Circuit handed down an opinion with the sinister-sounding style,Under Seal v. US. A federal grand jury in
The son testified during the MTQ hearing that the father wouldn’t hold it against him if he did testify, although the whole situation did generate a lot of anxiety for the son. (Gee, arent all federal grand-jury proceedings like that?) The district court weighed the testimony and found that the father-son relationship was protected by a privilege, so it granted the motion to quash.
Thats a noble idea, but unfortunately, theres no such thing as a parent-child privilege. Thats the key holding of the unanimous panel decision handed down yesterday (the day after Fathers Day!) that reverses the district court and requires the son to testify. As the opinion notes, every federal appellate court that has considered adoption of the parent-child privilege including our own has rejected it. In the absence of a well-established privilege, the son was required to make a strong showing of the need for it, but the court finds none here. A mere desire not to inculpate Dad isnt enough.
Two adjacent provisions in the
Husband rebelled at this idea. For reasons that arent evident in todays opinion, he didnt want to accept that one-half interest. He objected to the court directive, and pointed to Code §20-107.3(C) for support. Todays unanimous panel opinion from the CAV notes that that provision specifically prohibits the court from dividing or transferring property which is not jointly owned. This was the wifes account, not a joint account, so the husband argued that he didn’t have to accept that in satisfaction of his monetary award.
The wife responded that a provision in the following subsection did authorize the transfer: The party against whom a monetary award is made may satisfy the award, in whole or in part, by the conveyance of property, subject to the approval of the court.
So, with two subsections seemingly pointing in different directions, which one controls? Actually, the CAV rules that the two provisions dont fight each other; they address different situations. And the court rules today that subsection D does authorize this transfer. True, the husband might not like to receive something other than a cashiers check for his monetary award; but he cant dictate the manner in which hes to be paid. As long as the court approves the in-kind transfer, thats a permissible means of satisfying an obligation like this.