ANALYSIS OF FEBRUARY 15, 2024 SUPREME COURT OPINION
(Posted February 15, 2024) The Robes by the beautiful banks of the James continue to whittle away at their argument docket. Today the court hands down a single published opinion that resolves the last remaining undecided appeal argued in 2023.
The focus of McCants v. CD & PB Enterprises, LLC is sacred to me: a Mustang. It isn’t just any Pony; this one is a vintage model, a 1970 Mach 1. As the owner of a late-model Mustang, I salivate at the prospect of one of these, despite the fact that my modern Pony has roughly twice the horsepower of its ancestor. I recognize that owners of Camaros or Corvettes may scoff at my chosen vehicle. Fine by me; they may keep their bowties.
(Ahem) We really should get to the analysis here. McCants owned the Pony and brought it to a MAACO franchise in Richmond for some work. Today’s opinion doesn’t describe the tasks in detail, but it included at least a paint job. The franchise had worked on this car and others owned by the driver in the past, so he felt confident in bringing it there.
The paperwork for the project identified the franchise as the bailee and listed one of its part-owners, a man named Butler, as an estimator for the job. The work took several months, at which point the estimator informed the driver that the work was complete. The driver, who evidently lived in New York, paid the bill electronically and came to the franchise location to inspect it.
No dice, the driver thought upon seeing the car. He pointed out some unsatisfactory elements of the work. The estimator agreed to make things right, and the driver returned north.
A month later, a complex series of communications began. The estimator called the driver and asked him to return to Virginia because “I forgot what it was that you wanted me to do.” Part of this series included the estimator’s text to the owner asking, “Now what do I have to do to get you to get this car?” The driver testified that he interpreted this query, consistent with their past communications, as a request for the driver to accept a discount in exchange for taking the car as-is, with no more work being done.
After some back-and-forth, the driver arranged to send a local pal in to look at the car. That pal looked at it and noticed that the agreed work hadn’t been completed. Virtually all of the communications between the driver and the estimator had been by phone – either voice calls or text messages.
The estimator’s patience was at an end. He initiated proceedings under the Commonwealth’s Abandoned Vehicle Act to seize and sell the car. He did so in his own name; not in the name of the franchise. As the Act requires, he sent notice to the driver … but mailed it to his parents’ home in Michigan, where the driver predictably didn’t receive it. After the statutory period, the estimator arranged for the car to be titled by DMV in his own name. He claimed that he later sold the car to a co-employee for either $2,000 (the estimator’s figure) or $3,000 (the co-employee’s).
The driver was probably outraged at having lost his beloved Pony. Because the person who obtained it had later sold it to a third party – probably not a bona fide purchaser without knowledge of defenses, but that’s a separate issue – detinue was out. The driver sued the franchise for several claims including conversion. The franchise responded that it had terminated the bailment when the driver didn’t make arrangements to pick it up, so the invocation of the Act was proper.
The case proceeded to a jury trial. Society’s microcosm believed the driver’s evidence and returned a verdict in his favor for $78,500. The circuit court denied a post-trial motion and entered judgment on the verdict, but a panel of the Court of Appeals reversed, holding that the estimator had followed the Abandoned Vehicle Act’s requirements, so a conversion claim didn’t lie.
The driver got a writ, and today the justices reverse and reinstate the verdict. The court notes that the driver and the estimator told differing version of the events, and the jury could well have believed the driver’s side of the story. The court emphasizes the estimator’s unusual steps in obtaining title – including the fact that, despite the history of phone-only communications, he never notified the driver of the seizure proceedings except by a writing sent to Michigan – and the fact that neither he nor the co-employee could corroborate the second transaction. Because the jury’s verdict resolved whether the seizure was wrongful, appellate courts have to respect that finding.
Justice Kelsey authors today’s opinion for a unanimous Supreme Court. One of his eight footnotes – readers of Supreme Court opinions know to expect plenty of footnotes from Justice Kelsey, and many of those notes contain goblins – raises an interesting issue that might represent a missed opportunity by the appellee here. Footnote 7 mentions that the estimator was a disclosed agent for the franchise, and adds that the litigants “do not dispute the vicarious liability of” the franchise for the estimator’s conversion. But the remainder of the footnote hints that the proper defendant might have been the estimator, because he wasn’t an alter ego of the franchise, and he “pursued the entire abandoned-vehicle process, from beginning to end, in his personal capacity.”
That makes me wonder how the court would have resolved an objection that the driver sued the wrong party. But because the franchise evidently didn’t assert misjoinder, that issue just fades away.
The Supreme Court also issues an unpublished order today in a habeas appeal. West v. Merritt is an appeal by the chair of the Parole Board, in response to an adverse ruling by the Norfolk Circuit Court. The trial court had granted habeas relief after conducting an evidentiary hearing to evaluate testimony by a key witness who recanted her testimony that the defendant – the petitioner here – committed the crime.
The justices unanimously affirm the judgment in favor of the criminal defendant, turning aside a challenge to the timing of the petition and rejecting an argument that the petitioner waived this proceeding by accepting a conditional pardon. Because this is an unpub, it furnishes no precedential rulings, but it paints an unflattering picture of the investigating detective and even, as I read it, the prosecution in finding a Brady violation.
This order produces an interesting contrast. In all of 2023, the Supreme Court decided just two appeals by unpublished orders. West v. Merritt is the third unpub to arrive in 2024, and it’s only mid-February. Hey, we only have three published decisions thus far. Any rumors of the decline of the unpub would appear to be exaggerated.
ANALYSIS OF FEBRUARY 8, 2024 SUPREME COURT OPINION
(Posted February 8, 2024) We have our first full published opinion of the year. (Last week’s published order merely adopted a Court of Appeals decision.) In Sample v. Commonwealth, the justices take up a challenge to a victim’s photo identification of a robbery suspect. Here’s how today’s opinion succinctly describes the events:
At approximately 10:00 p.m. on September 17, 2019, a man wearing a bandana attempted to rob Mark Angiulli at gunpoint outside of a warehouse garage. Angiulli and his son were loading granite onto a trailer when the man approached Angiulli from the left side. While standing 15 to 20 feet away from Angiulli, the man pointed a gun back and forth between Angiulli and his son and said, “Give me your wallet. Give me your f***ing wallet.” He then “came right up” within two to three feet of Angiulli while pointing the gun directly in his face the entire time. Angiulli noticed the gun’s small barrel and quickly realized the gun was likely a BB gun. Angiulli yelled out to his son that it was a BB gun, and as he grabbed the gun away from the assailant, both men hit the ground. The gun dropped and the man fled the scene.
I note with admiration that it takes guts to wrestle a gun away from a robber, even if you suspect that it’s just a BB gun. When police arrived minutes later, the victim gave a description of the assailant. That produces this concise description of the investigation:
The officer left the scene to search for someone matching Angiulli’s description. He suspected Sample, with whom he had prior encounters, because of Sample’s “very distinctive eyes,” his build, and the direction of the man’s escape. The officer asked dispatch to send Sample’s photograph to the officer’s cell phone, and he returned to the scene 15 minutes later. The officer showed Angiulli a booking photo of Sample on his phone and said, “I have a picture of somebody that I was thinking about, but I don’t know if—you said you just saw their eyes.” After seeing the photo, Angiulli immediately said, “Yep.” The officer clarified, “That’s him?” and Angiulli repeated, “Yep.” The officer then asked again, “But you think that’s definitely him?” Angiulli replied, “Yeah—those big brown eyes, yep . . . he’s light-complected like that.” “Yeah, kind of like pale-ish?” the officer asked, and Angiulli replied, “Yeah. Yep.”
Sample, who lived in the direction the suspect had fled, was indicted and tried on charges of attempted robbery. He moved to suppress the photo identification, claiming that it was unduly suggestive. In a bench trial, the circuit court considered that and denied the motion; the court eventually convicted the defendant and a divided panel of the Court of Appeals affirmed the conviction.
Today, the Supreme Court votes to affirm. Evaluating caselaw on suggestiveness in photo lineups, the court finds that the officer’s tentative description – not a statement that he believed Sample to be the assailant, but merely someone that he was “thinking about” – doesn’t rise to a level of unconstitutional suggestiveness. The court holds that the officer’s comments didn’t induce the victim to “inevitably identify” the defendant.
Having held this, the opinion could probably have ended there. But the court adds a belt to the suspenders by analyzing a five-factor test laid down by SCOTUS in 1972 to determine the reliability of the identification. The Supreme Court today rules that the prosecution met each factor: (1) the victim had a sufficient opportunity to observe the suspect; (2) the victim was highly attentive, testifying that at the time he repeated to himself, Remember him. Remember the gun; (3) at the scene, the victim gave an accurate description of the suspect; (4) the victim felt certain of his identification; and (5) less than an hour elapsed between the attempted robbery and the identification.
Justice Mann pens today’s opinion for a unanimous court. This decision is from the appeals argued in the November session, leaving just one undecided appeal from those argued in 2023.