[Posted April 5, 2011] If you like intellectual exercises – and you’d better, if you’re in this profession – you’ll enjoy reading today’s en banc opinion in Foltz v. Commonwealth, a case in which the court granted en banc rehearing sua sponte. That opinion provides some particularly lively debate, despite the fact that all eleven judges vote to affirm the conviction.

Criminal law

So how to you get a hot dispute out of a vote of 11-0 to affirm? You get a couple of concurrences in which the judges disagree on the right path to take to an affirmance. Foltz v. Commonwealth is the case that implicates the police’s decision to place a GPS transponder inside the bumper of a suspect’s vehicle. Last September, a panel of the court voted to affirm (Judge Beales wrote the majority opinion, joined by Judge Haley), with the chief judge concurring based on non-Fourth-Amendment grounds. On rehearing, the chief, who is a very persuasive man, convinces every other judge on the court to join him in dodging the constitutional question.

On the question of whether the case can be resolved without resort to Fourth Amendment analysis, I think the chief is right. Today’s majority holds that while there may well have been a GPS in the car, the actual arrest of the suspect was based on police officers’ direct observation of him in attacking a victim; not from the pings of the GPS unit. The officers followed him from his home using plain-old eyesight, and actually watched as he tackled a woman and tried to assault her. Their prompt interdiction must have seemed like divine intervention to the unfortunate victim.

Based on this situation, today’s majority finds it unnecessary to reach the constitutional question. Judges Beales and Haley continue to insist that, in this instance, the narrowest and best grounds upon which to decide the appeal are constitutional ones. Judge Humphreys authors a separate concurrence, merely to respond to Judge Beales. He urges that Fourth Amendment jurisprudence must evolve as our society evolves (I promise not to rat him out to Justice Scalia on that one), and acknowledges the potential for incipient danger to citizens’ privacy rights form the advances of technology. Yes, George Orwell gets quoted. These three opinions make for very interesting reading, and you don’t have to be a criminal practitioner to enjoy the debate; you just have to be an American citizen.

Today also brings the Court of Appeals’ latest views on voir dire, in Lovos-Rivas v. Commonwealth. Following up on last year’s Supreme Court decision in Hawthorne v. VanMarter, the court today affirms a trial court’s refusal to strike most of the venire for cause, based on a defense lawyer’s questioning about the relative believability of a child witness. The court finds, just as happened in Hawthorne, that considering the voir dire as a whole, the veniremen were properly retained. Judgment calls like this are left to the sound discretion of the trial judge, who has an opportunity that appellate jurists don’t: the chance to observe the responses by the veniremen. In this case, the record left enough ambiguity in the responses that the Court of Appeals finds it proper to sustain the trial court’s exercise of discretion.

I have often preached in CLE presentations that the contemporaneous-objection rules (Rules 5:25 and 5A:18) are ruthless slaughterers of appeals. I have a new Exhibit A for that proposition: today’s ruling in Cortez-Hernandez v. Commonwealth. I’ll warn my readers in advance that this one is going to raise plenty of eyebrows. Here’s the deal:

In a trial for first-degree murder, the prosecution called a witness who testified only to preliminary matters leading up to, but not including, the fatal shooting. The defense cross-examined the witness, and on redirect, the prosecutor started asking about the shooting itself. The defense lawyer properly objected that this examination was beyond the scope of cross. Instead of contesting that objection, the prosecutor did what many another lawyers have done in a similar situation: She offered to “relieve [the witness] and re-call him back.” Based on that simple solution to the problem, the trial judge overruled the objection and allowed the witness to testify about the shooting.

The defense lawyer then rose to conduct re-cross on the new material, only to be met with the trial judge’s inflexible rule, “I do not allow re-cross.” When the lawyer pointed out in a bench conference that the new material would thereby be unchallenged, the judge was unmoved:

DEFENSE LAWYER: I was under the impression that instead of having her call him again one more time that she could continue going because I thought she had exceeded the scope.

THE COURT: No. I overruled the objection, you did not object again, so the objection is noted. You cannot go recross. Thank you. You may step back.

Ouch! Denying re-cross-examination inflexibly as a matter of principle can lead to problems like this; caselaw establishes that a cross-examiner is entitled to re-cross when new matters are raised on redirect. The Commonwealth conceded in the appellate court that the denial of re-cross was error. And yet a majority of today’s CAV panel votes to affirm the conviction and 63-year sentence anyway. How can this be?

It’s the ruthless contemporaneous-objection rule. The majority (Judge Humphreys, joined by Senior Judge Annunziata) holds that the defendant’s objection is waived because the defense lawyer never proffered the questions she would have asked if permitted to do so. Accordingly, the majority finds, the appellate court can’t determine whether or not this exclusion was harmless error.

Judge Haley is having none of that. In a vigorous dissent, he maintains that the denial of cross (or re-cross in these circumstances) is a problem of constitutional magnitude. (The majority responds that the lawyer never made a specific reference to the Sixth Amendment in the trial court, so that issue, too, is waived.) He also argues that even without the Sixth-Amendment issue, the denial of re-cross violates Virginia’s fair-trial statute.

What’s a defense lawyer to do? I wasn’t at the trial, so I can’t know the judge’s mood for sure, but it’s easy to read between the lines and find that he was probably irritated at the defense lawyer at the bench conference. After all, he initially chided her for not objecting when the redirect exceeded the scope of cross; she had to point out to him quite accurately, “I did object.” His curt directive, “You may step back,” can be delivered in a variety of tones of voice, but I have a good, solid guess as to what this judge’s tone was.

The answer to the question with which I began the previous paragraph is, “Persist.” I know it takes guts to stare down an angry trial judge, but you have both a right and an obligation to make a proper record of your position, and that includes a proffer of the relevant evidence. In this instance, what the defense lawyer should have done was (1) raise the Sixth Amendment explicitly, and (2) say to the judge, in a respectful tone of voice, “Your honor, I need to proffer into the record the testimony I would have elicited on re-cross.” If the judge had refused a request like that, he would have been reversed in about 30 seconds – appellate courts are never going to let trial judges insulate their rulings from appellate scrutiny by actively preventing lawyers from making a proper record, as I have written here very recently.

This is a situation in which I sympathize with the defense lawyer, who knew what she was doing, but just didn’t go quite far enough. That being said, it’s quite foreseeable to me that this isn’t the end of this appeal; I think the full court may well grant en banc rehearing, or the justices will grant a writ.