[Posted April 8, 2008] This morning, I attended the Norfolk/Portsmouth Bar Association’s Bench-Bar Conference, at which I had the pleasure of giving a presentation along with Judge Everett Martin on the year’s top civil cases, and hearing Justice Lemons’s keynote address on the difference between ethics and civility (he argues compellingly that ethics sets a minimum requirement for our conduct, while civility is the celestial aspiration). While I was there, the Court of Appeals dropped no fewer than seven published opinions on me. All of today’s rulings are in criminal appeals, and the inmates don’t do very well at all, with arguably half a victory and 6 ½ losses. This morning’s developments will leave me a bit behind in posting analysis of those seven cases. I’ll post as many as I can this afternoon, and will finish the discussion tomorrow morning.

Criminal law

Morris v. Commonwealth presents an intriguing argument that will give many criminal practitioners pause. We all know that the Commonwealth must show proper venue for the offense; that is, that it occurred within the territorial limits of the trial court’s jurisdiction. Many direct examinations of investigating officers end with the perfunctory-sounding question, “And officer, did this offense occur in the City of ______?” In that vein, this case produces a novel venue issue that might just merit additional appellate scrutiny.

Morris decided that December 12, 2005 was a good night to get good and stoned. She smoked crack cocaine, and undoubtedly possessed a glass tube for that purpose, plus a couple of syringes for shooting heroin, and a dollar bill with heroin residue. She ingested so much that it rendered her unconscious, with the aforementioned items in her pockets.

A friend evidently found her in this state, and called an ambulance. The rescue folks picked her up in Henrico County, just outside Richmond, and took her (unconscious the whole way) to a hospital in Hanover County. At the hospital, a deputy sheriff had just a couple of questions for her when she woke up, about all that stuff in her pockets. Morris was admirably forthcoming, unless you’re a criminal defense lawyer, in which case she was foolishly forthcoming; she told the deputy that she knew all about those items. She wound up getting prosecuted in Hanover for possession of heroin and cocaine.

Her lawyer (the one who just got through cussing her out for being so foolishly forthcoming) raised the aforementioned novel issue – possession is a specific intent crime, so the Commonwealth has to show that a defendant “knowingly and voluntarily” possessed the contraband in order to get a conviction. But the whole time Morris was in possession of the stuff while in Hanover, she was unconscious, and had not asked to be transported there. How can you “knowingly” possess something while you’re out cold? And how can you “voluntarily” possess something in a given venue when you have no idea that you’re there?

This argument didn’t impress the trial court, and a panel of the Court of Appeals agrees today with the trial judge. It finds that possession is a continuing offense; that voluntary intoxication does not eliminate criminal culpability; and that the factfinder may infer purpose and intent from the fact of possession. It also points to caselaw that holds that where the criminal acts occur in multiple jurisdictions, “the offense is committed and cognizable in each.” It concludes that Morris’s “knowing and intentional possession of the items continued as she was transported into another jurisdiction,” so the convictions are affirmed.

Now, don’t get me wrong; I am not an apologist for criminal defendants. I spent nine years in Virginia Beach City Hall, and a fair part of that time was spent prosecuting crimes under the City ordinances. But even the former prosecutor in me is deeply troubled by this ruling. There was no reason why Morris could not have been prosecuted in Henrico, and it occurs to me that the voluntary intoxication distinction made by the court today is different in kind, and not in degree, from what happened here. I simply see no plausible answer to the question of how one can be held to have “knowingly” possessed drugs in Jurisdiction X when she had no idea she would be taken there. Suppose the police decided to transport her to a jurisdiction with a preferred, tough-on-crime prosecutor, or a reputation for extra-tough juries? Suppose she had been picked up in Currituck County, North Carolina, and taken without her knowledge to the nearest hospital, in Chesapeake, Virginia?

It is eminently foreseeable to me that this case might get en banc or Supreme Court scrutiny to address these significant concerns. But for now, Morris’s convictions stand.

In contrast, today’s ruling in Bunch v. Commonwealth will engender few howls of protest from commentators (and certainly none from me). Bunch was parked illegally in Norfolk in an area known for drug deals. An officer, having thus received this plaintive “come investigate me” invitation, walked up to the car and found a very nervous Bunch in the passenger’s seat. Bunch was unable to produce any identification, but he did twice reach down beside the seat, where the officer probably could not see.

Memo to crooks: When confronted by an officer, never, never reach into dark areas while the officer is watching. That produces a very understandable concern for the officer’s safety, and at that point, you are exiting the vehicle, whether you want to or not. When Bunch got out, the odor of marijuana was, . . . well, let’s just use profound instead of a weightier adjective. The officer patted him down and felt some lumps in his coat pocket. He reached in and pulled out six bags each of marijuana and cocaine, after which Bunch got a free ride to lockup, and charges of possession of the two drugs with intent to distribute.

Bunch argued before trial that the officer exceeded the scope of a permissible Terry stop when he reached inside Bunch’s coat. The officer knew by that point that there was no weapon, and Bunch argued that a pat down only justifies a search for weapons. The appellate court today rules that a Terry stop may be so constrained, but the officer’s independent probable cause inquiry certainly justified further investigation, specifically including reaching inside the coat. Probable cause in this context requires consideration of all of the circumstances of the case, and given everything the officer knew, he was justified in proceeding as he did.

There are a couple of interesting turns of phrase in today’s opinion, authored by Judge Kelsey. For one, he refers to this concept as the “ ‘plain smell’ doctrine,” citing a law review article on the point. (I guess I need to read more law reviews, because I had never heard that term before.) In another, he describes Bunch’s argument that the officer had to have probable cause to smell him as part of the investigation. Candidly, I would have a hard time listening to an argument like this without chuckling to myself, “You’re kidding, right?” But Judge Kelsey answers the argument more diplomatically than that, noting that no one has a “privacy interest in his odors.” (I can imagine the conversation now. Officer: “Gee, what’s that cologne you’re wearing?” Suspect: “None of your damned business.”) I believe that the smell emanating from a suspect is no more private than is his haircut, or his height. It’s something that’s plainly open to observation, and not legitimately the subject of a suppression motion.

Following the theme of voluntary intoxication, we now turn to Huffman v. Commonwealth, which evidently arose in a PittsylvaniaCounty suburb. Here’s the tableau: Huffman had a 16-year-old girlfriend, and that girlfriend had a mother. Girlfriend and mother go on a trip, and girlfriend tells Huffman that they’ll be back home by Date X. Because of a delay of some sort, they actually return on Date X+1, so Huffman has to wait an additional 24 hours to see his sweetheart. He consoles himself with drink, and then confronts the two in the front yards of two people who, as far as I can tell from reading the opinion, are strangers to the leading actors in this play.

I forgot to mention the final character in this drama: Huffman’s gun. In his drunken ardor, he waved the handgun about, and even threatened to shoot one of the homeowners. When that homeowner asked twice that he put the gun away, and finally said he would call the police, Huffman put the gun away and left. The question is whether all this amounts to brandishing a firearm.

The prosecution can get a conviction for brandishing if it shows that the defendant pointed a firearm, and that he thereby reasonably induced fear in the mind of the victim. No one fussed over whether Huffman pointed the gun, but he contended that the victim never testified that he was scared. This minor point is enough to make this opinion published, so that future generations of lovelorn gun-brandishers will know that, at least in the view of the Court of Appeals, “fear” does not equate to “fright.” It does equate to a reasonable apprehension of injury. And the court finds no fault with the trial court’s decision that the victim apprehended injury, as indicated by his repeated requests that Huffman put the gun away. This important refinement of the law comes in a very small package (the slip opinion is just over 4 pages long) that will be required reading for those handling brandishing prosecutions.

The next case, Price v. Commonwealth, deals with probation violations. Price was a two-time loser who had received partially suspended sentences in both of his previous convictions. After getting out of prison the second time, he wasted no time in finding his local cocaine dealer, and thus tested positive for the drug; a month later, he stood up his probation officer, which we can agree is not a wise course of action. As if that weren’t enough, he then got arrested for burglary and larceny.

Now he’s in hot water for sure; facing the two new charges plus violations of his probation, he has a lot of hard time in front of him. His probation officer reported the two new charges (but not the positive drug test or the missed appointment) and suggested a revocation hearing. The court issued a capias reciting the new charges as the only reason for the revocation proceeding. But the officer did send the court (and Price’s lawyer) something called a major violation report, in which he listed the test and the appointment.

Not all the news here is bad for Price; he was acquitted of the burglary and larceny charges. The probation officer shrugged and suggested to the trial judge that the violation proceeding be dropped, a suggestion that Price heartily endorsed. But the trial court, having read the major violation report, had no intention of looking past the drug test and the missed appointment; it imposed lengthy prison terms for the violations, based on those two incidents alone. Price headed for the Court of Appeals.

The main reason for Price’s objection was that he wasn’t placed on formal notice of the charges against him, since the capias made no mention of these things. But the appellate court notes today that revocation proceedings aren’t part of criminal prosecutions, so the defendant doesn’t get all the same rights as does a defendant who’s facing trial. The notice he receives doesn’t have to be perfect, although it does have to include a written notice of the violations. “That’s the problem,” Price argues. “They left that out of the capias.” But the court notes today that a capias isn’t a formal charging document; it’s just a paper that empowers a law enforcement officer to take someone into custody. Price unquestionably got (in advance) a written notice of the conduct alleged against him, in the major violation report, and that suffices for probation purposes.

There is also a challenge to the trial court’s discretionary imposition of the suspended time, but this argument is stillborn; today’s ruling doesn’t lay out in detail Price’s argument, but I infer that it was merely, “The trial judge was way too harsh on me.” Appellate courts don’t review decisions like that, as long as they’re within the range of permissible outcomes. The court finds today that the term of incarceration is fully justified for someone who thus “squandered his conditional liberty.”

The next two cases both deserve special attention. One is the court’s only en banc ruling of the day (and produces the only dissent), while the other decides a matter of first impression in Virginia law.

The en banc case is Ferguson v. Commonwealth, involving convictions of unlawful wounding and felony child neglect of Ferguson’s foster children. Ferguson was convicted in the trial court of eight offenses involving the children. All but two of the convictions survived the initial panel decision, and an important appellate issue lies in the procedural posture of the case. Ferguson appealed seven of the eight; the panel reversed two of the convictions and let the others stand. The Commonwealth sought and obtained en banc review, but no one raised at the en banc stage the issues relating to the previously affirmed convictions.

Considering that a grant of en banc review completely wipes out the panel decision, and no one addressed those issues in this round, what’s the status of the charges that the panel affirmed? The answer is supplied, in almost dues ex machine fashion, by the court today, which reinstates the panel’s decision on the charges that the panel had affirmed. This might sound obvious, but it does represent an anomaly of sorts, in that the full court renders a ruling on issues that no one briefed, at least at this stage.

The facts of the case are fairly complex, so I’ll just summarize the holdings here. Everyone on the court agrees to reverse and remand the conviction for malicious wounding, since the language of the indictment indicated only the lesser charge of unlawful wounding. That’s a big difference, since the maximum sentence for the malicious variety is twenty years, while the unlawful sort is capped at five years. Ferguson gets a new sentencing (not a new trial, as he had sought) on that charge

In the other ruling, which provides today’s only judicial split, the majority reverses a conviction for felony neglect of the oldest of the three children, then aged 17 years and 7 months. Seven judges find that Ferguson’s conduct toward that child did not rise to the level of a reckless disregard for the child’s health and safety, so that conviction is reversed. The dissent (Judge Beales, joined by Judges Humphreys, Kelsey, and McClanahan) disagrees with this last ruling, and chides the majority for crafting a separate rule for 17-year-olds, making them in essence second-class minors. The statute, the dissent points out, sets the cutoff point at 18, and finds that there is no reason to shade that bright line.

The first impression case is Giles v. Commonwealth, and considers the question of just what is a “dwelling house” in the context of a statutory burglary prosecution. The house in question was vacant at the time; it had been inhabited by a woman who died three months before Giles and two of his pals broke in and helped themselves to some of the goods inside. During the intervening period, the decedent’s son had come by the place roughly once a month to stay over the weekend and look after the place; it clearly wasn’t his home. His last visit was ten days before the burglary.

Once a house has been abandoned for human habitation, then it no longer qualifies as a dwelling house for burglary purposes. The Commonwealth argued that the son’s periodic and temporary residence there was enough to render the house “habitated,” and the trial court agreed. Today, the Court of Appeals agrees, citing a string of caselaw, much of it from other jurisdictions. The dispositive factor, the court finds, is regular (though not necessarily constant) use for sleeping and other normal routine activities like cooking and bathing. It needs to be kept reasonably available for “immediate or rapid habitation (so the owners can’t let it go completely to seed), and indicia like electricity and other utilities, plus appropriate furnishings, may lead the factfinder to conclude that it is, indeed a dwelling house. The court today finds no fault with the trial court’s conclusion that this was, indeed, a dwelling house, so Giles is, indeed, guilty of burglary.

Finally, the court rejects two challenges to state DUI laws in Wimbish v. Commonwealth. There appeared to be ample probable cause for the state trooper to arrest the driver, who even admitted during the field sobriety tests that he felt intoxicated. He also conceded that he had slammed down four beers and two margaritas at a party, and finally, declining further field tests, told the trooper, “There’s no need to do any more tests. You know I’ve had too much to drink.”

Speaking as a former DUI prosecutor, I can tell you that we smilingly call this kind of statement a “confession,” and it’s time to start thinking of the driver as an “inmate.” Nevertheless, the trooper took the driver in for a breath test, which showed his BAC to be .22%, which practitioners know is almost triple the legal limit. It’s also over the threshold of .20% for a mandatory ten-day jail sentence.

There are two issues in this case. The first involves a series of Crawford challenges to the breath test certificate, all of which the court analyzes away today. The court finds that the certificate comprises data, not testimony, so it’s not testimonial hearsay under Crawford. Nor is the listing of the most recent date on which the machine was tested; the court finds that the log book on which that’s based is a business record, which is specifically excluded from testimonial statements in the Crawford opinion. Finally, the court rejects the driver’s creative suggestion that the officer’s testimony that he conducted the test in conformity with approved methods was itself hearsay. (The driver thought he should have been permitted to cross examine the guy who trained the trooper.) In sum, the court finds nothing wrong with the admission of the certificate into evidence, so the conviction stands.

That leaves the issue of the ten-day jail term; the driver argues that that creates an impermissible presumption against him. The problem is this: The mandatory-minimum statute penalizes drivers whose test results are above .20% at the time of testing, without regard to what their BAC levels were at the time they drove. The driver thus contends that the statute creates a presumption that the level at the time of testing is the same as it was at the time of driving. But the court notes today that the statute says, and targets, nothing having to do with the time of driving; it merely punishes those drivers whose BACs fall above the limit at the time of the test.

Other statutes require arrest within two hours of the time of the offense, and prompt administration of the test, so this question may well be academic. It is, in any event, an unavailing argument for the driver. I thought I noticed something, though, that might have escaped everyone’s attention (although it could just be a typographical error). The case notes that Virginia administrative regulations require that the breath test machine be calibrated every six months. This arrest (and this breath test) occurred on December 23, 2006. The log book indicated that the machine was last calibrated on November 30. But (and here’s where there might be a typo somewhere) that’s November 30, 2005, almost 13 months before the date of this driver’s test. If that’s correct, then the certificate probably wasn’t admissible under the admissibility statute. But it’s too late to raise an objection like that now.