ANALYSIS OF AUGUST 1, 2024 SUPREME COURT OPINIONS

(Posted August 1, 2024) The Supreme Court of Virginia celebrates the turn of the monthly calendar by issuing two published opinions this morning. Both involve criminal cases.

Eckard v. Commonwealth involves a troubling allegation of juror misconduct in a trial for possession of child pornography. After the trial ended with a guilty verdict, a juror placed a wee-hours call to the sheriff’s office. The juror complained “that he was very disturbed by a court process that he was involved in …. He said that he felt threatened, and was threatened in the bathroom, and felt like he had to vote the way of the majority.” The juror had other complaints about the proceedings, including the judge’s decision to condense a two-day trial into one, with the jurors staying late to get everything done.

I am unashamedly – proudly, even – not a trial lawyer, so I don’t know how often allegations like this surface. To my untrained eyes, this looks like serious misconduct, something that a judge should look into and take appropriate action if the allegation pans out.

The county’s sheriff, Donald Smith, commendably regarded it as serious enough to investigate. He tried several times to reach the juror and hand-delivered a letter inviting a direct discussion. Despite these entreaties, the juror never responded.

Eckard’s trial counsel eventually filed a motion to set the verdict aside “and schedule this matter for further proceedings.” The court’s staff initially asked the attorneys for available dates for a hearing, but the judge later changed his mind, canceled the hearing, and denied the motion in a written order.

At the sentencing hearing, the lawyer sensibly sought leave to file a written proffer of what he would have adduced at an evidentiary hearing. It appears from today’s opinion that he did file that proffer, though the court didn’t enter any orders acting upon it.

Eckard appealed to the Court of Appeals, assigning several errors including the misconduct issue. In its brief of appellee the Commonwealth noted that the proffer wasn’t in the record and so the CAV couldn’t consider it.

It’s time for a slight but highly relevant digression. What do you do when you get into an appellate court and find that the circuit-court clerk failed to send up one or more documents that are important to your appeal? Happily, there’s an easy answer. Appellate courts are authorized to issue something called a writ of certiorari, directing lower courts to transmit the missing documents. Note that this shares a name with the writ that grants an appeal in SCOTUS, though the two writs have very different functions.

In this situation, you file a motion in the appellate court for a writ, specifying what the missing document is. In my experience, the appellate courts routinely grant such motions; they need, and want, the full record.

The ideal time to do this is soon after the (usually) digital record hits the CAV Clerk’s Office. You can download the record then and scour it to ensure that its complete. If it isn’t, you have plenty of time to file the cert motion before your opening brief is due.

Trouble started when Eckard’s lawyer didn’t check the record, blithely filing the opening brief with a page reference to the wrong document when he assigned the misconduct error. He also didn’t file a reply brief in the Court of Appeals, so the matter apparently came to a head at possibly the worst time: in oral argument.

The CAV panel ruled in an unpub that it couldn’t consider the proffer because that document wasn’t available. In its absence, the panel ruled that the circuit court’s decision wasn’t an abuse of discretion – the appropriate standard of review for decisions granting or denying a post-verdict hearing – so it affirmed.

Eckard appealed onward, and the Supreme Court granted a writ on just the misconduct issue. The assignment of error in that court read, “The Court of Appeals erred when it affirmed the trial court’s summary denial without a hearing of the Motion to Set Aside the Jury Verdict based on an allegation of juror misconduct.” The argument section again relied on the missing proffer.

At about the time of the writ grant, Eckard’s lawyer realized what he had to do, so he filed a motion for a writ of certiorari in the Supreme Court, seeking delivery of the missing proffer, which was still in the trial court’s clerk’s office. The Commonwealth objected, citing the plain language of Rule 5:15(a): “In cases on appeal from the Court of Appeals and those certified for review, the record in this Court consists of the record as filed in the office of the clerk of the Court of Appeals and, in addition, all other documents relating to the case which have been filed in the office of the clerk of the Court of Appeals ….”

The Supreme Court rules today that the language of that rule is descriptive only, and in an appropriate case the Supreme Court can indeed enlarge the record even if the omitted matter didn’t make its way through the CAV. Good news for Eckard, right?

Wrong. Here’s Justice Kelsey’s concise response to the motion: “Though no writ of certiorari was requested in the Court of Appeals, Eckard asks us to issue one. We will not do so.” The Supreme Court holds that the CAV panel did nothing wrong, including by not issuing a writ where Eckard didn’t ask for one.

What follows in today’s opinion isn’t pretty. Folks in the appellate guild refer to the unrelenting waiver rulings as a “bench slap,” but here, Justice Kelsey just keeps pounding long after the echoes of the first slap have faded. Today’s opinion describes a painful list of missed opportunities and procedural errors by defense counsel. It was unpleasant to read.

The Supreme Court fully affirms the Court of Appeals’ affirmance of the conviction. Whether this will engender a habeas proceeding for ineffective assistance, I can’t say; today’s opinion goes on to hold that the vague description of an intimidated juror doesn’t justify “canopenering” the jury’s deliberations, normally held to be wholly private.

There’s one final holding in today’s unanimous opinion. Addressing the specific language of the assignment of error, the court rules that the circuit court’s judgment call on canceling the post-trial hearing was a matter within the court’s discretion. The justices find no abuse of that discretion here.

Justice Mann’s opinion for the court in Durham v. Commonwealth begins with a statement that may surprise some people, even people with law degrees: “The General Assembly has not criminalized the possession of an open container of alcohol when driving a car.” This appeal involves a vehicle search after an investigating officer found open containers inside a car. The search eventually turned up a concealed firearm. The primary issue is whether probable cause justified the search.

The investigating officer approached the suspect car on the driver’s side, noting that four occupants were inside. Everyone except the driver was still; the driver twisted his torso toward the center of the car with his hands out of sight. Looking in, the officer saw an open cup in the center console on the passenger side. He asked about it, and the driver handed it over. The officer smelled it, detected alcohol, and then did something that surprised me: He poured it out.

The officer subsequently found a mostly full bottle of cognac and another open cup, this one containing a blue liquid. He emptied the cup and stashed the bottle in the trunk, not wanting to tempt thieves. He then resumed the search, opened the center console that would be by the driver’s elbow, and found the handgun, still warm.

That generated for the driver the right to remain silent. He told the officer that it wasn’t his gun and he didn’t know how it got there. This is perhaps not the first time an arrestee has offered this very story to a law-enforcement officer.

The driver moved to suppress, contending that Virginia’s open-container law only generates a summons, not an arrest, so a search-incident was unwarranted; nor was there any suggestion that officer-safety concerns justified it. The trial court reasoned that the totality of circumstances made the search reasonable, so it denied the motion and eventually convicted the driver.

Before we leave lower-court proceedings, here’s an interesting line from today’s opinion: “The record makes it clear that during the suppression hearing, defense counsel, the Commonwealth, and the trial court all shared the arresting officer’s incorrect belief that the law prohibited possessing an open container of alcohol in a vehicle while driving.”

Did you see that coming? Well, maybe you did, based on my introduction to this opinion. The point is that no one knew: not the police; not the prosecutor nor the defense lawyer; not even the judge. Everyone is participating in this hearing under a mistaken view of the law.

That matters because on appeal, the driver fell awake and raised an objection to probable cause based on the relevant statute. The act creates a rebuttable presumption of consumption while driving – now, that is illegal – whenever (1) there’s an open container in the passenger compartment; (2) it isn’t full; and (3) the driver exhibits physical characteristics consistent with alcohol consumption. The officer never testified about any such physical characteristics, so there was no presumption and hence, the driver claimed, no probable cause.

A divided panel of the Court of Appeals voted to affirm the conviction. Despite the shifting legal argument, the panel majority assumed for argument’s sake that the issue wasn’t procedurally defaulted, and ruled that that totality-of-circumstances approach was good enough to support the officer’s actions. The dissenting judge cited other CAV opinions – both unpubs – holding that all three circumstances must coincide to justify a search.

On appeal to the Supreme Court, the dominant issue today is the suppression question. The Supreme Court sides with the panel majority below here, holding that despite the three-part test for a presumption in the statute, an officer is entitled to view the circumstances as a whole, and the reviewing court may evaluate them from that perspective, too. Justice Mann points to three observations that properly led the officer to conclude that a search would likely turn up further evidence: “(1) the odor of alcohol coming from inside Durham’s vehicle; (2) an open cup of amber, alcohol-smelling liquid in a front seat cupholder (albeit in the one a little further from the driver); (3) and an open bottle of liquor in the left rear footwell.”

Viewing these circumstances in the light most favorable to the prosecution, the justices find this evidence sufficient to justify the search. The court accordingly affirms the conviction.

*   *   *

These two decisions reduce to one the number of argued-but-undecided appeals on the court’s docket. Only Crumpler v. Stark, the Smith Mountain Lake neighbors’ case, stands between the justices and a fully cleared docket. I count five more possible opinion days between now and the next Gathering of The Robes for the September session, so maybe we’ll see that elusive 100% clearance rate soon.