ANALYSIS OF AUGUST 18, 2009 CAV OPINIONS[Posted August 18, 2009] The Court of Appeals gives us five more published opinions today. Three of those are in criminal cases, and the others involve Workers’ Comp and VAC Commission decisions.
If a truck driver is injured while he’s on duty and climbing into the cab of his truck, does the injury arise out of and in the course of the employment? The literal answer to that question is “yes and no,” as we learn today in Haley v. Springs Global U.S.
No question about it; Haley was hurt on the job. As he stepped up the 16” to climb into the truck, he felt a spasm in his left leg. It turned out that that simple act ruptured a tendon, and Haley found himself out of work for a substantial amount of time.
Now, from Haley’s perspective, 16” isn’t that big a deal; it’s actually a bit smaller than the normal distance he would step up into a truck’ cab. It’s significantly higher than the riser of a typical step on a staircase (those are generally around 8”), but he was used to it. In addition, he is no pint-sized driver, coming in at 6’4”, 240 (he could probably even take me – at least, before he hurt his leg).
All of this matters because of that innocuous-looking phrase, arising out of. There’s no question that this injury arose in the course of Haley’s employment, since he was hurt while working for his employer. But the court finds today that this injury didn’t arise out of the employment because it’s one of those ordinary activities that re not “a causative hazard of the employment.” If you get hurt while you’re just walking along, or just because you turn to answer the phone, the source of that hazard isn’t different from what any other person normally experiences in daily life.
Haley’s doctor had submitted a report in which he opined that the injury was caused when the trucker stepped up to the cab. But this testimony, the court rules, “simply states the obvious – that the ruptured tendon happened as claimant described it, i.e., while he was working.” The doctor never attributed the injury to any particular hazard that Haley was subject to because of his work, so the claim isn’t covered by the Act.
You’ve heard the phrase, “No good deed goes unpunished,” and that’s the way the employer probably feels today after the court’s opinion in McNamara v. VEC. McNamara is a lawyer who hired an assistant paralegal (a job title I had never encountered before today) in late October, 2006. He worked for her for just over three months before she let him go on February 1, 2007, citing his poor work habits.
The erstwhile employee filed a claim for unemployment compensation, and the lawyer responded that she had fired him for cause. She asserted that he had been unmotivated and unproductive, except when she rode him to complete his assigned tasks. But the court today affirms the commission’s award of benefits to the employee, based on part on the lawyer’s generosity: She gave the employee a Christmas bonus of $200, along with a note saying, “Thank you for your help.” The commission took this as an indication that the money was for “a job well done,” and the CAV, while perhaps unconvinced of the employee’s merit, acknowledges today that that’s evidence upon which the award rationally could be based.
This opinion is published primarily because the court had never previously issued an opinion in a VEC case spelling out the commission’s prerogatives in evaluating a deputy’s award. This case went through three levels before getting to the court: A deputy conducted a hearing over the phone, and ruled in favor of the employee. An appeals examiner then heard the matter (including live testimony from both parties) and reversed, holding that the employer had proved sufficient misconduct to disqualify the employee from benefits.
Now it was the employee’s turn to appeal, this time to the full commission. Sort of. The commission delegated the case to a special examiner, the third individual to consider the claim. (In such cases, the special examiner acts essentially as the commission.) That examiner lobbed the ball back over the net, this time awarding benefits because of the evidence adduced at the second hearing. The lawyer sought review in circuit court, but that court sided with the employee, as does the CAV today.
The court approves the use of the model for review in Workers’ Comp cases, holding that the commission need not spell out the basis for its credibility determinations. There is an exception where the lower officer has made specific credibility findings on the record; in those instances, the commission must set for detailed reasons why it’s reversing that determination. But that didn’t happen here, so the lawyer has to pay benefits to her short-time employee. Remember that the next time you decide to do something nice.
Of the three criminal opinions released today, one relates to a whopper of a jurisdictional issue, so we’ll start there. Simmons v. Commonwealth involves an attempted-murder charge, of which the defendant was never arraigned.
If you go back to Criminal Procedure 101, you’ll find that without an arraignment, there can be no trial; arraigning the defendant is one of the things that the trial court has to do, as a component of jurisdiction. The trouble is that when Simmons was arraigned on seven separate charges arising out of a robbery and murder, the court evidently slipped up and omitted the attempted-murder count. Simmons pleaded not guilty to everything else, and the case eventually proceeded to a jury trial. The jury got him on all counts, and recommended nine years in prison for attempted murder.
Unfortunately, Simmons’s lawyer apparently didn’t notice the omission until after the trial. At that point, he commendably seized upon the doctrine that subject matter jurisdiction is the primary exception to the contemporaneous-objection rule – that one argument that can be raised for the first time in an appellate court. He argued on brief that the trial court never acquired jurisdiction over Simmons, so it didn’t have the power to convict him.
But here’s just a sample of what happened in the trial court:
Throughout the trial, the trial court and the parties apparently proceeded under the assumption that Simmons had been arraigned on the attempted murder charge and had entered a plea of not guilty. Prior to trial, Simmons’s counsel sought to exclude the introduction of Blackwell’s bullet-ridden jersey and referred to Blackwell as the “surviving eyewitness, victim.” In explaining to the jury the charges they would hear, the trial judge stated Simmons had been charged with the attempted murder of Blackwell, and had pled not guilty. During opening statements, the Commonwealth’s attorney told the jury they would hear testimony that Simmons fired at Blackwell after killing Burleigh.
That’s just a toe in the water; for all purposes, the parties acted as though a not-guilty plead had been duly entered. The prosecutor argued his case to the jury, including on the attempted-murder count. The court instructed the jury on attempted murder, and Simmons didn’t object. Nor did he raise a fuss about the sentencing order.
The question becomes one of whether an arraignment is a component of subject matter jurisdiction (which can’t be waived) or of another aspect of jurisdiction (which can). The Court of Appeals finds today that it can be, and emphatically was, waived. The court points to US Supreme Court precedent to the effect that “a defendant who understands the nature of the charges against him and defends against them may not void his conviction based upon the absence of a formal arraignment.” (Ulp!) That would appear to end that inquiry, and this appeal. The court affirms the conviction, ruling that the way that this case was tried means that Simmons wasn’t prejudiced by the inadvertent omission of his arraignment on that charge.
The next case deals with jurisdiction, too: Wilson v. Commonwealth involves a defendant who was sentenced to a year in prison, but before she could be shipped off to The Big House, discovered what she thought was exculpatory evidence. The discovery came more than 21 days after the date of the sentencing order, so ordinarily she’d be out of luck.
But there’s a statute that creates a special exception to the operation of Rule 1:1. Code §19.2-303 provides that a defendant who’s being sent to prison, but hasn’t shipped out yet, can still obtain relief from the trial court, “if it appears compatible with the public interest and there are circumstances in mitigation of the offense.” The statute authorizes the trial court to act, even beyond 21 days, by suspending or otherwise modifying the unserved portion of the sentence.
If you read that short statutory excerpt in a cursory manner, I invite you to go back and read it again carefully. Did you note what wasn’t there? Why, it’s simple: There’s no provision for relief in the event the defendant gets her hands on after-acquired evidence of innocence. This is just for “circumstances in mitigation of the offense.” Mitigating evidence, based on existing caselaw, is immaterial to questions of guilt or innocence; it relates only to one’s degree of blame for the offense. Mitigating evidence can be used to lessen a sentence, but not to spring a defendant completely.
Wilson still asked the trial court to grant her relief, because (she asserted) she now had evidence that the prosecution’s two key witnesses against her had perjured themselves. The court convened a hearing and considered the evidence, but remained unmoved, saying that the court still believed the defendant to be guilty. And then something odd happened:
After the trial court’s oral ruling, Wilson’s attorney asked “If I may inquire, did the Court conclude that it did have jurisdiction under the statute?” To which, the trial court responded, “Let me be clear on that. I don’t believe I have jurisdiction under the statute.”
This offhand comment raises the pregnant question: If you don’t have jurisdiction to consider the matter, why are you ruling on the merits of the motion? Indeed, the CAV today rules that the trial court erred when it found a lack of jurisdiction. The statute clearly gave the court the right to consider the motion. But the CAV also finds the error to be harmless, since it’s clear that the judge did, indeed, evaluate and reject the motion on its merits. The sentence is thus affirmed.
There’s one other worthwhile ruling in this decision. The Commonwealth had argued that Wilson’s brief didn’t comply with the requirement in Rule 5A:20 that the appellant must include authorities in support of her questions presented. The brief evidently cited the statute, but no other authority, leading the Commonwealth to contend that it violated a line of cases holding that unsupported assertions of trial-court error will be regarded as waived.
That rule retains plenty of vitality, but the rub here is that this was clearly an issue of first impression. In that event, the court holds today, it’s useless to cite decisions, precisely because there aren’t any that will be on-point. And since this is a matter of evaluating a Virginia statute, it’s not like you could bring in an armload of persuasive opinions from the lesser states in the Union. Keep this in mind, then, for your next brief on a matter of first impression. You still have to provide reasoning behind your arguments, but if there aren’t any relevant opinions, you won’t be tossed out on your ear because you don’t cite any.
The last criminal opinion of the day is also the only en banc ruling – Noakes v. Commonwealth involves the tragedy of the accidental death of a toddler in day care. Noakes provides day-care services in her home, and she had particular trouble convincing one 15-month-old boy to lie down for a nap. Figuring that his restlessness was attributable to his desire to stand up, she rigged his crib with an eye toward preventing him from doing that.
Her method involved placing cardboard, covered in fabric, atop the crib, and to hold that down by placing a weighted object on top of that. She selected a folded-up dog crate, which weighted 33 pounds, to place atop the cardboard. Before placing the toddler inside, she shook the crib with this arrangement, to ensure that it was secure; she also took certain steps to ensure that his fingers would not get pinched by the impromptu apparatus. Content with that arrangement, he placed the boy inside and went about her business.
It doesn’t take much imagination to see that something bad can happen with an improvised setup like this, and it did. While Noakes was in another room, the boy managed to stand up, pushing the cardboard aside, and eventually the crate slid down in such a way that it entrapped his head between the edge of the cardboard and the top of the crib. The boy died from asphyxiation, and Noakes was charged with involuntary manslaughter.
Today’s analysis is a straightforward sufficiency challenge. In my view, it doesn’t break any new ground, either in matters of criminal law or in the area of appellate review; I believe it is published only because the court publishes all en banc rulings. In 13 pages of analysis, the court holds that a rational factfinder could have found the adduced evidence sufficient to prove the requisite elements of the offense (here, an accidental killing in the improper performance of a lawful act, in circumstances evincing criminal negligence). Judge Elder is the lone dissenter, and he merely points to the language of the original dissent at the panel stage.