(Posted December 28, 2017) The Supreme Court of Virginia closes the books on 2017 by issuing four published opinions and one published order today.


Criminal law

We’ll start with an appeal that isn’t technically criminal: Shin v. Commonwealth is an appeal of an unreasonable refusal conviction. When Shin was stopped on suspicion of DUI, an officer asked him for a blood or breath sample. He refused, so the officer read him the implied-consent statute. No change. Charged with DUI-2nd and refusal, Shin was convicted in GDC and appealed to circuit.

In the circuit court, Shin did a surprising thing: He demanded a jury. Long ago, I prosecuted DUI cases, and in my experience, defense lawyers religiously avoided juries, fearing lengthy jail sentences that a judge wouldn’t suspend.

Surprise! The jury shook him loose on the DUI charge, but the judge convicted him of refusal. (The parties stipulated that Shin’s defense to the refusal charge presented no factual issues; only legal questions.) That sidelined Shin for a year – no driving. He decided to appeal, and the justices took the case.

Today, the court affirms, turning aside three legal challenges. The court finds that on this record, the Commonwealth didn’t impose an unconstitutional condition on the exercise of a privilege. This is, as far as I can see, the first SCV opinion to apply Birchfield v. North Dakota, last year’s SCOTUS decision requiring a warrant for a blood test (though not for a breath test). Shin focused on the wording of the Rule 5:11(e) written statement, which recites that the officer “demanded a blood and breath test.”

But the record also shows that the officer read Shin the implied-consent declaration, which says that a driver will submit to a breath test, and only to a blood test if no breath test is available. Given the ruling in Birchfield, that demand for a breath test doesn’t offend the constitution.

The court next rejects the contention that the implied-consent statute is void for vagueness. While Shin raises a facial challenge to the statute, the justices first determine that he has to clear the as-applied hurdle, or he doesn’t have standing to make the facial challenge. Shin’s only reason for refusing the breath test was because “he did not believe he was intoxicated” at the time. That’s no excuse; the SCV has previously swatted aside a driver’s subjective belief as a reason for refusing. The whole point of the test is to remove any doubt.

Finally, the justices reject Shin’s claim that the statute violates Virginia’s constitutional ban on self-incrimination. Shin argued that Virginia’s protection is broader than its federal counterpart in the fifth Amendment; but prior caselaw from SCOTUS renders that a dead end.

Next we’ll take up Pijor v. Commonwealth, which raises an intriguing legal issue. After a defendant has been acquitted of a crime, can he then be charged with lying in order to secure the acquittal?

Pijor was originally charged with stealing his ex-girlfriend’s dog, Ben. At trial, he insisted that he hadn’t taken the dog. But his lawyer asked the proverbial one question too many: “Have you seen the dog since September the 6th?” Pijor answered in the negative. The jury acquitted him.

But Pijor appears to be one of those people who just can’t let go. Five days after the acquittal, a guy looking very much like Pijor, walking a dog looking very much like Ben, walked by the ex’s house. The dog carried a Frisbee. Three weeks later, the same thing happened again. A bit later that day, the Frisbee struck the ex’s front door.

One week later, the ex and her then-current beau encountered the man and the dog, and confronted them. The ex called Ben’s name, and he appeared to recognize her. The man ran away, evidently dragging the dog with him. Several weeks later, a detective tracked Pijor down and arrested him. I’m happy to add that today’s opinion contains the welcome phrase that the arrest took place “with Ben in his car.”

Pijor responded to the ensuing perjury indictment by claiming that the Commonwealth could not now prosecute him because a jury had acquitted him of an essential element of the perjury charge. The judge didn’t bite on this approach, and neither did the Court of Appeals. Today the Supreme Court makes it unanimous.

Collateral estoppel in this context only applies when the jury necessarily resolved a particular factual issue in the defendant’s favor. But the larceny-trial jury returned a general verdict of acquittal. And in truth, Pijor wasn’t indicted for seeing the dog after the date of Ben’s disappearance; he was indicted for stealing Ben.

Thus the defense lawyer’s one-question-too-many tactic backfires. We don’t know whether Pijor was originally tried for grand or petty larceny; that depends on whether Ben’s value exceeded $200. But perjury is undoubtedly a felony. (Update 5:00 p.m.: A pal has pointed me to a statute that makes it a felony to steal a dog, regardless of the dog’s value. So while Pijor might have pleaded down to a misdemeanor, the original charge likely would have been a felony.)



You’ll find a wealth of goodies in Emerald Point, LLC v. Hawkins, involving claims of carbon monoxide poisoning brought by four tenants against their landlord. The tenants claimed that the furnace in their apartment unit was defective, causing the poisoning. After a trial, three of the tenants received awards of $200,000 each, while the fourth, more severely injured, got $3.5 million. The landlord got a writ, and today the justices reverse and remand the case for a new trial. In doing so, the Supreme Court makes these discrete rulings:

The trial court abused its discretion in allowing a plaintiff’s expert to stray from his designated opinions on two occasions. The witness was a doctor who testified about the tenants’ injuries, but added projections based on recent medical literature.

For this ruling, the justices draw on the John Crane v. Jones decision of several years ago. One notable difference is that the trial court in John Crane had rejected the undisclosed evidence, and the Supreme Court had found that to be within the judge’s discretion. Here, the trial court admitted the evidence, and the Supreme Court took the noticeably different step of finding that that decision was an abuse of discretion.

The effect of this ruling is a reversal for a retrial on all issues. But the justices go ahead and rule on other assignments, to resolve disputes that may arise again in that retrial.

The Supreme Court reverses a spoliation instruction that permitted, but did not require, the jury to draw an adverse inference from the landlord’s decision to discard the furnace a year after the injuries. The trial judge had found no sinister intent by the landlord – indeed, no suit was pending when the landlord threw the unit away. The question is whether a litigant has to show intentional loss or destruction of evidence, designed to hinder one’s adversary, in order to permit that instruction.

Here, the justices turn to federal law, specifically the standard for spoliation relief in Fed.R.Civ.P. 37(e)(2)(B). In a matter of first impression, the Supreme Court today adopts the reasoning of the commentary to that rule, and holds that in order to justify a spoliation instruction, “the evidence must support a finding of intentional loss or destruction of evidence in order to prevent its use in litigation.”

The court next agrees with the landlord that the trial court erroneously permitted collateral-issue evidence on liability, in the form of a City inspector who testified about the installation of a replacement furnace. The inspector had stated that the installation was improper because there was no work permit in place. (The City of Virginia Beach later issued the permit.) Because this didn’t relate to either causation of the tenants’ injuries or the amount of their damages, it bore no relation to the triable issues.

The tenants earn a victory in the next appellate issue. The justices defer to the trial court’s discretion in permitting a joint trial involving all four tenants. The landlord had argued that the fourth tenant’s severe injuries had unfairly tainted the trial, coloring the evidence in favor of the other three tenants.

There’s a caveat here, in the form of a footnote:

No issue has been raised in this action about the propriety of four personal injury plaintiffs joining as co-plaintiffs in a single lawsuit (as opposed to bringing four separate actions subject to consolidation in the discretion of the trial court). We therefore view the issue as to whether severance was required for three of the four claims that had otherwise been properly consolidated for hearing in a single action.

Accordingly, this is not carte blanche for a multi-plaintiff filing, since no one raised a fuss about the four suing together.

Finally, the justices reverse one other ruling below. The three less-injured tenants had each sued for $100,000 in compensatory damages and $350,000 in punitives. At the close of all the evidence, the trial court struck the punitive claims. The three tenants thereupon moved to increase their compensatory ad damnum to $450,000 each, and the trial court permitted that.

It is, in fact, permissible for a court to allow an amendment like this mid-trial; but not, the court rules today, after all the evidence is in. An amendment like this changes the playing field for the defendant, and he’s normally allowed a continuance to deal with it. That might allow him to generate some different evidence.

The justices accordingly reverse this ruling. But there’s an asterisk (at least a metaphorical one) appended to it. Because a reversal and remand means the parties start trial proceedings anew, the tenants are allowed to move now to amend their ad damnum upward, and presumably that motion would be granted. In the same vein, I foresee that they may amend the expert witness’s disclosure to facilitate the admission of the evidence described in the first issue above.

That means that on retrial, the tenants wouldn’t have the spoliation instruction and wouldn’t be allowed to call the City inspector, but otherwise they might get much of the same evidence in.

There’s a published order today, in Ahmed v. Commonwealth, a personal-injury claim filed by an inmate in a state prison. The inmate promptly followed internal grievance procedures, and upon exhausting those, filed a notice of claim within 12 months thereafter. He then filed suit, but the trial court sustained a plea of the statute of limitations. The Commonwealth convinced the judge that the special statute for these claims requires that the notice of claim be filed “within one year after such cause of action had accrued.”

The math works in the Commonwealth’s favor; the injury occurred on September 10, 2013, and he submitted the notice on September 22, 2014 – one year and 12 days later. Unfortunately, the Code works differently from the math. By statute, “an inmate must first exhaust administrative remedies” before filing suit, and the statute tolls the limitations period while the grievance process is underway. The justices accordingly send this case back to the trial court for further proceedings.

In addition to these published decisions, the justices also hand down an unpublished order in a medical-malpractice appeal, Chapple-Brooks v. Nguyen. The Supreme Court affirms a judgment for the defendant doctor. In doing so, it approves of the use of this model jury instruction, to which the patient had objected: “The fact that a doctor’s efforts on behalf of his patient were unsuccessful does not, by itself, establish negligence.” The justices reject the contentions that it constituted commentary on the evidence and that it was cumulative of other instructions. The court declines to consider the patient’s argument that the instruction incorrectly and incompletely states the law, because she had made no such objection at trial.


Sexually violent predators

Stop. Whoa. Do not skip forward to the next section simply because you don’t handle SVP litigation, because the opinion in Rickman v. Commonwealth contains a very interesting and important explanation of a vexing aspect of statutory interpretation. Besides, there is no next section; this is the last set of the day. You may as well stick around and learn.

Nonlawyers occasionally give us a hard time when they encounter judicial holdings to the effect, “in this situation, the use of shall actually means may …” Laymen understand readily the difference between a requirement and permission, and they find it odd that our decisions sometimes bend the meaning of ordinary words. This opinion will help you to understand the reason behind what looks like linguistic legerdemain.

The Commonwealth filed a civil-commitment petition against Rickman on August 28, 2015, shortly before he was due to be released after serving a lengthy prison term for sexually violent crimes. By statute, the circuit court was required to schedule – it plainly says “shall schedule” – a hearing on the petition within 90 days, or by November 26. Rickman’s lawyer and the assistant AG exchanged some e-mails to try to get a convenient date for everyone, including the Commonwealth’s expert. They eventually settled on January 8, 2016, 43 days after the end of the 90-day period.

In the e-mails, Rickman’s lawyer reserved the right to object to a hearing after the statutory period lapsed. She followed through on that, filing a motion to dismiss in early December. The court first granted the motion, but reconsidered and reinstated the case, ruling that the lawyer had effectively waived the argument by not raising the argument before the 90th day. The court then conducted the SVP hearing as scheduled and ordered the civil commitment.

In the Supreme Court, the case lands in the capable hands of Justice Kelsey, who begins his analysis with a section entitled, “The Mandatory-Directory Distinction.” With a mandatory requirement, shall really does mean shall; while in directory statutes, it gives the trial court discretion.

The basis of the distinction is whether the statute prescribes a remedy for violation of the requirement. For one easy example of a mandatory requirement, the Speedy Trial Act requires trial within a certain amount of time, and it states what happens if the time expires without a trial (or an agreed continuance or waiver by the defendant): The defendant is “forever discharged from prosecution for such offense.”

In contrast, directory statutes require a certain action, but don’t specify what must happen if someone blows it. In those instances, “where the consequences of not obeying [the requirement] in every particular are not prescribed, the courts must judicially determine them.”  You may be surprised to learn that under Virginia law, the use of shall “is generally construed as directory rather than mandatory.”

The result of this analysis is that the trial judge had the ability to fashion an appropriate remedy for not convening the hearing within 90 days. Rickman’s appeal presented only one surviving assignment of error: He asserted there that the only permissible remedy was dismissal of the SVP petition. To be sure, the trial court could have imposed that sanction, but its refusal to do so was not legal error. That means that the Supreme Court affirms, and Rickman’s civil commitment stands.