(Posted December 3, 2020) Here’s a novelty: The Supreme Court of Virginia this morning hands down two 4-3 decisions. Ah, dissents! That wonderful spice in an otherwise drab diet of unanimous opinions! Let’s dig in.


Criminal law

Virginia has a statute that parallels the federal Double Jeopardy prohibition. But a careful look at the two provisions reveals that they’re slightly different. That difference is the battleground for today’s decision in Evans v. Commonwealth.

This decision combines two separate appeals, each of which has essentially the same facts. Both defendants received summonses for carrying concealed weapons; both were convicted of the misdemeanor charge. Prosecutors then obtained felony indictments for possession of a firearm by a convicted felon.

Both defendants moved to dismiss, citing this language:

If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others.

Both trial judges looked at a 2002 CAV decision and held that the prosecutions were for different offenses, since each required evidence than the other. The courts accordingly convicted the defendants, and a panel of the CAV affirmed.

Justice McCullough pens today’s majority opinion, joined by the chief justice and Justices Mims and Kelsey. He notes that difference that I mentioned above, and then explores the court’s jurisprudence on it. Federal law, relying primarily on the 1932 Blockburger decision, turns on the elements of each offense. The statute, as you can see, doesn’t work that way; it prohibits subsequent prosecutions for “the same act.”

The court observes today that on occasion, its prior rulings (and those of the Court of Appeals) have strayed into Blockburger’s neighborhood. The court today corrects that error, expressly overruling one of its own decisions and two from the CAV in favor of this approach:

whether an act at issue is the “same act” under Code § 19.2-294 turns on a common sense assessment of whether (1) the act in question is a separate volitional act, (2) the acts are separated in time and place, and (3) the act differs in its nature.

This is looking promising for today’s appellants. While the elements of the two charges may be different, you have to agree that both prosecutions stemmed from single acts: possessing a concealed weapon by a felon. These convictions are headed for reversal.

Except they aren’t. A bare majority of the court applies this test to these facts and comes up with two separate acts. The court concludes that possessing a weapon is a different act from concealing one, in the same way that brandishing a weapon is different from concealing it. Four justices – the magic number at Ninth and Franklin – thus vote to affirm the convictions.

Senior Justice Millette – sitting in for Justice Chafin, who was on the Court of Appeals when these cases came through – writes a dissent on behalf of Justices Goodwyn and Powell. The dissent agrees that the statute is different from the Double Jeopardy Clause of the U.S. Constitution. They agree that Virginia caselaw has strayed into the wrong analysis in the past, and they agree that it’s a good idea to right that wrong.

But the dissenters draw the line at the majority’s analysis of the correct standard. Specifically, where did the “differs in its nature” factor come in? It isn’t in the statute, and the dissent perceives that the majority has just stepped into the same mud puddle that it just claimed to walk away from. The dissent views “the act” in each case to be the same, and would hold that the felony prosecutions are barred. The majority’s approach, they believe, substitutes inference for evidence, as no one in either case testified that the defendants separately possessed the concealed weapon.

I won’t hide my sentiment here: I believe that the dissenters are right. In my view, the majority strains to find a way to avoid a straightforward application of the statute. Suppose the original prosecution were for firing an arrow from a bow within a town’s limits, and the town secured a conviction for that misdemeanor. Could the local prosecutor later indict the same defendant for a homicide offense if that very arrow struck and killed someone? After all, under what I see as the majority’s approach, the firing of the arrow is a discrete act from its impact with the victim’s chest.

I perceive both offenses – possession of a concealed weapon by a felon, and homicide by firing a bow-and-arrow in town – as a single act.

There’s a short unpub today in Goldberg v. Commonwealth, an appeal of a DUI conviction from Virginia Beach. The issue on appeal is whether the learned trial judge erroneously admitted evidence of a horizontal gaze nystagmus test. A jury clobbered the defendant. The Court of Appeals assumed without deciding that the test was improper, but affirmed anyway because of the overwhelming evidence of guilt. (Exhibit A: The defendant’s statement to the officer, “the higher alcohol content of the malt liquor got me.” What use is a right to remain silent if the suspect won’t use it?)

Today the Supreme Court rules that the CAV got it right, including evaluating the admission of the evidence under the standard for non-constitutional harmless error. (Constitutional analysis would have required a presumption that the error wasn’t harmless.) The court thus affirms in a breezy two-page per curiam order.



The court disposes of the oldest undecided appeal on its docket today. It entertained argument in Jones v. Phillips during the April session, seven and a half months ago. The complexity of the opinion tells you why it took this long.

I intentionally used the word disposes in the paragraph above because this decision comprises 42 pages about the meaning of the word disposition in a statute. It’s a garnishment dispute that follows a judgment – we don’t know how large – by a former employee against the CEO of her former company.

The CEO and his wife owned a home that I assume was in Powhatan County. They took title as tenants by the entireties, as most spouses do. But in 2010, they conveyed the property into their individual revocable trusts, with 99% going to the wife’s trust and 1% to her husband’s. Perhaps the litigation by the former employee played a part in that decision; the opinion doesn’t say.

Years ago, a conveyance like that would have severed the tenancy by the entireties, leaving the property vulnerable to a judgment creditor like the employee. But the General Assembly amended the Code a while back, providing that spouses can make this kind of conveyance and reserve the entireties protection.

Alas, Hephaestus had other plans; he destroyed the home by fire in 2018. The home was insured, of course, and the insurer started making payments to the unfortunate homeowners. The employee got wind of this; she obtained a garnishment summons and slapped it on the insurer.

What happens now? Well, to answer that, let’s check the language of that tenants-by-the-entireties statute: It continues entireties protection for “any proceeds of the sale or disposition of such property …” The property owners claimed the benefit of this protection, and moved to quash (I’ve secretly always preferred to say, “moved to squash,” because that sounds more satisfying) the garnishment.

The creditor replied that the exemption didn’t apply because there had been no “sale or disposition” of the home. Destruction, yes; but the statute doesn’t say that. A circuit-court judge agreed with the homeowners and quashed the summons. The Robes granted a writ to review the matter.

At this point, you’re probably expecting a sedate, even dry discussion of debtor-creditor law that might interest only grammar geeks like me. But no; the jurisprudential fur flies in competing opinions by Justice Kelsey, who writes for the majority, and Justice Goodwyn, who pens a dissent for Justices Mims and Powell.

The bare majority of the court votes to reverse and send the case back for enforcement of the garnishment summons. Citing Black’s Law Dictionary, it notes that disposition involves “the act of transferring” something. The court rules that there has been no disposition of the property when title hasn’t transferred to anyone. The two trusts still hold title, and the spouses are still entitled to possession and enjoyment of what’s left of the property. This, the majority rules in meticulous detail, isn’t a disposition.

The dissent chides the majority for adopting a narrow, legalistic definition of the word disposition. It points out that an earlier edition (from 1957) of Black’s had reported a definition that included the term “destruction of property.” Well, you have to admit that that seems to fit. Justice Kelsey’s riposte in the opinion of the court is that the 1957 definition was based on a single outlier decision from the Eighth Circuit in 1931 that no one had ever seen fit to cite (other than the editors of Black’s, of course). Plus, the editors of the dictionary’s seven ensuing editions saw fit to toss it out of the book.

That’s just one round of the 15-round heavyweight fight here; there are plenty of other jabs and counterpunches on each side. As with the Evans case above, I’ll mention my view of the matter: I agree with the majority. I believe that interpreting the word disposition to include a situation like this requires a strained reading.

If you’re not a grammar geek, you may want to skip this next part – but that would mean that you’re not one of the cool people. You may as well read on. The word dispose comes from Latin roots, dis-, meaning apart, and ponere, to put. Thus, to dispose of something is to put it apart from something else – in this case, its former owner. Its cousins include interpose, to put between; suppose, to put under; impose, to put upon; and depose, to put down. (Insert deposition joke here.)

In my opinion, the word that the homeowners are searching for is conversion, from roots meaning “to turn around.” That’s the process of changing one asset into a different form. But that word isn’t in the statute.