(Posted February 2, 2024) Just when you thought we would endure another dry week from the Supreme Court of Virginia, word arrived by e-mail early this morning that the justices had handed down two unpubs yesterday. Harmless-error analysis permeates both decisions. Let’s take a look.


Actual-innocence petitions

In a short (3½ pages) order, the justices reverse a decision of the Court of Appeals and direct remand to the circuit court for supplemental factfinding. The case is Richardson v. Commonwealth, an actual-innocence proceeding where the CAV had dismissed the petition because, as it found, the petitioner hadn’t exercised reasonable diligence and “a rational factfinder would still convict him once all of the relevant evidence was considered ….”

The Supreme Court agrees with the petitioner that the Court of Appeals should have utilized a statute that permits remand for more factfinding when the case so requires. Reviewing the CAV’s decision under an abuse-of-discretion standard, the Supreme Court reverses anyway, ordering remand to the circuit court for an evidentiary hearing.

The order also holds that the Attorney General may engage in pleading that, in other contexts, would constitute approbating and reprobating. Between the time when the original petition arrived and an amended version hit the CAV Clerk’s Office, political control over the Office of the Attorney General transitioned from the Democrats to the Republicans. The new AG, Jason Miyares, took a dimmer view of the petition than had his predecessor, Mark Herring, and filed a very different kind of response. The justices rule that in these purely statutory proceedings, the OAG can do that.

I noticed a few unusual items about this order. Some were minor: The formatting of the caption has changed since the last unpub issued at Ninth and Franklin, eight months ago. The case name and lower-court listing are now in all-caps. There’s an apparent typographical error on the first page, where the order refers to the petitioner as “Boone.” (His full name is Terrence Jerome Richardson, and I don’t know where the name Boone comes in.) [Update February 5: It’s corrected now, and whoever Boone is, he’s no longer part of our tale.]

Perhaps most significant, the order looks rushed to me. Instead of the customary introduction, where the court sets the table with relevant facts and procedural history, the order dives right into the petitioner’s argument and then lays out the relevant statute. It’s as though the court expects the reader to be already familiar with the case, so it can pick up the discussion midway through a normal opinion’s layout.

Because this is an unpub and it’s unanimous, we can’t know who wrote it. Justice Russell sits this one out, presumably because this proceeding arrived in the CAV while he was a judge there; Senior Justice Koontz sits in for him.


Criminal law

Our protagonist in Swinson v. Commonwealth might have benefited from Gary Cooper’s style – the strong, silent type. Instead, when a deputy sheriff pulled him over at a traffic stop, his mouth remained in gear while the brain was disengaged.

That resulted in a conviction of possession of methamphetamine with intent to distribute. The amount recovered in the arrest was evidently small – about 4 1/3 grams – and he had none of the usual paraphernalia of drug dealers, such as packing materials, a scale, or a big wad of cash.

But he volunteered to the deputy something along the lines of “I have it sold already and am on my way to deliver it for $50.” That, you will admit, is reasonable evidence of intent to distribute, so he received an indictment for the greater offense, instead of simple possession. In fairness to our protagonist, he later said that he was just joking about the sale.

Let’s fast-forward to the jury-instruction phase of the trial. The model instruction for this offense lists several relevant factors for the jury to consider in evaluating intent to distribute, telling the jury that it “may consider all facts and circumstance, including but not limited to ….” The following list ensues:

  • The amount of drugs
  • The manner of packaging
  • The presence of “an unusual amount of cash” and the size of the bills
  • The presence of drug-distribution equipment, such as a set of scales
  • The presence of equipment consistent with personal use, such as a pipe
  • Any weapons at the scene
  • A “pager or other electric communication device” (note the throwback to the 1980s)
  • The defendant’s conduct and statements
  • The location of the arrest
  • The presence of more than one type of drug

Swinson’s lawyer probably looked at this list and smiled. Most of these factors were absent here, so he offered to the judge the model instruction. This would make the instruction a powerful tool in the defense’s closing argument. “Ladies and gentlemen, there was a small amount of drugs; no packaging; no scales; no large bills; no weapons; no pager; no other drugs … you can and should find that Ms. Swinson possessed this for his own personal use only.”

As the saying goes, “Man plans, and the gods laugh.” This promising closing argument evaporated when the prosecution convinced the circuit court to remove the references to the factors that weren’t present here: no reference to cash, drug paraphernalia, a weapon, or other drugs. Instead, the instruction contained only those factors that were present, and hence would point the jury in the direction of guilt.

The jury did indeed settle on guilt. The Court of Appeals assumed without deciding that the circuit court erroneously truncated the instruction, but affirmed the conviction based on harmless error.

This week, the Supreme Court agrees, mostly, that the error was harmless. The evidence included that unwise self-inculpatory statement about Swinson’s planned transfer of the drugs for the princely sum of fifty dollars. The court holds that “viewed holistically, the weight of the evidence strongly supports the conclusion that the jury’s verdict would have been the same even if the model jury instruction had been given in its entirety.” The court cites that self-inculpatory statement as proof that Swinson got a fair trial and the verdict that he deserved.

This conclusion draws one dissenting voice. Justice Mann pens a concise dissent in which he notes that, in evaluating a refused instruction, a reviewing court is supposed to view the evidence in the light most favorable to the party who offered the instruction. That, in this case, would be Swinson. While you or I might scoff at his claim that the inculpation was in jest, a jury might see the evidence differently, and this jury (unlike the appellate courts) got to hear Swinson’s testimony to evaluate whether he was sincere. Appellate courts have to give an instruction’s proponent that chance.

I’ll confess that when I read the majority’s opinion, I agreed that Swinson got what was coming to him. He confessed at the scene, for cryin’ out loud! But Justice Mann’s logic is, in my view, unassailable: This case should have gone back for retrial. The dissent correctly notes that judges in Virginia – unlike their judicial cousins on the federal trial benches – can’t single out parts of the evidence for emphasis. This edited model instruction did exactly that, telling the jury to focus on the factors that tend to indicate guilt. Our trial courts aren’t supposed to do that.

I’ll add one other thing. Like the Court of Appeals, the Supreme Court here assumes without deciding that the truncated instruction was erroneous. Even so, the majority can’t contain its distaste for the instruction; it adds a footnote in which it “takes no position regarding the correctness” of the circuit court’s ruling or the commentary in the model rules that permits the truncation. This looks to me like the majority is holding its collective nose while voting to affirm. I’m admittedly reading between the lines here, but that’s how I see it.

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Both of yesterday’s decisions came from appeals argued in the November session. Two unresolved appeals remain from that session, plus three more from January’s argument docket.