[Posted July 22, 2008] There are five published opinions today from the Court of Appeals. There is one important domestic relations ruling, but the major league zingers are in an en banc ruling in a criminal case. Let’s start there; shall we?

Criminal law
In December, a divided panel of the court reversed burglary and larceny convictions in Ferguson v. Commonwealth, on Fifth Amendment grounds. The court set that opinion aside and granted en banc review two weeks later, and today, an even more divided court reaches the same conclusion.

It’s black-letter criminal procedure that after a suspect in a custodial interrogation unambiguously invokes his right to consult with counsel, “the interrogation must cease.” It can only resume if the “interrogee” either gets his consultation with a lawyer, or else he voluntarily initiates further conversation. Ferguson found himself the recipient of some unwanted police scrutiny when officers from two jurisdictions in Southside brought him in for a chat. Without question, Ferguson knew the routine; he (in my view, at least) effectively and repeatedly told the officers that he wanted a lawyer before anything else happened. Surprisingly, the police acknowledged his request, but kept pinging him with questions or other comments that were clearly designed to get him to talk.

Now, if you think you’re in for a straightforward Miranda analysis here, you’re mistaken. What the officers eventually did was walk away from the room where Ferguson was being held, leaving him alone with one man. That man was a friend of Ferguson’s mother. He also, coincidentally, happened to be the chief of police. After what must have been a very uncomfortable twenty minutes of silence, Ferguson finally blurted out to the chief either, “This is messed up,” or “I messed up.” (The chief couldn’t recall exactly what Ferguson said.) That statement, whatever it was, led to some general conversation between the two men about Ferguson’s family and his job; at some point, the chief told Ferguson that he needed to help himself. Shortly thereafter, Ferguson was singing like a guilty canary.

The ultimate questions in this case are (1) whether the conversation with the chief was, in effect, a continuation of the earlier interrogation, and (2) whether Ferguson was the one who initiated the second conversation.

A majority of the court today resolves both of these questions in Ferguson’s favor, reversing the conviction and remanding for a new trial, if the Commonwealth chooses to pursue the matter. The vote is 7-4, with Judge Frank writing the majority. Judge Kelsey files a vigorous dissent (honestly, now; have you ever seen him author a lackadaisical dissent?), and is joined by Judges McClanahan, Haley, and Beales.

For those who handle criminal cases, this will prove to be a genuinely fun decision to read. The majority is clearly bothered by the way in which the police chose to ignore Ferguson’s invocation of his right to counsel. The dissent finds the majority’s citation to a US Supreme Court plurality opinion to be disingenuous (and there is the clang of swords on this point in footnote 9 to the majority’s opinion), and when it comes to the question of just who initiated the second conversation, it’s hard to argue with Judge Kelsey.

Practitioners may find a number of small lessons in this opinion, but the largest one is clear: The court jealously guards a clearly invoked right to counsel, and the accused will win most of the close calls in this arena.

There’s a closely related ruling today in a panel opinion, Knox v. Commonwealth, involving a suspect’s invocation of his right to remain silent. (The rights to remain silent and to have an attorney present during questioning are discrete.) When detectives questioned Knox about a murder, he clearly and unambiguously invoked his Fifth Amendment right: “I don’t even want to talk right now. Not right now.” Evidently these Virginia Beach gendarmes, unlike their Pittsylvania County counterparts in the Ferguson case, had heard of Miranda v. Arizona, so they did the proper thing: They immediately stopped the interrogation.

Sort of. One of the detectives asked Knox if he would like something to drink. Technically, that’s not interrogating him; the US Supreme Court has so held. In response, Knox said, “I’m all right. Can we just talk later?” The detective responded that “there might not be a later,” because two of Knox’s co-conspirators in the murder had already given statements. And that turned on the torrent of incriminating statements, which ultimately resulted in Knox’s conviction and multi-generational prison sentence.

[I recognize that my readership here at VANA is fairly focused. I don’t write to the masses; I write things that will be of interest to lawyers, plus maybe some people in the legal media, those who seek out good appellate jokes, and maybe here and there a Robe or two. Accordingly, I’m not worried that I will be giving assistance to too many crooks when I say that the best advice, with regard to your right to remain silent during a custodial interrogation, is to USE IT!! End of digression.]

The Court of Appeals today affirms the trial court’s denial of Knox’s motion to suppress those statements, finding that he had indeed reinitiated the conversation after having invoked his right to remain silent. In that instance, the police are free to use whatever tales the suspect may tell.

As I hinted above, one key reason why this case went so smoothly for the police is that they consistently did what they were supposed to do, unlike in Ferguson.

Goode v. Commonwealth presents almost no tough issues. Goode participated in an attempted robbery of a security guard, trying to get the guard’s pistol. He and a confederate lay in wait behind some bushes, discussed the plan, concealing their faces with bandanas, and when the guard walked by, one or both of them slugged him, breaking some bones and causing some permanent injuries but fortunately no fatality. The stricken guard, after having been slugged a few times (one of the assailants had a baseball bat, and the other one had a dumbbell), managed to draw the gun and get off three shots. That scattered the assailants, who at this point were, well, outgunned.

Police investigated the crime and eventually found out about Goode and his accomplice. At this point, the two men did the only honorable thing they could – they each blamed the other, trying like the dickens to escape serious trouble. Goode, for example, said it was all the accomplice’s idea, and that once the accomplice hit the guard once, he (Goode) chickened out and didn’t participate.

But under Virginia law, someone who aids and abets a crime is liable as a principal in the second degree. And let’s face it – going into hiding, covering your faces with bandanas, even agreeing on a signal to jump the poor victim, is going to look to a factfinder a whole lot like participating fully in the crime. The panel unanimously affirms the convictions (attempted malicious wounding, in addition to the robbery charge).

I only found one thing to be somewhat surprising about this opinion, and that’s the approach the court takes to reach what is otherwise a foregone conclusion. The accomplice testified that Goode was the principal perpetrator, and the factfinder (here, the trial judge) could have believed that testimony. Ordinarily, that’s the end of the story; if the factfinder gets evidence that could establish guilt beyond a reasonable doubt, the appellate court will presume that the factfinder accepted that evidence. But here, the court assumes arguendo that Goode’s version (in which Goode is far less culpable) is accurate, and still finds him guilty. I’m not used to seeing the court deliberately take the long way around to get to the same conclusion; perhaps the judges wanted to make a pronouncement about principals in the second degree.

Trial judges across the Commonwealth will take note of today’s ruling in Taylor v. Commonwealth, involving three robbery convictions. During the course of police interrogation, Taylor made some incriminating statements. And even after reading today’s decision. I have no idea what those statements were. That’s because the opinion doesn’t set them forth.

How can an appellate decision on the admissibility of statements not include the content of the statements? Well, this particularly smart trial judge, in announcing his ruling at the end of a bench trial, found Taylor guilty and stated on the record that he found the evidence sufficient, “even without considering the Defendant’s statement that had been ruled admissible in this case.” Now that, you have to admit, is awfully clever; even if the statements were both truly awful and truly inadmissible, they are now truly irrelevant, and so they can never form the basis for a reversal (particularly with a bench trial, where the judge is presumed to disregard improper evidence). Citing the recent CAV decision in Luginbyhl v. Commonwealth, the Court of Appeals simply declines to consider the statements in resolving the appeal. Instead, it turns to Taylor’s two remaining issues.

The first of those relates to photo spreads of possible suspects. Police officers showed each robbery victim identical arrays of six photos on a page. They did so in non-suggestive fashion, telling each victim that their assailant may or may not be on the page. Each picked Taylor off the page. The court rules today that there is nothing impermissibly suggestive about this approach; Taylor had argued that only showing photos in series (one photo per page) would be proper.

Taylor ’s final issue is destined to be stillborn; he charged that the evidence was not sufficient to convict him, despite the fact that his three victims positively identified him as the robber. It doesn’t take a long course of studying appellate opinions to know that no appellate court is going to second guess a jury with three eyewitness ID’s, so Taylor’s convictions stand.

Domestic relations
When a trial court makes a ruling on child custody, a statute requires that the judge set forth her reasons for the decision she makes. That obligation is at the heart of today’s ruling in Artis v. Jones, in which the trial court had held its nose and awarded custody to the mother.

When it came to the choice of parents, it appears to me that the little boy who is the subject of this opinion didn’t exactly hit the lottery. According to the opinion, both parents had significant drawbacks in the parenting department. (I’ll let you read the short opinion for the details if you want, but that’s my clear impression.) Faced with a difficult decision on where to send the unfortunate kid, the court stated at the end of the three-day hearing, “I’ve made a lot of notes . . .. I’ll go back and review those notes and get a decision out.” Three months later, the court issued a letter opinion in which it held that the boy’s age (four at the time of the hearing), “the difficult relationship of the mother and father,” and the need for some stability in the boy’s life, required his placement with one parent or the other. The letter opinion then stated that it had given “primary consideration to the child’s best interest” and had “considered all factors contained in Code Section 20-124.3.” At that point, Mom got custody and Dad got visitation.

On appeal, the father asserted that the trial court had not followed the statutory command to “communicate to the parties the basis of the decision either orally or in writing.” Today, the Court of Appeals agrees, and sends the case back for those specific findings. It isn’t enough for the trial court to assure the parties, as this court did, that it has considered all the factors; the statute clearly requires it to explain itself (a duty not common to circuit court rulings, where the judge is generally free in other types of cases to give a short ruling and then adjourn court).

Since the case is remanded, the appellate court declines to address the father’s sufficiency challenge, in which he essentially argues that the trial judge should have decided the evidence in his favor. Somehow I doubt that he will eventually prevail on this point, as appellate judges don’t revisit credibility determinations (a point that both appellate jurists and I preach relentlessly; but it isn’t getting through to the consumers). But for now, the father still has a chance to persuade the trial court of the virtue of his cause.