[Posted June 4, 2010] The joys of my day job have kept me from the keyboard lately, but the Court of Appeals stops for no man; the court handed down one published opinion on Tuesday of this week, and three last week. In addition, the court granted en banc review of the April 27 ruling in Smith v. Commonwealth, in which a divided panel had affirmed a conviction for making a false statement on a firearms purchase form. The circumstances of that case were admittedly a close call, so the en banc grant isn’t surprising.

Criminal law
Practitioners know that while the Code of Virginia proscribes assault and battery, it doesn’t define either of those terms. For that, you have to go to the common law, and that’s where the court heads in order to decide Parish v. Commonwealth this week.

We’ve all heard the derisive idiom, “going postal,” coined after several instances in which US Postal Service employees snapped. In this case, the victim was a letter carrier, and it was the customer who went postal – if you believe the prosecution. Parish was standing outside her business in Alexandria one Wednesday afternoon last year when the letter carrier came by. This is in an area of Old Town where carriers make their rounds on foot. Parish saw the carrier across the street and hollered at her to hurry up. She got some version of “hold your horses” in reply; unfortunately, Parish’s business was the last stop on the route.

When the carrier finally got to the end of the line, she encountered a screaming Parish. The carrier told Parish that she wouldn’t deliver to an abusive customer, so Parish would have to go to the local post office to pick up her mail. She then turned to walk away, but Parish came after her, grabbing her shoulder and pulling her back. The carrier also stated that Parish pulled her hair, turning her around to face the angry customer.

The carrier got away safely, but Parish soon found herself facing charges of assault and battery. She focused her defense on the requirement that there be an intent to harm; without that component, there can be neither an assault nor a battery. According to Parish, her only purpose in touching the carrier was to get her attention. I’m going to go with the hypothesis that it worked for that purpose.

The trial court convicted Parish anyway, and this week, the CAV affirms. It notes that while not every touching is a battery, when a touching is done in “a rude, insolent, or angry manner,” then the trier of fact may infer an intent to harm. And beyond question, the entire set of circumstances demonstrated clearly that Parish’s actions were done in at least an angry manner.

Parish did win one minor skirmish before ultimately losing this battle, and it bears mention for the lesson it offers in preservation of issues. The Commonwealth argued on appeal that Parish had waived any objection to the lack of an intent to harm, because during a colloquy her lawyer had agreed with the trial judge’s definition of the crime without any intent-to-harm component. And indeed, if you look at a short segment of the transcript (reprinted in a footnote in the CAV opinion), it looks like he might well have done that. But the court notes that while the lawyer was in the process of responding to the judge’s question, the court cut him off with yet another question. The lawyer did get around to arguing the intent component later in the colloquy, so the court finds that the objection was properly preserved in the context of the entire exchange.

This lawyer had the presence of mind to ensure that he didn’t leave something out when the judge interrupted him. Keep in mind that while a judge always has the right to interrupt you, that’s not an excuse for failing to make a proper record. If this lawyer hadn’t been so poised under fire, he might well have moved on to another point, leaving out the key component. In that case, the court might well have ruled that this was a waiver.

The lesson here is that sometimes, you have to stand your ground. You need to do so in a respectful way, of course; but you cannot allow a judge to stop you from making a complete record of your objections and arguments. True, each judge has summary-contempt powers, and no lawyer wants to find himself in the position where he’s mentally checking to see if he brought a toothbrush to court. But if you approach the process of record-making in a respectful but firm manner, you can avoid an inadvertent waiver, and maybe stay in the judge’s good graces.