(Posted June 1, 2017) After going without a single published opinion for the month of May, we open June with five new presents from the Supreme Court of Virginia. Today’s primary theme is criminal law; four of today’s decisions involve criminal prosecutions.

I suppose I could keep you in suspense, but because I love my readers, I’ll tell you now: Things do not go well for the accused today.

Criminal law

I’ve long felt that if you’re appealing a judgment that’s based on an adverse jury verdict, one of the best places to start looking for appellate issues is the jury instructions. That’s because appealing a finding of fact is painfully hard, but appealing an adverse decision on a refused jury instruction gives the appellant a very favorable standard of review. The appellant in Howsare v. Commonwealth took me up on that advice and challenged two trial-court rulings on instructions.

This is a murder case in which Howsare shot the victim through a glass storm door. He contended that he fired his weapon merely to scare the victim away from his (Howsare’s) home; he had no intention to injure.

We can ponder another time the plausibility of that defense in light of the fact that he hit the victim three times in the torso at close range. Our issue today is the Commonwealth’s proposed instruction on intent:

Intent is the purpose formed in a person’s mind which may, and often must, be inferred from the facts and circumstances of a particular case. The state of mind of the defendant may be shown by his acts and conduct.

Howsare disagreed with this instruction for two reasons: It wasn’t from the model instructions, and it failed to apprise the jury that it could consider his statements in addition to his acts and conduct.

By the way, what do you suppose is the difference between one’s acts and one‘s conduct?

The Commonwealth agreed on appeal that it wouldn’t be incorrect to add the word statements to the instruction. But it pointed out that Howsare had offered his own instruction on that point:

The statements presented to you as having been made by the defendant are submitted for your consideration along with all the other evidence. The weight, value, credibility and reliability of those statements are questions for your determination.

The trial judge read this instruction to the jury. The justices accordingly affirm the conviction, since it’s well-established that in evaluating instructions, a reviewing court considers them as a whole, not in isolation.

As for the model-instruction objection, virtually every experienced trial lawyer knows where this is going: “Code § 19.2-263.2 expressly provides that an instruction that accurately states the law applicable to the case shall not be withheld for that reason.”

Epps v. Commonwealth presents a situation that won’t arise often. A grand jury indicted Epps on charges of assault and abduction. The foreman signed the indictments as “a true bill” and returned them in open court, just as the statutes require. But the court didn’t get around to entering an order recording the indictments until after trial. Does that make the prosecution invalid?

The trial court didn’t think so. It first learned of the oversight after trial but before sentencing, when Epps raised the issue in a motion. The court dutifully entered such an order, and then denied the motion.

Today the justices affirm. The statutes and rules specify that in order to be valid, the indictment must be signed “a true bill” and returned in open court. Epps conceded that those two things happened. The third “requirement,” of an order recording the indictment, doesn’t have a time limit, and the court finds that it’s procedural and not jurisdictional, so Epps waived the issue by going to trial without raising the defense seven days before trial.

Let’s turn now to Hackett v. Commonwealth, an appeal involving a marijuana-distribution conviction. This one’s about finality, and it includes at least one “Oh, my!” passage for me.

Way back in 2008, police nabbed Hackett selling a modest amount of marijuana. After an indictment, his lawyer and the prosecutor reached an agreement for a plea. Hackett would plead guilty to the original felony charge, and the court would “take the case under advisement for an extended period of time, under any terms and conditions imposed by the court,” with the further understanding that if he was a good boy, the charge would be reduced to a misdemeanor.

I’ve never prosecuted felonies, but my understanding is that this kind of deal happens every day in courts across the Commonwealth. The problem here is that while both the prosecutor and Hackett agreed that this was the deal, no one spelled that out in the sentencing order.

That order came after a sentencing hearing in which the judge gave Hackett a choice. Today’s opinion describes that as “‘walk out of the courtroom with a felony conviction’ or ‘go the extra mile’ and submit to the court’s requirements.” Hackett chose the path to a misdemeanor. The judge gave him three years with 27 months suspended.

But the court never suspended that order. Under Rule 1:1, it became final 21 days later. That didn’t stop Hackett from later petitioning the court to modify the conviction – after all, he had a deal for a reduced charge – and after a dizzying series of hearings and orders, eventually the court concluded that it had no more authority to act. Hackett was left with a felony and no redress.

No redress except an appeal, that is. He went first to the Court of Appeals, which affirmed, the justices then granted a writ, but today they also affirm, noting that Rule 1:1 is ruthless. Only an order entered before the court loses jurisdiction can stop finality. A judge can’t reignite the flame by a nunc pro tunc order.

The justices aren’t heartless; they recognize that this ruling creates a hardship. Here’s a passage that illustrates both that recognition and the rule’s ruthlessness:

This Court is aware that Hackett complied with all the terms and conditions set by the trial court, with the understanding that by doing so his felony conviction would be reduced to a misdemeanor. However, once the trial court’s conviction and sentencing orders became final, the trial court lost its authority to modify the conviction. The Court of Appeals did not err in affirming the trial court’s ruling that it lacked the authority to amend the conviction after more than 21 days had passed since entry of the conviction and sentencing orders.

I mentioned an “Oh, my!” component to today’s decision. When Hackett appealed from the CAV to the SCV, the local Commonwealth’s Attorney assigned cross-error that essentially agreed with Hackett’s contentions. The most plausible explanation for that is a genuine sense of injustice: The prosecutor had made a deal and was doing what he could to carry that out, in fairness to Hackett.

When a criminal defendant appeals, the usual course is that the local prosecutor continues to represent the Commonwealth until and unless either appellate court grants a writ. At that point, one of the lawyers in the Attorney General’s Office takes over. When that happened here, the AAG assigned to the case wrote to the Supreme Court and abandoned the cross-error. That didn’t sit well with the local prosecutor, who asked the justices for leave to brief the cross-error anyway. I’ll allow your imagination to wander as to the likely exchange of correspondence and phone calls between the two prosecutorial offices.

The justices declined to allow the prosecutor to brief the cross-error, but they allowed him to file an amicus brief in support of Hackett’s position. As I read today’s opinion, I admired that Commonwealth’s Attorney, who went the extra mile in order to do what he felt was the right thing.

The lasting lesson of this case is that finality concepts are sometimes tricky for trial lawyers and sometimes even trial judges. The trial judge expressly stated that he had intended to reduce the felony to a misdemeanor, and acknowledged that Hackett kept up his end of the deal. But once the case got into the hands of an appellate lawyer – that AAG I described above – the finality problem became apparent.

Are you tired of reading about affirmances in criminal appeals? How about a reversal? I can help you here, but that’s still bad news for the defendant: Commonwealth v. White is an appeal by the Commonwealth involving a suppression issue. This one contains a major preservation lesson for criminal-defense practitioners.

Police officers arrested White at a Norfolk motel that an officer described as a “known drug motel.” He had just completed what looked like a drug sale to the driver of a car outside the motel. A consensual search of his person revealed a flood of damning evidence, as today’s opinion describes:

* a large amount of uncut “raw” heroin in three baggies of different weights, J.A. at 130-32, consistent with a drug dealer’s typical inventory;

* enough heroin, after cutting, to produce as many as 129 capsules of heroin when most heroin users, the expert opined, possess no more than 2 to 4 capsules at any one time, id. at 145;

* the absence of any smoking devices, capsules, syringes, or other user “work kit[s]” that would allow White to use any of the raw heroin in his possession, id. at 138-39;

* multiple stacks of currency sorted into different denominations and separated into different pockets, which the expert explained is a practice of drug dealers who are fastidious with their revenues, id. at 131; and

* two cell phones, which indicates distribution because, as the expert testified, dealers typically use one cell phone as a “drug work phone” and the other as a “personal phone,” id.; see also id. at 139.

I’m going to leave aside for the moment the obvious question why a guy with that much contraband on his person would ever consent to a search by a cop. For now, I’ll just add that he evidently felt the need to point the gendarmes to more inculpatory evidence. He told the officers to “find my girlfriend Tanya at Room 219.” The officers were happy to comply; when they got there, Tanya helpfully consented to their examining a bag that she confirmed belonged to White. They found a digital scale, small baggies, and 200 empty capsules.

Believe it or not, after all this, the defense was that all this stuff could well have been for White’s personal use, so he couldn’t be convicted of possession with intent to distribute. White moved to suppress the evidence found in Room 219, but the judge didn’t buy it. White was convicted after a bench trial. An appeal to the CAV earned him a surprise: a reversal of his conviction, as the appellate court found the search improper.

The justices agreed to take a look at the suppression ruling. While resolution of that issue turns on a close call involving apparent authority for a consensual search, the justices today find a simpler way to decide the case. They assume without deciding that the suppression ruling was in error, and unanimously find that that error was harmless. Even leaving aside the evidence found in the room, the court rules that the evidence found on White’s person compels a finding that this was for distribution, not personal use. The court cites “the limited role that the challenged evidence played at trial – just two questions posed to one witness, and no mention of it in closing arguments – in concluding that the evidence from the motel room had only marginal significance at trial. The justices accordingly reverse the CAV’s ruling and reinstate the conviction.

Thus endeth a day in which criminal defendants got shut out in the Supreme Court, without so much as a dissenting vote. Then again, this hasn’t been their year; the justices have decided twelve criminal appeals in 2017, counting published opinions and unpubs, and the defendant has won but once.


Mechanic’s liens

Lawyers who handle mechanic’s-lien suits are a bit like appellate lawyers, bookish and focused on minutiae that can have enormous consequences. Many lawyers probably think that both groups speak, if not a different language, at least a separate dialect from “mainline” practitioners. Today we get a ruling in Desai v. A.R. Design Group that addresses how the court views substantial defects in liens. If you’re one of those mainline skeptics, bear with me and read on for an interesting ruling.

I’ll confess that my limited experience with liens, back in the Dark Ages when I handled trial work, convinced me that any defect in the lien would prove fatal. Not so; there’s a statute that says that a lien memorandum “shall be sufficient if substantially in form and effect as follows.” It then goes on to furnish a form that claimants can fill out and record to provide notice of their claims.

A.R. Design did work relating to two properties up in the State of Northern Virginia. Desai was the record owner, as successor trustee of what looks like a family trust. A.R. Design’s vice president ran off the handy form in the Code and filled it out. In doing so, he listed Desai personally as the owner in the affidavit supporting the memorandum. That is, he didn’t list her as the trustee. (He did add an alternate listing of her as executor of the estate of the original trustee. That part doesn’t appear to be relevant to our analysis.)

The form also didn’t include a date from which the claimant sought interest. Finally, in the affidavit, the vice president listed himself as the claimant, not the company. He filled it out with his name followed by “VP,” which we all recognize as his title.

The issue in this appeal is whether one or more of these variances invalidates the lien. The trial court didn’t think so, so it upheld the validity of the lien. Today the justices affirm.

In my mind, two of the court’s three rulings are uncomplicated. The memorandum doesn’t include a date for the commencement of interest, but that’s because A.R. Design wasn’t asking for interest. As for naming Desai in her own name instead of as trustee, the court notes that a trustee holds legal title, and Desai had the right in that capacity to sell or mortgage the property. The justices conclude that “Adding the word ‘trustee’ was not necessary for a valid memorandum of mechanic’s lien,” especially since the purpose of a memorandum is to provide record notice. Listing it like that will cause a title examiner to get a “hit” on Desai’s name when searching the title.

The court’s third ruling gives me pause. The form reads like this, in pertinent part: “__________, claimant, or ___________, agent for claimant, [swore] that _________, owner, is justly indebted to claimant in the amount of $___________ …” The vice president filled out this affidavit by inserting his name and the letters VP in the first blank and lining out the second one. That means that, stripped of extraneous information, the affidavit reads, “Abbas Rahani, VP, claimant, [swore] that [Desai], owner, is justly indebted unto claimant in the sum of [about $183K] …”

The Supreme Court today rules that that’s close enough to validate the lien, because Desai wasn’t prejudiced by the error. In doing so, the court lays down a rule of law that lien practitioners will need to know: “We hold that a defect in a memorandum of mechanic’s lien is substantial if it would prejudice a party or if it would thwart one of the purposes underlying the statute.”

That, you will acknowledge, is a far cry from the any-mistake-is-fatal approach that I had envisioned in my aimless years as a trial lawyer. Even so, I’m troubled by the ruling, although the opinion indicates in a footnote that courts in Michigan, Oregon, and Texas have also adopted this approach. There’s a difference between a company and one of its officers, and this affidavit states that the owner owes all that loot to the vice president; not to the company. This approach seems to me as though it’s allowing the claimant to reverse-pierce its own corporate veil.

Now for the major caveat: I’m in no position to go making forceful pronouncements on something as esoteric as mechanic’s-lien law. I’d prefer to hear from some of my readers who regularly swim in this pool, to see if they believe this ruling is a departure from the traditional strict enforcement of lien laws.

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The five opinions handed down today were all argued in the April session, six weeks ago. There are still six appeals outstanding from the crop argued in the February session, three months ago. (This number may dwindle if the justices hand down any unpubs today. As of the time of my completing this analysis, just before 5:00 pm, no unpubs have hit the wire yet, but that’s normal.)