ANALYSIS OF JUNE 7 AND 14, 2011 CAV OPINIONS[Posted June 15, 2011] Here’s an update of two recent published opinions from the Court of Appeals, both involving criminal cases.
Yesterday, a divided panel unanimously affirmed a drug-possession conviction in Dickerson v. Commonwealth. How does a divided panel “unanimously” do anything? Well, all three judges agreed that the judgment should be affirmed. In this sufficiency challenge, the majority (Judge Petty, joined by Judge Alston) concluded that the defense’s one-sentence closing argument didn’t preserve the argument that the evidence was not sufficient to establish guilt beyond a reasonable doubt.
The facts are stated simply enough; a police officer encountered Dickerson and discovered drugs in his pockets, while Dickerson said the drugs weren’t his and weren’t in his pockets. The judge found the officer’s testimony to be more credible, and convicted. The closing argument for the defense was exactly this long: “Your Honor, my client indicates clearly under oath that that was not his cocaine, that he never possessed that cocaine and I would submit it to the Court with that.”
The majority rules that this argument goes not to the sufficiency of the evidence, but to the believability of the defendant’s own testimony. Since the only issue on appeal is whether the evidence was sufficient or not, the court won’t touch this question under the contemporaneous-objection rule.
Judge Elder files a concurrence. He would hold that the issue was sufficiently preserved, but would affirm anyway, since this is just a good, old-fashioned credibility decision. Obviously, the trial court could have believed the officer, and if that happened, the sufficiency analysis ends quickly for poor Dickerson.
My advice to practitioners is to regard the contemporaneous-objection rule as a dragon that must be confronted head-on. And really, it isn’t that hard to do; but you have to make a more detailed effort than what appears here. Of course, that probably wouldn’t have ultimately helped Dickerson, because if his argument had been preserved, I believe that this decision would have been genuinely unanimous – and also unpublished.
Last week, the court handed down Holcomb v. Commonwealth, which presented the novel medium of using a MySpace page to convey a threat. Holcomb posted some very thinly veiled threats on his page relating to his ex and her daughter, but claimed on appeal that he had not communicated those threats to her. The court rules that posting a threat in a public forum is sufficient to communicate that threat to the victim. My thought upon reading this part of the opinion was that this is like posting a threat on a billboard on a busy street, and then claiming that the defendant didn’t know whether the victim would ever drive by.
There’s also a key ruling that adopts decisions fro US Courts of Appeal in other parts of the country, to the effect that “evidence of the recipient’s reaction is relevant and admissible” when considering whether the defendant had the intent to create fear in the mind of the victim. Note that while this is a specific-intent issue, the court focuses on the victim’s state of mind as an indicator of the defendant’s intent.