[Posted March 10, 2009] Ah, those clever rascals over at the Court of Appeals. As my readers know well, that court issues its published opinions on Tuesdays. Last week, on Tuesday, March 3, I checked the court’s web site several times, but found no published opinions more recent than February 24. I figured that there had been no published opinions that day, and looked forward to today’s batch.

Silly me. The court issued opinions last week on Wednesday, March 4, no doubt because of the snow and ice storm that forced the court to close on Monday the 2nd. Accordingly, when I went to the site this morning to check on this week’s opinions, I found four new published opinions from last week. That means I’ve got plenty of catching up to do.

Criminal law
I’ll confess to being a bit perplexed by a couple of statements in Harris v. Commonwealth, but there’s no mistaking the ultimate conclusion. Harris was required to register each 90 days with the State Police, starting June 2, 2006, because he is a convicted sex offender. When he didn’t register between March 27 and June 19, 2007, a trooper contacted him on the latter date to find out the reason for the delay. Harris came in the next day and registered.

You might think that would be the end of the matter; but you’d be wrong. Harris’s reward for coming in to register was to be charged with the crime of failing to register. (The offense can be either a felony or a misdemeanor, but the opinion doesn’t specify the level of this offense.)

There are two issues in the appeal. The first is whether a State Police affidavit that showed the absence of any registration on file between March 27 and June 19 is admissible over a Crawford objection. The court spends a fair amount of ink in the task of rejecting this contention. I ultimately rules against Harris because the information isn’t testimonial in nature. (Crawford, by its very terms, only bars the use of testimonial hearsay.) The purpose of the registry isn’t to catch crooks, the judges note; it’s to protect the public. And so the records kept there aren’t generated for use in criminal prosecutions, although as in this case, they obviously can be searched for that purpose.

The second ruling is a sufficiency challenge, always a daunting prospect for a criminal defendant. (That’s because the evidence in such instances is viewed on appeal in a light most favorable to the prosecution.)

In order to calculate what I’ll call the Spring 2007 registration deadline, you’d have to know the date on which Harris originally registered. (His most recent registration date isn’t probative because the statute requires registration every 90 days, measured from the last deadline; not measured from the last time he actually showed up. There is, you will appreciate, a difference.) The Commonwealth tried to establish that by offering a document, but the trial court rejected that based on a Brady v. Maryland violation. The Commonwealth evidently didn’t assign cross-error to that evidentiary ruling. Accordingly, we have the problem of figuring out when the first 90-day period started.

The court does this the old-fashioned, low-tech way: It gets out a calendar and counts backward. Starting from the date shown on a notice mailed to Harris in early May 2007, it subtracts 90 days, then another 90, then another 90, and so forth, until it comes to June 2, 2006, the exact date by which Harris was originally ordered to register. It therefore infers that the clock started ticking on June 2, 2006, and ran in predictable 90-day cycles. Since there’s admissible evidence that Harris didn’t register by May 28, 2007, his conviction is affirmed.

I mentioned a couple of troubling statements in this opinion, so I might as well mention those here. First, in addressing the question of whether the registry was created for a penal purpose, the court writes: “Nothing in the statute suggests that the registry itself is penal in nature. Indeed, if [Harris] had complied with the statute there would be no criminal implication.” It occurs to me that this last statement looks out of place; the same could be said of just about any statute that carries a penalty for its violation for noncompliance, from jaywalking to arson to capital murder. Don’t kill people, and there will be no criminal implication. Pay your taxes, and there will be no criminal implication. And yet we accept that each of these matters, clearly prohibited by statute, is equally clearly criminal in nature. This is important, because the court’s finding that the registry isn’t penal in nature is key to its holding that Crawford doesn’t bar the introduction of the affidavit.

Second, Harris’s obligation to re-register arose in a court order that included the following terms: “[Defendant] shall register on or before June 2, 2006 and re-register every 90 days.” Note that it doesn’t say “every 90th day.” That means that if he wants to, he should be able to comply by registering early, before the last possible day (you know, like you’re supposed to do with your appellate deadlines, assuming you’ve been reading my advice faithfully).

Now let’s go back to the affidavit. It observed that there was no registration entry in the State Police records between March 27 and June 19, 2007. But starting with the court’s calculated due date of May 28, and going back 90 days, takes you into late February. Who’s to say that Harris didn’t dutifully go in early and take care of the Spring 2007 registration during the first week of March? Why, no one; that’s who. The recitation of evidence in today’s opinion is silent as to any actions Harris took before March 27. That means that it’s possible that Harris registered commendably early and was convicted for his undue promptness.

Rose v. Commonwealth involves an interesting contention that proves unavailing in the end for the appellant. The question is whether, in a prosecution for use of a firearm while committing robbery, the victim must perceive that the weapon is a firearm.

Rose didn’t even use the gun; an accomplice did, after Rose decided it would be a good idea to rob her former employer. But the accomplice didn’t shoot the victim; nor did he brandish the gun to scare her. Instead, when the victim resisted the robbery, he beat her over the head with it. At trial, the victim said she couldn’t identify what the robbers used to hit her, and testified that she never saw a gun.

The court analyzes the question of whether employing a gun as a cudgel is the equivalent of “using” it under the statute. Citing cases from other jurisdictions, it sensibly concludes that it is; one can use a gun in a number of ways, and using it to attack a victim with blunt trauma instead of by shooting a bullet is perfectly satisfactory. As for the question of whether the victim must perceive that the weapon is a gun, the court dispatches that argument with this nifty riposte:

“Taking [Rose’s] argument to the extreme [always a useful tool for appellate jurists, who must be mindful of what their decision in this case will mean for the next case] would obligate us to find that if a sniper kills or wounds someone from a great distance, and the victim never sees the weapon, the gunman could never be convicted of using a firearm in the commission of a felony . . .”

Judge McClanahan concurs in the result, acknowledging that Rose’s conviction should be affirmed. But she differs with the majority (Judges Frank and Petty) over the victim-perception aspect of the holding. She thinks that by deciding that clubbing someone with a gun is, indeed, using the gun, the inquiry is at an end. She thinks the remainder of the majority opinion should be regarded as dicta, since the victim’s perception matters. Ah, but if that were the case, we’d lose the riposte, and today’s opinion would lose a bit of its spice.

(I can hear Judge McClanahan now, pointing out that the court’s duty is to decide cases, not to spice up the opinions. As a consumer of those opinions, I think I’ll just move on to the next opinion now.)

The next case, Sprouse v. Commonwealth, is the story of an appellant who wins, but not quite as thoroughly as he wanted to win. It’s a DUI-3rd conviction stemming from a bad accident in which Sprouse’s car left the road, rolled over several times, and then hit a tree. A State Trooper got to the scene half an hour later, but which point Sprouse was already in an ambulance. In response to questioning, Sprouse gave a variant of the usual answer to the question, “How much have you had to drink?” He told the trooper he’d had 1 ½ beers, which is a 25% reduction from the stock answer that’s familiar to law enforcement officers across the nation.

The trooper gave Sprouse a preliminary breath test, which evidently came up positive. He told Sprouse that he’d follow the ambulance to the hospital and charge him there with DUI. All this went according to plan; at the hospital, a nurse took a blood sample (which eventually tested at .12%), and the trooper issued a summons, which Sprouse obligingly signed. The trooper didn’t even have to handcuff him; everything went so smoothly.

At trial, Sprouse’s lawyer objected to the certificate of analysis of the blood sample. He claimed that he wasn’t arrested within three hours of the time of the offense, so the implied consent statute didn’t compel him to give up his blood to be used as evidence against him. In fact, he claimed that he was never arrested at all. The prosecutor convinced the trial court that Sprouse was, in essence, arrested, and the evidence came in.

On appeal, the Court of Appeals notes that an arrest is “a basic condition underlying the implied consent statute.” That is, no arrest; no consent; no certificate. And based on a recent Supreme Court decision, the court finds that the trooper never did get around to arresting Sprouse. It rejects the Commonwealth’s contention that by signing the summons, Sprouse submitted to the trooper’s authority. Maybe so, but the same SCV opinion requires that “the arrest must be completed before the driver may be required to take the test.” They got things a little backward here, so Sprouse’s conviction is overturned.

And yet, his victory isn’t as complete as he would want, because of a simple appellate practice error from which you may benefit. Sprouse’s question presented contended that, stripped of the inadmissible certificate, the evidence wasn’t sufficient to convict him. But that isn’t how appellate courts evaluate sufficiency objections; in doing that, they consider all of the evidence that was admitted, including the erroneous stuff. (If you consider it all and it’s still insufficient, then the indictment is dismissed and the defendant walks. If you try to take out the inadmissible evidence that then decide the appeal on what’s left, the appellate court can’t make a final adjudication.) Since Sprouse phrased the question incorrectly, the case is remanded for a new trial, if the prosecutor still wants to go forward without the test results.

The important lesson here is to phrase your question presented (or your assignment of error on the Supreme Court) with the proper standard of review in mind. If you misstate it, you might find that you’ve wasted a perfectly good reversal.

Finally, last week the court granted rehearing in Gheorghiu v. Commonwealth, an appeal involving numerous credit card offenses. In the original panel opinion, issued on January 20, the court had ruled that a number of convictions were final because the appellant’s lawyer had listed several specific criminal case numbers (using the trial court’s docketing system) to note which convictions he was appealing. But in doing so, he had inadvertently omitted several charges of which the appellant had been convicted. The lawyer later filed an amended notice of appeal, in which he included a complete listing, but by that point, more than 30 days had passed since the date of judgment. The original opinion had held that the omitted convictions were final, but the panel now agrees to p[ermit a delayed appeal and consider all of the convictions.

This is as it should be. The General Assembly crafted a statutory “fix” for situations in which a criminal appellant’s attorney misses a deadline, so the appellant doesn’t have to file a (normally fully meritorious) petition for a writ of habeas corpus. The panel applies this statute to permit a delayed appeal of the omitted convictions. Careful readers will note that the rehearing will be before the original panel; not the en banc court.

There’s only one published ruling today; the court considers Logan v. Commonwealth on remand from the Supreme Court. In this case, the Supreme Court held last year that a defendant may have had a reasonable expectation of privacy in the common area of a rooming house. It remanded to the CAV for that court to consider whether the officer’s actions in confronting Logan constituted bad faith.

Before we can even get going, today’s panel notes that the case has, to a degree, been overtaken by events. Specifically the US Supreme Court handed down Herring v. US, 129 S.Ct. 695 (2009). In that case, the Big Supremes held that the question of whether an officer acted reasonably is an objective, not a subjective, inquiry. Answering the implicitly modified question, the court decides today that a reasonable officer seeing Logan in the rooming house hallway would not necessarily have known that a search was unreasonable. How so? Why, the very disagreement among jurists on this point, over the tortuous history of this appeal. The panel notes today that there have been three separate opinions already in this court (not even counting the one in the SCV) with differing rationales. How is a police officer supposed to know better than a bunch of appellate judges who can’t agree among themselves?

The court accordingly finds that the officer didn’t act in bad faith, as an officer in his position could not have reasonably known that Logan had an expectation of privacy. Theoretically one could regard this opinion as a shot across th bow of the Supreme Court, since the CAV isn’t really deciding the question the SCV directed it to address (whether this officer subjectively acted in bad faith). I don’t view it that way; I think this approach is correct. If the panel today had blindly followed the Supreme Court’s mandate, there would have been yet another reversal as the SCV acceded to the holding of its judicial cousins in Washington.

This approach reminds me of a story of a Virginia Beach judge who was a legendary authoritarian down here in this corner of the Commonwealth. The story goes that he took satisfaction in the fact that he had only been reversed by the Supreme Court once, and in that case, the SCV ruled by a vote of 4-3 that “reasonable men could not disagree” on the outcome of a question. “Could not disagree,” indeed.

Domestic relations
There’s a statutory presumption that property acquired during a marriage is marital, unless one party establishes that it’s separate. That presumption is oh-so-familiar to domestic relations practitioners. But what about debt? The statute doesn’t say anything about that.

In Gilliam v. McGrady, the Court of Appeals says something. In what appears to be an issue of first impression (though it’s unimaginable to me that the issue hasn’t arisen before now), the court rules that the same rules apply to determining “marital” vs. “separate” debt. In doing so, it observes that “[w]hether a debt is classified as marital or separate depends on who benefited from the debt.”

The debt here was of the deadliest variety: Trust fund tax withholdings payable to the IRS. That arose out of the operation of the husband’s business. So while both parties may have received things like goods and services by the use of the money, the court rules that the purpose of the original debt (here, the husband’s business) that determines the outcome, not who might have had a bit more disposable income down the line.

The court remands the case to the trial court “to consider the purpose of the trust fund tax debt” (though in reality that looks like a foregone conclusion), not just who benefited from the debt. In doing so, it reaffirms that the wife has the burden of proving that the debt was separate.

There’s one more reminder of the importance of shaping one’s questions presented carefully. In a footnote, the court points out that “[t]he allocation of the ‘marital debt’ is not before this Court on appeal, because it was not addressed in appellant’s questions presented.” That’s a gentle hint that if the questions had been phrased differently, this decision might have been broader in scope.