[Posted March 13, 2008] I have been away for the office on vacation for a stretch recently, so it’s time to catch up with several recent published opinions from the Court of Appeals over that time. Over the past two weeks, the CAV has issued a total of five published opinions, three in criminal cases and two involving Workers’ Compensation claims.

Workers’ compensation

There is a common theme in the two Workers’ Comp cases. In each, the employee had no memory of exactly how he was injured. Normally, that’s a problem, since the employee has the burden of showing that his injury arose out of the employment; that is, that the risk that caused the injury was caused by the employment and not by one of the ordinary risks of daily life. But in both cases, the court finds that there is sufficient evidence in the record to enable the Workers’ Compensation Commission to conclude that the injury is compensable.

Both of the injuries involved falls. In City of Waynesboro v. Griffin, the employee fell as he exited a small, constricted cab on a backhoe that he had just pulled onto a flatbed truck for transportation. In the other, Turf Care, Inc. v. Henson, the employee fell from a ladder as he cleaned leaves out of gutters at a suburban Richmond home. Neither employee could recall exactly what he had done immediately before the fall, and in one (Griffin), there was no other witness. The problem in each was to piece together from the circumstantial evidence just what had happened. The commission fond the circumstantial evidence sufficient to infer that the risk arose out of the employment, and the court affirms these two rulings.

In analyzing these decisions, it’s very important (as it always is) to consider the standard of review. Since the commission had awarded benefits, the employees came into the appellate court holding most of the high cards; they got the benefit of a favorable view of the evidence. With an award in his pocket, all the employee had to do was point to some corroborating evidence that would plausibly support it. And in each case, the configuration of the employee’s work area and the job he was trying to do furnished enough corroboration.

The Henson decision includes two other legal issues. In one, the court reverses the commission’s finding that a separate entity was not the employee’s statutory employer. Henson worked directly for Turf Care, but that company had been contracted by the management corporation for the suburban neighborhood (Windsor Farms, which I recall from my time as an undergraduate in Richmond as a very swanky place) to handle cleanup and other landscape maintenance. Windsor Farms, Inc. once handled that itself, but in 1996, it decided to contract it out to Turf Care. In that manner, it contracted away an activity that it “normally carried on through employees rather than independent contractors.” Under established law, that makes Windsor Farms, Inc. a statutory employer.

Well, since Henson already had an employer, why would the addition of another employer make a difference? Ah; that’s the subject of the other legal issue decided in this case. Turf Care didn’t have Workers’ Comp insurance. It thought it did, as it hired a payroll company that was specifically supposed to do that. Instead, the payroll company allegedly took the payments and didn’t buy the insurance. This, if proven, would no doubt constitute embezzlement by the payroll company. But Turf Care is the one who bore the brunt of the alleged theft, since the commission essentially held it strictly liable for not having insurance (which the Code says each covered employer “shall” maintain). The court reverses the finding that Turf Care breached that obligation, since one of the ways you can comply with the insurance requirement is to hire a payroll company to buy it for you. According to the opinion, Turf Care had no idea that it wasn’t covered until this case arose, so the court wasn’t about to hold the company liable for, in essence, being a victim of theft.

Criminal law

There’s a difference between the terms of probation and the terms of a suspended sentence, and that difference gets plenty of air time in Reinke v. Commonwealth. Reinke was found guilty of several sexual offenses involving his teenage stepdaughters. Before sentencing, he favorably impressed the trial court by offering to allot most of his pension to his wife for the payment of her housing and related expenses while we was up the river; otherwise, he worried “how they will get by if I’m not around.” Well, he was not going to be around for a significant period of time, so the judge found this voluntary offer touching, and indicated that the sentence imposed would reflect that generosity. Reinke got four sentences totaling about 39 years, but suspended all but eight years based on several conditions. One of those conditions was his payment of that allotment “for house payments, maintenance of said residence and for general support of” the wife and daughters.

That worked fine for a year and a half, but then the inevitable fly landed in the ointment: The wife sold the house. At that point, there was no longer any need to make housing support payments, Reinke reasoned, so he stopped the allotments. That produced a show cause for violation of the terms of the suspended sentence. At that hearing, Reinke argued that the allotment requirement was a condition of probation, and since he was still in the Big House, his probation hadn’t started yet. As arguments go, that’s an awfully clever one, but it falls flat as the Court of Appeals rules that this was clearly a term of the suspended sentence, not of the separate and subsequent probation.

But there’s more. At the hearing, Reinke moved the trial court to modify the terms of the suspension, since circumstances had changed (because of the sale of the house), so it asked the court to drop that requirement. The trial court held that it couldn’t do that, by virtue of Rule 1:1. The trial court then revoked the suspensions and resuspended them, requiring Reinke to pay down the arrearage by $500 a month once he left prison.

With this ruling, the appellate court takes issue. The trial court revoked the original sentence, as it had a right to do, and it reimposed sentence with slightly different terms, as it had a right to do. But that, the Court of Appeals finds, is “a new sentencing event,” and the trial court has the authority to reconsider the previously imposed terms, including the allotment requirement here. On this point, the modified sentence is reversed and remanded. That’s not exactly a free pass for Reinke; the same judge will now consider whether he should chuck the requirement for the allotment. But where there’s life, there’s hope, and Reinke’s request for a modification just got renewed life.

There’s a real legal scrap in Johnson v. Commonwealth over the age-old question of just when it’s too late for a criminal defendant to change lawyers. Now, the less cynical among my readers might find it hard to believe that such defendants might figure they can delay their day of reckoning by making a request on the morning of trial for a new lawyer, and the continuance that switching lawyers would normally entail. But trust me, you ingénues out there; it happens. As you can imagine, trial judges have come to regard such requests with skepticism.

This case, however, has an interesting twist. The intriguingly named Amen Hotep Johnson was indigent, so he got a court-appointed lawyer to defend him against charges of possession of a firearm by a convicted felon. His case was continued five times – three times at his request, and once by joint motion. When the sixth scheduled trial date arrived, a retained lawyer showed up. He explained that Johnson’s family had recently come into some money, and had hired him about a week earlier. He would need some extra time, of course, to prepare . . .

The trial judge viewed this request, coming a week after the retention and a few minutes before trial, with skepticism. Reasoning that he had “never believed that a defendant had a right to hire an attorney on the morning of trial,” he denied the motion and started the trial, with the (by now presumably dissed) court-appointed lawyer in charge of things. Johnson wound up with five years in prison, and we wind up with this appeal.

The Sixth Amendment guarantees a defendant the right to counsel, and generally that means counsel of his choosing. If a guy can afford to hire the best lawyer in town, then the Constitution says he can do so. But the inherent limitation on that right is the “countervailing state interest in proceeding with prosecutions on an orderly and expeditious basis.” This last part is designed to thwart the attempts of those defendants who figure they can postpone trial indefinitely by the simple expedient of firing a lot of lawyers, one by one. Caselaw indicates that a last-minute change of counsel requires “exceptional circumstances,” and the trial court didn’t find those here. The Court of Appeals, in a split panel decision, agrees and affirms the conviction. Judge Humphreys, writing for the majority, concludes that there was no compelling reason to grant this sixth continuance under these circumstances, so the trial court did not abuse its discretion in denying the request.

Judge Haley dissents, finding that the protections afforded by the Sixth Amendment are not truncated by “any state interest in avoiding ‘last minute’ continuances.” He frames the question in terms of just how much this one last delay would have cost the process of orderly and expeditious prosecutions. Under these circumstances, he reasons, there would be little harm in allowing a short continuance for the new lawyer to get up to speed. He notes that most of the facts of the case had been stipulated, and only one fact remained to be proven. He also observes that the only thing the new lawyer really needed to do was review one 11-page segment from a suppression hearing, and that surely wouldn’t have take so long; he implies that a continuance of a couple of weeks would have been sufficient to allow the new lawyer to handle the matter without damage to Johnson’s Sixth Amendment rights.

Judge Haley also raises one additional issue that will be of particular interest to appellate lawyers. In his appellate brief, Johnson mentions, in his statement of facts, a statute that mandates a new lawyer and a continuance whenever an indigent defendant, who has received a court-appointed lawyer, is no longer indigent. That sounds like a hammer of an argument, but the problem with it, the majority finds, is that Johnson didn’t argue it in his brief. Oh, sure, he mentions the statute (§ 19.2-159.1) in his statement of facts, and it accordingly appears in the table of authorities; but the argument section of the brief is silent on the point. Judge Haley believes that the issue is properly before the court based on these two references, and on the question presented.

Here; I’ll let you decide. Does the following question presented implicate the statute, or just the Sixth Amendment? “Whether the trial court abused its discretion and violated appellant’s Sixth Amendment right to counsel when it refused to allow retained counsel to substitute in this case.” To me, the answer is no; there is a big difference between raising a constitutional issue and raising a statutory issue. (That’s why, for example, raising a simple hearsay objection at trial isn’t enough to preserve an objection based on Crawford v. Washington, implicating the Confrontation Clause.)

The appellate-practitioner’s point is that you must argue each issue in the argument section of your appellate briefs. While some jurists, like Judge Haley, may find a mention of an argument in the facts section to suffice, in my experience this is very much the minority view. In a famous example just three years ago, convicted sniper John Muhammad assigned 102 errors in the Supreme Court, but managed to waive some two dozen of those by failing to include any argument on those points in the argument section of his brief. If Judge Haley is right, then any mention of an issue – even in the statement of facts – would be enough to enable (indeed, require) the appellate court to devote its attention to that issue. I don’t believe the appellate courts will do a lawyer’s work for him like that. Now, you might somehow get a panel of three Judge Haleys, who have liberal views of what constitutes an argument; but counting on getting a panel draw like that in the Court of Appeals is a poor gamble.

As long as we’re on the topic of hearsay and the Sixth Amendment, let’s look into Abney v. Commonwealth, shall we? Abney admitted to killing his wife by strangulation in a hotel room in FairfaxCounty way back in 1978. Well, he didn’t admit it in 1978; back then, he lied like a carpet to the police, and told them that he was a hundred miles away at the time of her death. The police couldn’t tie him to the crime, so they dropped the matter.

Fast-forward to generation later, and a lot of things have happened. For one, Abney had filed a claim on a life insurance policy he had taken out on his wife a scant two months before her death. He used the “’twasn’t me” line in the ensuing civil litigation as well (although he lost the suit because of underwriting issues). The US Supreme Court decided Crawford v. Washington, requiring confrontation by live witnesses in most cases involving hearsay. And most important for our discussion, forensic science had advanced enough to enable the police to link Abney to the crime using DNA testing. When they went back to talk to him, he had a different story, telling them that, okay, he did it, but it was inadvertent. Evidently having watched the movie Rising Sun, starring Sean Connery and Wesley Snipes (also released in the ensuing years), he told the police that his wife died suddenly during kinky sex, in which she asked him to partially strangle her to enhance her arousal.

Is this sounding fishy to you? It did to the prosecutor as well, and he indicted for murder, and got a conviction. There are three issues on appeal, but two of them, fizzle quickly. Abney argued that his Sixth Amendment rights were violated when the prosecution used (1) a certificate of analysis for the DNA samples, and (2) the death certificate, which had been signed by a medical examiner who had himself since died. He contended that both of those bits of evidence fell afoul of the Crawford doctrine. But these arguments fall on deaf appellate ears, for one simple reason – Abney confessed to the killing, and the only purpose for the certificates was to prove facts he had already admitted. Evidently Abney was familiar with Crawford, but had never heard of Miranda v. Arizona.

The other argument in the case gets the lion’s share of the legal analysis, and it deals with the prosecution’s use of a written statement from a witness, prepared in 1978. The witness (Abney’s then-girlfriend) recalled much of her earlier testimony, but she didn’t recall all of it. The trial court permitted her to read the portions of the written statement that contained what she didn’t personally recall during the 21st-Century trial. The appellate court affirms this admission of evidence, both on common law and constitutional grounds, and this case will be required reading for evidentiary gurus on this point. The Crawford objection fails, by the way, because the witness was available to testify and be cross-examined at trial.