ANALYSIS OF MAY 10, 2011 CAV OPINIONS[Posted May 10, 2011] The Court of Appeals hands down four published opinions today; two each in the fields of criminal law and Workers’ Compensation.
Both of today’s criminal-law opinions are particularly instructive, and since they’re both fairly short, I decline to excuse any of you from reading them both in full. The first is an illustration of an evidentiary trap that’s caught a great many trial lawyers over the years: Isaac v. Commonwealth implicates the evidence-of-same-character doctrine. Please note that this doctrine isn’t limited to criminal cases, so you civil litigators need to pay attention to this, too.
Isaac was indicted for aggravated involuntary manslaughter in connection with a drunk-driving accident on the Capital Beltway. He was injured in the head-on collision and was taken to a hospital where he was continually accompanied by one or more state troopers. While being treated, Isaac consented to a blood test. The prosecution’s sample tested out to .16%, while Isaac’s sample came in at .14%. As soon as he was discharged, he was taken directly to jail.
As just about any lawyer knows, either one of those figures is well above the legal limit in Virginia. But Isaac moved to suppress the prosecution’s sample, contending that the officer didn’t have probable cause. After that motion was denied, he also moved to exclude the certificate of analysis based on the fact that the troopers never actually took him into custody, since they never touched him while he was in the hospital, being treated. The trial court rejected this argument, too, and at trial, the Commonwealth introduced the .16% certificate.
Now, .14% isn’t much less than .16%, but it’s less, and Isaac decided that he’d offer that test report in conjunction with an expert’s testimony that the difference between the two samples made both tests inaccurate. The jury didn’t bite for that, and convicted Isaac.
On appeal, Isaac came to court prepared to litigate his previous objections. But today, the Court of Appeals has a rude surprise for him: It affirms without reaching any of his substantive arguments, because he introduced evidence of the same character as the evidence he wanted to challenge. In essence, the court rules that you can’t object to the Bad Guy’s evidence and then offer the same thing yourself. Today’s panel notes that it would be different if the other certificate had come out only in cross-examination; this rule applies to evidence adduced during a party’s case-in-chief.
This was a cruelly tricky decision for Isaac at trial. The heart of his defense was that the two certificates, because they were significantly different, revealed an unreliable testing process. There’s no way to get that argument to the jury without introducing the second certificate, something the prosecution wasn’t about to do on its own initiative. Today’s ruling emphasizes that he had to make a tactical decision whether to trust his suppression issues on appeal, or else ask the jury to shake him loose based on his inconsistency argument. As you try your cases, civil as well as criminal, keep in mind that by taking the second route, you may be foreclosing appellate review of the first one.
The other criminal decision announced today is Scott v. Commonwealth. It involves convictions for aggravated malicious wounding and child neglect, but we really don’t find out the circumstances of those charges, because this case is all about voir dire.
Scott’s defense lawyer faced something that criminal-defense attorneys probably see a lot of in courtrooms: a venireman who equates indictment with guilt. During voir dire, one venireman revealed that he had a pal who worked at a sheriff’s department in another county. That friend once told our venireman, “if you go to court – and I guess in this particular county – that you’re pretty much guilty.” This, you will appreciate, is a problem. But the defense lawyer followed this up and might not have been happy with the response she got:
Q: So when you heard the charges against Miss Scott, in your head, the fact that she was charged, it made you think that she was guilty?
A: Potentially, yes.
Hmmm. Just about every defendant is potentially guilty. As today’s opinion points out, “The presumption of innocence is not mutually exclusive of a defendant’s potential guilt; indeed, the fact that a person is presumed innocent until proven guilty beyond a reasonable doubt demonstrates that a person may be both presumed innocent and potentially guilty at the same time.” If this were the only thing in the record, the CAV states today, there would be nothing to argue about.
But there’s more. Here’s the decisive question and answer in this appeal:
Q: You would have a problem with the presumption of innocence because of what — because of what that sheriff told you about the charges?
In just a few moments, we’ve gone from “potentially guilty,” which isn’t enough to disturb even the most fervent civil-libertarian, to “probably have a problem,” an uh-oh response that calls for fast action on the part of the prosecutor if he wants to hold onto this potential juror. The prosecutor did act fast; here’s the immediately succeeding question and answer:
Q: Sir, if the Judge instructed you as to what the law is — I mean, he tells you that the Defendant is presumed to be innocent under the law, are you able to follow that law?
This is a classic rehabilitation tactic; just about any juror, no matter how jaded, will say that he or she will obey the judge’s instructions. And once that happens, the party opposing a challenge for cause can say that the juror has demonstrated the ability to judge the case fairly.
Today, the Court of Appeals rules that this type of rehabilitation is too thin to remove the taint of this venireman’s demonstrated pro-prosecution bias. The court points to the fact that leading questions from lawyers, particularly those that invoke the authority figure of the judge, are unlikely to carry much weight. Among other problems, the brief rehabilitative exchange can’t explain how the juror would reconcile his preconceived views and his duty to follow the law, once instructed.
The key here, as the best jury consultants will tell you, is to get the juror talking instead of leading him through the precise statements you want him to make. A proper rehabilitation requires that the juror be instructed on the law, and that he then indicate whether he understands it and is willing to follow it. That didn’t happen here, so the prosecution now gets to decide whether it wants to retry Scott.
As I read Hodnett v. Stanco Masonry just now, it occurred to me that the case was more important for what was left undecided than for what was in fact decided. The employee got an award for benefits, based on an agreement with his employer, in February 2007. In October 2008, the employer applied for termination of the award, asserting that the employee had found other employment the previous year. By WCC rule, the effect of this application is to cut off benefits immediately upon filing, pending a decision by the commission.
The employee responded to this application by asking the commission to certify its award, pursuant to statute, so it could be docketed as a judgment in the local circuit court. Doing that would allow the employee to execute on the award, just as though it were a garden-variety civil judgment. Certification under the statute requires “satisfactory evidence of noncompliance with” the underlying award.
In the spring of 2009, a deputy commissioner refused to certify the award for enforcement purposes, but she authorized the Clerk to certify it merely as a true copy of a commission record, not for enforcement purposes. The employee didn’t appeal that letter ruling, but the employer did, challenging the certification of the award for any purposes. The full commission ruled that the clerk was permitted to certify an award for authentication purposes only, without issuing the statutory certification that can be docketed in circuit court. The commission specifically declined to address the employee’s challenge to the commission’s rule that permits an employer to cut off comp payments unilaterally, merely by filing an application to terminate.
The Court of Appeals today affirms that ruling, holding that the commission, like any other adjudicative body, has the inherent authority to certify as true copies of its records. The statutory procedure for certification is a separate mechanism, the court decides today, and the commission need not certify an award for those purposes merely because the employee asks it to do so; otherwise, it would surrender its deliberative function in deciding whether the evidence in support of the employee’s request really is “satisfactory.”
Since that’s all the commission had ruled upon, that’s all the CAV takes up. It refuses to adjudicate the issue in the case that, in my mind, is of overwhelming importance: whether the employee’s due process rights are violated by the commission’s rule. The employee argued that once he receives an award, he has a property right in it and can’t be deprived of that award without notice and a hearing – without due process of law. The commission’s rule, he contended, allows an employer to cut off payments unilaterally, merely by an unproven allegation of some cause to terminate benefits.
As a practical matter, this rule may lead to a lot of semi-voluntary settlements, as employees whose benefit payments are cut off will foreseeably be easy pickings for employers who dangle settlement offers at a few cents on the dollar. Given the amount of time it takes for a termination request to wend its way through the hearing process, injured employees who are their families’ sole breadwinners may find it hard to say no to any prospect of money. Expect this one to be litigated further, either in this case or in one with a more-developed record on the due-process issue.
The other Comp case decided today is United Airlines v. Hayes. It contains two rulings, but probably only one is significant enough to get this one published. The employee was injured on the job in 2004; the employer accepted the claim as compensable. The injuries were to the employee’s back, left arm, and left knee, but the most significant one was a traumatic brain injury.
Two years later, while still unable to return to work, the employee was in an auto collision and apparently aggravated some of his previous injuries, though not the brain injury. A year after the accident, and without formally reporting it to the employer, he settled his personal-injury claim arising out of the collision.
The problem with this is that by statute, the employer has a right of subrogation against any third party who (1) causes or (2) aggravates a compensable injury, and by settling, the employee effectively waived that subrogation right. The employer moved to terminate benefits because of that. A deputy commissioner agreed with the employer, but the full commission reversed and rued in favor of the employee.
Today’s ruling focuses on the brain injury, since that’s the primary basis for the disability. The court notes that the medical records don’t indicate any aggravation of the brain injury, so the compromise of, say, a back-injury claim can’t relieve the employer of all duties to provide compensation. The ultimate ruling is that a waiver of these claims isn’t evaluated as a whole; it’s properly evaluated body part by body part. The employer had argued that the prejudice it suffered was enough to disqualify the claimant from all benefits, but the court finds that a restrictive interpretation like that would subvert the remedial purpose of the Comp Act.
After making this key ruling, the court goes on to find that the evidence supported a finding that the collision didn’t aggravate the brain injury. But as noted above, I think the first ruling is the one that gets this one published.