A LONG-OVERDUE RETURN TO THE COURT OF APPEALS[Posted May 20, 2014] It’s been much too long since I checked in at the Court of Appeals of Virginia. Here’s a look at some of today’s opinions (hint: today was not a good day to be a criminal appellant).
There’s an all-too-familiar preservation trap in Neff v. Commonwealth. Neff was convicted below of public intoxication and of assaulting a police officer during the intox arrest. He appealed the assault charge only, leaving the public-intox charge on the table. But he made an unfortunate choice of exactly which issue to appeal: He argued in the CAV that the police officer didn’t have probable cause to arrest him for being intoxicated, so the assault conviction had to be thrown out.
There’s enough in the procedural posture, recited in the single paragraph above, to mandate an affirmance. Specifically, he didn’tappeal his conviction for being intoxicated in public. That means that he was guilty of that charge, beyond a reasonable doubt. Guilt beyond a reasonable doubt is well beyond the low-level burden to show probable cause to arrest, so Neff’s tactical decision costs him a swift affirmance.
What’s true in criminal cases applies in civil contexts, too: If you don’t appeal one issue, that can have adverse carry-over effects on the issue that you do decide to pursue. The SCV‘s recent decision in Ferguson v. Stokes illustrates this trap nicely (unless you’re the one who gets trapped, of course, in which case it’s not very nice at all).
There’s a boundary between larceny by trick and robbery; that boundary gets better defined in Fagan v. Commonwealth. Fagan and an accomplice managed to scam some victims by pretending to be police officers, pulling over a car, and “inventorying” the suspects’ personal property (things like a cell phone) before driving off with them.
The question is whether their doing that employed threats of force or intimidation. I’m guessing that you can see exactly how this one comes out: The court today affirms the robbery conviction, finding that the defendant did more than merely impersonate an officer. When he approached the victims’ car, he tapped on the window with a sheafed knife, something that today’s court describes as “an unmistakable gesture of intimidation.” (I agree.) The court reviews decisions from other states that have concluded that where a defendant impersonates a police officer and there’s at least some element of overt or implicit threat, and that doctrine is adopted in Virginia as of today.
The defendant in Boone v. Commonwealth doesn’t seem to be able to appreciate the nuances in the phrase, “You can’t drive anymore.” Okay; there are no nuances. He stopped just before approaching a checkpoint – there’s a clear sign to a vigilant cop for you – and was found to have been adjudicated a habitual offender. Twice. What’s more, he had six prior convictions of driving after having been adjudicated HO, so he was no stranger to traffic court.
There are two issues in today’s appeal. The first relates to the admission into evidence of Boone’s DMV transcript. He contended that the admission of this document violated the Confrontation Clause. But a unanimous panel of the CAV concludes that the document wasn’t testimonial in nature.
In order to make that decision, the court reaches to the Melendez-Diazruling from the Big Supremes in 2009; that opinion contains explanatory language that puts this abstract squarely on the admissible side of the ledger. That’s because testimonial documents – the ones addressed byCrawford v. Washington and others – are prepared as a substitute for litigation testimony. Non-testimonial documents, which are exempted from Crawford’s holding, are created for a non-litigation purpose, and that’s true of a DMV abstract.
The remainder of the decision is an entirely unsurprising rejection of the argument that Boone somehow had never been notified of his HO status. The author of today’s majority, Judge Humphreys, stops just short of “Oh, gimme a break,” but that was probably on his mind at least once or twice while writing the opinion.