[Posted November 20, 2007] The Court of Appeals releases two published opinions today, one in a criminal case and the other an administrative law ruling from the Board of Dentistry. Judge Humphreys authors both rulings.

Criminal law

Back in 1993, the Court of Appeals handed down two decisions in similar cases that nevertheless came out in seemingly incompatible ways. The cases dealt with the question of whether the admission of improper evidence in a bench trial should result in a reversal, given the long-standing presumption that a trial judge will disregard improper evidence while making her decision. Today, we get another one, and the judges in this case literally come down on both sides of the issue. Today’s opinion is Pierce v. Commonwealth, involving a conviction of possession of marijuana with intent to distribute.

Pierce’s real crime could probably be categorized as lack of discretion. There she was, sitting on her front porch, carefully rolling the tobacco out of a cigar, and then filling it with marijuana. She even lit up, in full view of her neighbors, passersby, the Google Earth cameras, and the police officer who was surveilling her house. The officer and several of his uniformed pals then swooped down and secured the house, inside which they found about eight ounces of the same controlled substance. When the officer confronted Pierce back on the porch, she readily admitted that she had smoked the marijuana, but she vehemently denied any knowledge of more of the substance inside the house.

This officer knew something about Pierce, and told her that her story didn’t ring true. She offered to whip out her trusty stack of bibles to vouch for her, but the officer told her that he knew that she had been convicted of perjury. “Yeah, but that was just in court,” she replied.


At Pierce’s bench trial, the prosecutor got the officer to recite this verbal exchange in direct examination. Pierce objected and asked for a mistrial, but the judge was having none of that; he pointed out that there was no jury present, and noted that the testimony was just “part of the interrogation process as to what was going on.” Pierce didn’t testify in her own defense, and was convicted.

On appeal, the court universally concludes that the testimony was improper, and should have been excluded. Since Pierce didn’t testify, a prior conviction could not be used for impeachment; even if she had taken the stand, there was no excuse for the information’s coming in during the prosecution’s case in chief. But the court then turns to the second issue, the question of whether the admission of the evidence was harmless error. It is here that the court gets to revisit the two 1993 cases, and attempts to reconcile them.

A majority of the panel (Senior Judge Willis joins Judge Humphreys) finds that the admission was harmless. The trial court had independent testimony to establish Pierce’s guilt, and since its articulation of its reasons for the guilty finding didn’t include the perjury conviction, the majority decides that the admission didn’t prejudice Pierce.

The dissent has other ideas (as all dissents must, of course). Judge Elder points out that even without a jury, there is still a presumption that when the court “erroneously and unconditionally admits prejudicial evidence, [the appellate court] cannot presume that the trial judge disregarded the evidence he ruled to have probative value” (citing one of the 1993 cases). Here, the trial judge didn’t use the magic words, “I didn’t consider the perjury conviction in reaching this conclusion,” so there’s nothing to rebut the usual presumption that the admission of inadmissible evidence against the accused in a criminal case is prejudicial. (If he had said something like that, we wouldn’t be having this cyber-conversation right now.)

Judge Elder also spends substantial time showing just how close a case this was. He notes, among other things, that the large cache of marijuana that was found in the house was seized by another person in the house, who grabbed it and ran when he heard the police were outside. (The size of that cache is what supported the charge of possession with intent, instead of the lesser charge of simple possession of the improvised cigar.) There are, he notes, lots of other circumstances here that are consistent with Pierce’s innocence, so the majority, he contends, was too hasty when it brushed aside any suggestion that this improper evidence might have influenced the ultimate disposition below.

I get the clear impression that the full Court of Appeals (and maybe the Supreme Court) will have the opportunity to consider this matter; there is enough of a legal battleground here for further consideration, and I suspect Pierce may get enough votes for en banc rehearing.

Administrative law

In September, the Supreme Court decided CTC v. Target Corp., in which it found that five of the six assignments of error by the Commonwealth Transportation Commissioner had been procedurally defaulted, either in the trial court or on appeal. Today, the Court of Appeals decides a case – and I use the word decides loosely, given what happens here – that rivals that level of procedural devastation. Today’s opinion is Doe v. Virginia Board of Dentistry.

When the Board of Dentistry investigates a dentist for violation of its professional requirements, the administrative process includes two levels of fact-finding before anyone heads for a courthouse. The Board assigns a panel to receive evidence and decide whether disciplinary action is warranted. If the dentist is dissatisfied with the panel’s recommendation, he can demand a de novo formal hearing before the Board. Once that is done, the dentist can appeal to the circuit court, and then on to the Court of Appeals. That’s the four-step process that this case followed.

Doe evidently practices dentistry in the Williamsburg area. (The Board’s regulations permit the use of pseudonyms, not only for the patients, but for the dentists, so the appellant here is John Doe, DDS.) Looking into a claim of dental negligence, a VBD investigator found inadequacies in the dentist’s recordkeeping – little things, like which tooth he had pulled from which patient – and recommended a panel hearing. That resulted in a recommendation for various sanctions. Doe headed to the full Board, which, after the de novo hearing, imposed a reprimand, a fine, and a requirement for continuing education, and arranged for unannounced drop-in visits by investigators to check on the dentist’s records. A trip to circuit court was no help at all – affirmed on all counts – so Doe tried the Court of Appeals, hoping to bend a sympathetic ear.

Instead, he gets Judge Humphreys’s decidedly unsympathetic recitation of the issues he has procedurally defaulted, mostly by failing to raise certain arguments at the hearing before the Board. This opinion offers a very useful lesson for admin law practitioners – you need to do your strategic thinking while you’re preparing for the administrative board hearing; not afterward, when you’re trying to canopener the sanctions in circuit court. Today, the ruthless executioner of Part 5A of the appellate rulebook, Rule 5A:18, does its gruesome task, hacking and slashing away at all of Doe’s arguments save one, a doomed challenge to sufficiency of the evidence that is left to die on the vine at the end of the opinion.

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Preservation of issues for appeal is a vital topic that has received far less attention in appellate literature than it has in appellate judicial opinions. Almost no appellate treatise covers preservation in much depth, beyond saying that it’s essential to do it. In my opinion, that’s because preservation isn’t an appellate skill; it’s a trial skill, and deserves a more prominent place in trial lawyers’ technical proficiency education. Just ask Dr. Doe.