ANALYSIS OF NOVEMBER 4, 2008 CAV OPINIONS[Posted November 6, 2008] Because of some travel plans earlier in the week, I am a couple of days behind in posting commentary on Tuesday’s published opinions out of the Court of Appeals. The court announced three such opinions; one each in the fields of criminal law, domestic relations, and administrative law.
The most irresistible opinion of the day is Fadness v. Fadness, in which the trial judge was unable to make anybody happy. After a ruling that un-hitched the husband and wife from their state of wedded bliss, and divided up their property, the trial court probably closed its file and wished the parties Godspeed on their way to their next destination, which proved to be the Court of Appeals. This proves to be to the chagrin of the three-judge panel assigned to the case.
One of the obligations of parties to an appeal is to designate the contents of the appendix. My readers who only rarely go into appellate combat should keep in mind the difference between the record and the appendix. The record is, generally speaking, just about everything that was placed in to the trial court’s file. The appendix is a selection of documents from the record. Theoretically, the parties are supposed to cull out from the record only those things that relate to the issues that will be argued in the appeal.
On occasion, lawyers get hyper-cautious when designating documents for inclusion in the appendix. In a form of defensive lawyering, they over-designate, including bloody well everything they can think of, so they won’t be accused of leaving out something critical. There are two ironies of this line of thinking. The first is that it’s simply a wrong premise; no one has an appeal dismissed for failure to include something in the appendix. The appellate court can (and often does) look into the record to find things that are material but just weren’t designated. (It’s not a good idea to leave something out that will obviously be of value; but appellate jurists recognize that sometimes surprises develop after the briefs are in, and they won’t hold it against you if a key document is in the record but not in the appendix. They just go look it up.)
The second irony is that over-inclusiveness can earn you judicial wrath, not to mention a monstrous printing bill. I don’t want to think about the size of the printer’s bill in this case, in which the attorneys defensive-lawyered themselves into a 6,000 page appendix. The whole magilla was in 19 volumes; just the table of contents was 66 pages. (True story: I recently handled an appeal in which the entire appendix was smaller than that TOC. I mentioned its brevity to the court during oral argument, appending a “You’re welcome” that drew smiles in return.)
You want another irony? Husband and wife appealed eleven different issues in this case, and the court on Tuesday affirmed on each one of them. That means that, from the litigants’ standpoint, this appeal achieved nothing, except to increase the costs of litigation dramatically. The devil within me is tempted to muse whether the judges decided to find a way to affirm every ruling, just to punish the parties for having inflicted such a record, and such an appeal, upon the court. But the court doesn’t really work like that; and besides, all of the rulings are eminently correct under the applicable standard of review.
Standing alone, I’d venture that exactly zero of the rulings on those eleven issues would merit a published opinion. I’d even conclude that the aggregate weight of them would still consign this case to the unpublished bin. The reason this opinion is published is to let the bar know that burying the court with endless documentation “is as unappreciated as it is ineffective.” Judge Humphreys concludes this opinion by stating that “[a]ppellate courts are not unlit rooms where attorneys may wander blindly about, hoping to stumble upon reversible error.” I heartily commend this short but enjoyable opinion to you, that you may be warned not to sin in this fashion yourself.
Sufficiency-of-the-evidence appeals in criminal cases start out with 2½ strikes against them. Viewing the evidence in a light most favorable to the Commonwealth, and disregarding the defendant’s testimony (if he decides to take the stand) as mere “lying to avoid punishment,” the appellate court must then find that no sensible jury could have concluded that the defendant did it. Predictably, few such challenges succeed.
If you want to see one of the exceptions, check out Tuesday’s ruling in Brannon v. Commonwealth, involving a conviction of leaving the scene of an accident where a person has been injured. That’s a felony, and that’s what Brannon got convicted of after rearending another vehicle in Richmond. The driver of the car in front testified that the force of the collision was enough to knock her sunglasses off her head, and she said that her “teeth smacked together.” She got out of her car and walked back to check on Brannon. She asked if he was okay, but he didn’t answer; he evidently looked at her, then put his truck into reverse, backed off her bumper, and left.
The cad! He didn’t even ask whether his victim had been injured. In fact, she was; she had a sore neck that eventually cost her a week of work. But she had the presence of mind to note Brannon’s license number, and was able to describe that and the truck to a 911 dispatcher from her cell phone. The victim’s rear bumper was dinged, but the damage to the front end of Brannon’s truck was extensive.
You have to admit, tracking down a truck with extensive front-end damage, in a given section of town, when you know the license number, is going to be pretty easy for most law enforcement types. Richmond police charged Brannon with the felony, and the trial court was unsympathetic to his plight; despite the fact that the victim had no visible injuries, the court figured that a reasonable person would have at least asked about her condition. Brannon’s failure to perform even that simple chivalric task rendered him guilty.
But the guilt proves to be short-lived. Even against all that stream of legal presumption I described above, the court rules that the evidence cannot convict Brannon. That’s because this is a specific-knowledge crime; not one involving a duty to inquire. The victim was ambulatory, as evinced by her getting out of her car and walking back to check on Brannon. She had no visible marks and didn’t walk with a limp. There was nothing in her appearance to establish that she was injured. The court also addresses the question of whether the degree of damage to the vehicles could put Brannon on notice that the victim was likely injured; it cites a similar 2007 case in which it held that the statute doesn’t create a duty to conduct what is essentially a medical interview of the victim in order to avoid a felony charge. Besides, the victim’s appearance belied any suggestion of an obvious injury.
The court thus reverses the conviction and dismisses the charge against Brannon. He may not have behaved like a gentleman, but he didn’t behave like a felon, either.