[Posted July 5, 2011] At last! I get a Tuesday that isn’t fully booked with other obligations, so I can catch up on what’s been going on at the Court of Appeals of Virginia. For most folks, the fireworks were set off last night, but there have been plenty of fascinating pyrotechnics out of Richmond in the past couple of weeks.

Let’s start with a case decided two weeks ago – Henderson v. Commonwealth concerns the right of confrontation in an unusual context. This decision produces a vigorous dissent and some fascinating legal issues.

Henderson was sentenced to a prison term for robbery and was released in September 2009. A month later, his probation officer wrote to the court and told the judge that Henderson had been arrested on a fresh robbery charge. The court held a hearing a few months later, at which it learned that the robbery charge had been nolle prossed by the prosecutor. But that didn’t stop the Commonwealth from letting the judge know about the new incident, plus one other one for which no charges had been certified.

This testimony came in through a police officer, who reported to the judge about the crimes; needless to say, Henderson objected to the evidence on the basis that it was hearsay and denied him the right of confrontation. The trial court overruled the objection and eventually reimposed a substantial portion of the prison term that had been suspended.

Those of you who handle a good deal of criminal-law work will recognize that this scenario presents gobs of interesting angles, and I haven’t even told you about all of them yet. For example, does the seminal case of Crawford v. Washington apply to probation-revocation hearings such as this one? Technically, no; it doesn’t. Crawford defines a criminal defendant’s rights when he’s being prosecuted, but it doesn’t apply in the revocation setting. Another one: Assuming that the Crawford doctrine is at least instructive here, was the police officer reciting testimonial evidence when she reported the details of the other crimes to the judge? (The majority here finds that she was, and the dissent assumes it was testimonial without deciding the question. I cannot imagine a good argument why it isn’t.)

But the front-and-center issue in this case is which of two alternate standards applies for deciding whether the hearsay is admissible in this setting. One test gauges mere reliability of the evidence, much as pre-Crawford caselaw (Ohio v. Roberts) provided. The other requires a balancing between the defendant’s interest in confrontation and the prosecution’s showing of good cause why it isn’t necessary.

The opinions in this case – Judge Humphreys, joined by Judge Alston, for the majority while Judge Haley writes the dissent – make for 48 pages of compelling legal reading, and the correct course, I’ll warn you, is not likely to be obvious unless you’re so aligned with one side or the other of the prosecutorial aisle that your views have taken on that kind of slant. Both sides make good points here, and the dissent’s forceful argument occasionally borders on satire. (For one example, see footnote 16 on page 35 of the slip opinion. As appellate lawyers know well, most of the appellate goblins are in the footnotes.)

The result of the appeal is that the reimposition of the suspended portion of the sentence is vacated and the case is remanded for further proceedings if the Commonwealth desires to do so. The majority announces its preference for the balancing test, given the modern current of the law in favor of strict adherence to confrontation rights. It stops short (as the dissent almost gleefully points out) of finding that one test is right and the other is wrong, instead ruling that the evidence would be inadmissible under either test. For now, trial courts need to apply that balancing test in ruling on such objections.

For now. I don’t think I’m going too far out on a limb when I say that I smell en banc rehearing here, or maybe a writ from the Supreme Court, to review this important issue in an evolving field of the law.

We got two rulings last week, both also in the criminal-law field. In one, Burrell v. Commonwealth, we get to see what happens when a suspect is a bit vague in invoking his Miranda rights.

You all know what’s coming here, right? I just gave it away in the lead-in. The gendarmes wanted to talk to Burrell about a certain suspicious cache of white powdery substance that they found in his house, pursuant to a search warrant. Burrell obviously hasn’t bookmarked Virginia Appellate News & Analysis as one of his favorites, because he agreed to talk with the nice officers after having been “Mirandized.” But he had at least half his wits about him; when the officer asked about the powdery substance, Burrell replied that there were certain questions he didn’t want to answer without talking to a lawyer.

The officer, perhaps perplexed at this halfhearted reference to a suspect’s rights, sought to clarify it: “Are you saying you don’t want to talk to me at all without a lawyer?” That’s a perfectly fair clarifying question, but Burrell stuck with his previous half-decision, saying that only certain questions were off-limits. He never did get around to describing the parameters of acceptable questioning before he made some truly inculpatory statements, at which point he obtained the rights of a full-fledged arrestee.

At the ensuing suppression hearing, the issue became whether Burrell’s invocation of his Miranda rights (technically, both the right to remain silent and the right to have counsel present, though only the latter right is at issue here) was sufficiently unambiguous and unequivocal. If the answer is no, then subsequently obtained evidence is admissible over a defense objection. I was a bit surprised to find, upon reading this opinion, the wealth of caselaw interpreting just this situation, where a suspect attempts to invoke his rights for some questions but not all. The caselaw holds that a suspect can do that, but that he’s bound by the limits he imposes. The CAV panel here cites those cases with approval here, and they’re the primary reason why this case is published, in my opinion.

The panel concludes that Burrell’s ambivalent statement isn’t enough to shield him from his own inculpatory statement, so the conviction is affirmed. The court notes that the suspect’s subjective intent is irrelevant to the analysis; the question is an objective one, of whether a reasonable police officer would have understood the contours of the limited invocation. The court finds (quite correctly, in my view) that Burrell’s statements were too vague to constitute an unambiguous refusal to answer any specific question without a lawyer.

The other case decided last week is the biggest of them all, in at least some respects. It’s not because of an exquisite battle of words between the majority and the dissent; this panel decision is unanimous. It isn’t because we’re importing wholesale some new doctrine from elsewhere. It isn’t even because we get a surprise result; I could have told you how this one would come out before I finished reading the introductory paragraph. But Taylor v. Commonwealth is as important for what it almost – almost! – says, as it is for the specific holding.

Every lawyer who tries criminal cases to juries knows of a concept like this: In a distant land, a legislature, determined to be tough on crime, decides to up the ante on scofflaws by classifying jaywalking as a Class 2 felony (that’s 20 to life, for you civil-law landlubbers). A defendant is caught red-handed, jaywalking in front of an audience comprising a convention of nuns and at least one on-duty police officer; a security video catches him in the act, and he even looks up into the camera for several seconds, making identification unmistakable. Fifty-seven of the nuns testify at trial, unambiguously, that the defendant Did It. There’s really no defense, so the forlorn defendant, with his weeping wife and their babe-in-arms watching from the gallery, can only wait while the jury decides his fate.

Back in the jury room, the jurors are unanimously appalled at the prospect of sending a family guy up to The Big House for a long stretch of free room and board, particularly for something that they’ve all done on numerous occasions. The instructions say that if they find the defendant guilty, they are to recommend a term of imprisonment, but no one wants to give the guy more than a slap on the wrist, at most. Then someone points out that they only have to send him to prison “IF” they find him guilty. They have another option.

The jury then files back into the courtroom and the clerk reads the not-guilty verdict. The scofflaw is elated; the prosecutor wonders what went wrong; the judge shakes his head and gets ready to call the next case (capital littering).

There was absolutely no factual basis upon which to acquit the defendant; what happened here is an extreme example of what’s widely known as jury nullification, where a jury finds a law oppressive and uses the only tool it possesses to refuse to enforce it. In that situation, there’s nothing for the prosecution to do; every defendant is entitled to have his fate decided by a jury of his peers, and no one can be convicted in a criminal case based on “summary judgment.”

But what about bench trials?

The scene shifts to Chesapeake, the town where I grew up. Taylor walks into a department store and selects some merchandise worth more than $200. She then heads for her car, managing to bypass the cashier on her way out of the store. That’s grand larceny, of course, and a judge so found at her bench trial in 2009. At the conclusion of the trial, Taylor’s lawyer asks the judge if he’ll reduce the charge to a misdemeanor. This would appear to be a tad late, since the judge has just found her guilty of the felony; but the judge says in response, “I’ll hear whatever evidence you have at sentencing.”

That counts as a Maybe, which as my now-teenaged daughter figured out by the time she was six, is not No; so Taylor’s request for succor is still alive. At sentencing, the defense lawyer urges leniency because Taylor has helped the police nab some Bad Guys. The prosecutor objected (presumably they weren’t his Bad Guys), and the judge ruled that, having found the defendant guilty of a felony, he lacked the authority to reduce the charge to a misdemeanor. The defense argued that he had that authority under the Virginia Constitution and inherently under the common law, but the judge ruled the question of which charge to bring was up to the prosecutor, not the court.

If any of this sounds vaguely familiar, it’s because this is a parallel argument to the most famous Virginia criminal-law decision of 2011 (so far): Hernandez v. Commonwealth. There, the question was whether trial courts, having found the evidence to be sufficient to convict, have the authority to defer a finding of guilt or innocence for a period of time, during which the defendant can presumably sandpaper his life to make it more palatable to the judge who will decide his ultimate fate. The Court of Appeals had ruled previously that no such authority existed. It reasoned that deferred findings were provided for in certain limited situations, each enumerated by statute, and that that enumeration would be wholly unnecessary if there were an inherent right to defer.

Earlier this year, the Supreme Court disagreed, in a surprisingly short opinion. Hernandez held that trial courts have the inherent right to defer, but in doing so, the court never attempted to address the enumeration-by-statute argument. The court presumably based its decision on the English common law before 1607 (which would trump the legislative enumeration), but no citation was provided for that premise.

The author of Taylor, Judge Kelsey, is well aware of Hernandez; indeed, he cites it late in this opinion as authority for his conclusion that once the court renders (that is, announces) a conviction, it no longer has the power to defer or rescind it, even if the judge thinks that the prescribed sentence is too tough for this defendant. In Judge Kelsey’s view, supported by a lot of caselaw from elsewhere, the court has to sentence the defendant according to what the evidence showed and the statutes provide. The defendant’s remedy, if a particular statute works too harsh a hardship upon him, is to seek executive clemency.

This kind of analysis is what Hernandez left me still hungry for when it arrived in January. I was dismayed back then to find almost a cursory, even conclusory, recitation of what Virginia law is. Now, I haven’t done the research on inherent authority or on old English common law, so I don’t know whether there really is analytical support for the Hernandez court’s conclusion. For Taylor, though, this unanimous opinion holds that she’s out of luck, and is stuck with a felony conviction.

I mentioned above that this case was significant for what it almost says. I see this ruling as a clear shot across the Hernandez bow. Judge Kelsey, free to address an analytically distinct legal issue, argues forcefully that there is no common-law right to withdraw a finding of guilt, leaving behind the pregnant question of whether there’s really such support for a right to defer findings. I do see some difference between the two issues, but without the old English legal background, I don’t know how firm is the support of the Hernandez doctrine. If it turns out that the right to do so isn’t inherent in the courts, then it must derive from a legislative grant of authority. And I don’t know of a plausible refutation to the CAV’s previous analysis on that basis.

That brings us to today, when the court issues two published opinions, also in the field of criminal law. The first involves a venue problem: Spiker v. Commonwealth answers the question of where a defendant can be tried for a cyber-crime when he’s in one jurisdiction and the “victim” is in another.

I set off the word victim in the previous sentence because the defendant, Spiker, got scammed. He’s a 55-year-old guy from Henrico who was trolling the Internet for young girls when he happened to meet “BeccaBoo1209,” a 13-year-old girl from Louisa County. They struck up a conversation that concluded with a deal to meet in Gum Springs the next day.

You know what’s next: “BeccaBoo” was actually Detective Patrick Siewart, and when Spiker showed up at the appointed rendezvous point . . . well, in computer-ese, FAIL. Spiker even helpfully admitted that he was the person who had chatted with the would-be teenager.

The only issue in this appeal is whether venue was proper in Louisa. Spiker contended that the crime of which he was accused was complete upon transmission, and when he hit “Send,” that event took place in Henrico. (Perhaps he foresaw what was coming, because the Louisa judge threw the book at him, sentencing him to twenty years on each of five charges, for a total of 100 years.) The trial judge disagreed, and today a panel of the Court of Appeals affirms, holding that this statute proscribes making contact with a victim. That can and usually does involve two separate components – a “send” and a “receive” – and the court holds that venue can be proper in either location.

This is consistent with what you’d expect by applying a similar analysis to other crimes. For example, if a defendant standing in County A fired a shot that traveled across the county line into County B, striking a victim there, the situs of the injury would be a permissible venue, because a part of the offense (say, malicious wounding) occurred there. In affirming, the court cites some caselaw on which the ink is barely dry – Kelso v. Commonwealth, decided by the Supreme Court of Virginia in the June session.

The other decision released today is Barson v. Commonwealth, an en banc opinion dealing with a conviction for harassment by computer. As these things go, Barson got off pretty light – a $250 fine for a Class 1 misdemeanor (maximum punishment 1 year in jail and/or a $2,500 fine). If you think that fine-only cases are too small for the Court of Appeals to take notice, think again; in this instance, the entire court, not just a panel, wades in.

Barson is a doctor who lived in Texas for a time while completing his training for a subspecialty; his wife stayed here in Virginia Beach with the couple’s children. Enraged by what he saw online about his wife (he got reports that she was – ahem – selling her body in his absence), he launched a series of e-mails to his wife and her friends and family. The e-mails were graphic, in a way that we don’t do here at VANA; they were at least R-rated, while this is strictly a G website (okay; some of the puns are PG, for those who don’t like puns). Accordingly, if you want to see what he said, click on the hyperlink above and find out for yourself.

Barson sent hundreds of these messages, until his wife went to a magistrate and got a criminal warrant issued. Barson was convicted in GDC and in circuit, and appealed on to the Court of Appeals; a divided panel of that court reversed his conviction late last year. But the Commonwealth got en banc rehearing, which pays off today in a solid affirmance.

The primary issue here is exactly what’s proscribed in the statute. Once upon a time, its statutory ancestor prohibited the use of “vulgar, profane, threatening or indecent language.” That language was held to be constitutionally infirm back in 1975, so the legislature amended it to add obscene to the list. Obscenity isn’t protected speech, although profanity can be (think George Carlin here), so this was seen as a suitable approach for years.

In 2004, the Court of Appeals decided Allman v. Commonwealth, in which the court grafted upon this statute the definition of the word from another part of Title 18.2; that definition, in turn, employed the definition that the Supreme Court of the United States had used in Miller v. California in 1973, involving pornography. Now, in order to get any conviction based on obscenity, you have to show something involving a prurient interest in sex. Allman, dissatisfied with the services of his lawyer, had left a detailed voice mail for the barrister that described him in unflattering terms normally associated with either a feline or an effeminate, spineless man. (Sorry; still G-rated around here.) The court held in that case that the comments, offensive as they were, did not appeal to the prurient interest (they were mere insults), so the conviction was reversed.

That brings us to Barson’s appeal, in which his unflattering description really didn’t meet the prurient-interest test. On that basis, the three-judge panel had reversed the conviction last year. But today, Judge Humphreys, who was the panel dissenter, scores an impressive win, turning a 2-1 reversal into an 8-1 affirmance. He manages to persuade almost every other judge who participated in the en banc rehearing not merely to vote to reverse, but to overturn the Allman doctrine – something he hadn’t even urged in his panel dissent.

Two points on the math of the above report: First, while two judges voted to reverse at the panel stage, only one votes that way en banc. That’s because one of the panel majority was Senior Judge Coleman, who didn’t take part in today’s decision. Second, we have only nine votes because Judges Frank and Haley sat this one out. I don’t know why, but even if they had joined the minority (and trust me; they probably wouldn’t have), it would not affect the outcome.