ANALYSIS OF SEPTEMBER 15, 2006 SUPREME COURT OPINIONS
The Supreme Court hands down nineteen published opinions today. A plurality of those are in the criminal field, along with related matters; there are also four civil procedure decisions.
In my view, the major decision of the day is Hoffman Family, LLC v. City of Alexandria, in which the court upholds Alexandria’s decision to condemn land for a drainage culvert. This case will inevitably draw comparisons to Kelo v. City of New London (and indeed, I have more or less done just that). You’ll find that in the eminent domain section, immediately below.
Given the number of cases, I will publish discussion of the opinions over the course of the day, broken down by subject matter.
There is but one condemnation case decided today, and it’s a whopper: Hoffman Family, LLC v. City of Alexandria involves issues every bit as controversial as last year’s front-page decision by the US Supreme Court, Kelo v. City of New London. The issues are slightly different, and the foundational law is distinct, but both cases have their share of hot-button issues. In my view, this is the case that will occupy the interest of the major news media in tomorrow’s papers.
The City of Alexandria condemned part of a tract near the Eisenhower Avenue Metro station, so it could build a culvert as part of the city’s storm sewer system. So far, there’s nothing all that controversial about this; a drainage facility is unquestionably a public use of land. But there was already a culvert in place at the site. What’s more, it was even bigger, in terms of its capacity, than the one the city planned to build. What’s even more, the existing one was in good repair and there was no reason whatsoever to move it. No reason, that is, until a good corporate citizen announced plans to build a high-rise building, right on top of the existing culvert.
By now, some of you are thinking back to Kelo, where the city condemned private property for the express purpose of handing it over to a private developer, with the predictable public purpose of economic development, thus enhancing the tax base. This case isn’t quite like Kelo, in that the land to be taken would remain in public hands. But that didn’t stop the landowner from challenging the city’s right to condemn it.
At a preliminary hearing on the landowner’s challenge to the legality of the take, the city readily admitted that there was no need to move the existing culvert, and that the impetus for doing so was the developer’s plan to build the high-rise. It admitted that the new culvert would actually have a smaller capacity for drainage. The landowner even proved that the developer could have built the culvert on its own property (although that would have diminished the value of the project by $2 million). Still, through all this, the trial court ruled in favor of the city.
The appeal produces rare disagreement among the justices; this is only one of three non-unanimous opinions handed down today. The majority, authored by Justice Keenan, focuses on the public use aspect of takings law, and finds that once the condemnor establishes that the use of the property will be public, that pretty much ends the inquiry. The majority affirms, after reaching the unsurprising conclusion that the use of this property for a storm sewer culvert is plainly public. They hold that the city’s determination of necessity for the take is not properly reviewable (absent evidence of fraud, or of arbitrary or capricious action, neither of which were alleged here) by the courts. The unstated reason for that deference is the separation of powers doctrine; courts decide what governments may do, while legislatures decide what government should do.
The chief justice, joined by Justice Koontz, offers a strong, and strongly worded, dissent. He chides the majority for viewing the circumstances of the case with blinders. The unmistakable purpose of this take was to benefit a private developer; he finds the public benefit merely incidental in view of the already existing and superior drainage facility that is to be replaced. “[T]he restrictive nature of the majority’s test,” he writes, “renders judicial review meaningless.”
Throughout the entire process, there is only one mention of Kelo, and that is in a footnote that closes the majority opinion. That note essentially states, “This case isn’t Kelo,” for the reasons I noted above. And it’s probably a good thing, given the enormous public outcry over that decision last year. But this ruling, which may be Kelo-Lite, will generate its own degree of controversy in the Commonwealth, among those who fight the battles of private property and public ventures.
The court hands down two decisions today interpreting the right of plaintiffs to nonsuit their cases. The first of these is Bio-Medical Applications of Virginia v. Coston, a medical malpractice action where the defendant established in discovery that plaintiff had no witness able to testify as to the standard of care. In a hearing on the ensuing motion for summary judgment, the parties argued their respective positions, after which the trial judge acknowledged that the matter was in his lap. He noted that it was a medical malpractice case, and that plaintiff had to have a medical expert. He then asked, “With that said, does either counsel have anything further to say, or to request, or to move the court?”
The opinion is silent on whether the judge was winking at plaintiff’s lawyer, or perhaps holding up a sign that said, “You’d better nonsuit now, while you still can.” The lawyer got the message, and immediately asked for a nonsuit. Defendant objected that it was too late for that, but the trial judge granted the nonsuit.
Today, the Supreme Court reverses; it was, indeed, too late. The court notes that the nonsuit statute provides three distinct “deadlines” for requesting a nonsuit. The first of those is before a motion to strike the evidence is granted at trial. In that case, a plaintiff can nonsuit at any time before the judge pronounces the magic word, “Granted.” He can (and often must) interrupt the judge midsentence to get his request in under the wire. (As a result of this, many trial judges have taken to announcing their ruling first, and then giving their rationale.) The second deadline is before the jury retires to deliberate. Obviously, neither of those occurred here, as this ruling came on a summary judgement motion.
It’s the third deadline that resolves this appeal – “before the action has been submitted to the court for decision.” That language applies to submitting the entire case to the court after a bench trial, and (as here) the submission of a case-dispositive motion for decision. The court holds today that that happened here when the court received all of the argument on the motion; its later inquiry was a “laudably courteous” offer to permit the parties to note any objections for the record. Since the case was submitted, the nonsuit request came too late.
A nonsuit issue of a different variety arises in Janvier v. Arminio, another med mal case that took a loooooooong time to reach fruition. Plaintiff filed suit against a doctor, but did not request service for more than one year. Knowing he could no longer get judgment, he wisely nonsuited and refiled within six months. But again, he didn’t try to serve the doctor for more than a year. This time, his lawyer appeared before a judge to seek a second nonsuit, which is discretionary with the court. He didn’t notify the doctor of his intent to request that relief, and the judge asked the lawyer whether that was necessary. The lawyer replied that nothing in the nonsuit statute required that. The judge (presumably) shrugged and signed the order.
Plaintiff refiled again, within the next six months, and that’s when the tempest began. The doctor filed a plea in bar, since the claimed negligence had occurred five years before he got served. That’s when his lawyer found out about the two nonsuits. The doctor moved the court to rule that the second nonsuit order was void ab initio because of the lack of notice; he argued that he had a right to resist that relief, and was deprived of that by the judge’s ex parte actions. The trial court agreed; it vacated the second nonsuit order, then dismissed the second suit for failure to serve within one year, and dismissed the third suit as well. This appeal followed.
In case you think all that sounds convoluted, wait’ll you read the opinion. It takes the court every bit of ten pages to set for the facts and the procedural posture of the case, before it even begins the legal analysis.
The dispositive question here is whether notice is required for a second nonsuit request. While the doctor makes a persuasive equitable argument, the court finds today that the language of the statute does not require it, so the court isn’t free to insert such a notice requirement. That means the order isn’t void ab initio, and it therefore can’t be vacated more than 21 days after its entry. The Supreme Court reverses and remands, but not before making a gentle suggestion that perhaps the General Assembly ought to address this issue.
Dreher v. Budget Rent-A-Car System involves choice of law provisions involving Virginia and New York. Under New York law, the owner of a car is vicariously liable for torts committed by a driver who uses it with the owner’s express or implied consent. That’s one thing if you’re borrowing Aunt Sadie’s Buick, but this doctrine has enormous consequences for car rental companies. As every Virginia practitioner knows, this is not the law in Virginia; here, such liability is only available in sharply limited circumstances (negligent entrustment and employment contexts, to name two).
Some time ago, someone named Saunderson rented a car in New York and drove south. While in Virginia, he struck another vehicle, containing the Drehers. They sued not just Saunderson, but the rental company, citing the New York law as support. The trial court, applying Virginia’s choice of law provisions, found that the basis of the company’s potential liability was in tort. It therefore applied the lex loci delicti (the law of the place where the wrong occurred), and dismissed the company, since Virginia substantive law doesn’t help the Drehers.
The Supreme Court reverses, after a minute examination of the choice of law question. The dispositive issue is that the source of the company’s potential liability is actually in contract, not in tort; Budget would not have been a party but for its rental agreement. And since contract questions are decided on the law of the place where the contract is made, that means that New York law controls, and the Drehers get their deep pocket back.
Now that we’ve covered that, you should note that this decision was obsolete even before it was handed down. In 2005, Congress passed a law that abrogates state statutes that made owners, such as Budget here, liable for the misdeeds of its renters. This case was filed before the effective date of the new statute (49 USC 30106). Thanks to Billy Breit of Joynes & Gaides for this tip.
The final civil procedure case is a hybrid of tort claims and administrative law issues. In The Country Vintner v. Louis Latour, Inc., a wine wholesaler sued a winery, alleging statutory and common-law conspiracy claims. The distributor had filed similar administrative claims with the ABC Board, which regulates the industry, and those claims were still pending when the civil suit was filed. The trial court agreed with the winery that the Board, not the court, had jurisdiction over claims for violations of the Wine Franchise Act; it dismissed the lawsuit.
On appeal, the Supreme Court faces two questions. One is whether trial courts have jurisdiction over a claim for conspiracy to violate the Act. The second is whether the little-used doctrine of primary jurisdiction should be applied to stay or dismiss the civil suit, pending the administrative proceedings.
The court finds today that a claim that a party has violated the Act is clearly within the exclusive purview of the Board, so circuit courts would not have jurisdiction to entertain such suits. But this was a suit for conspiracy to violate the Act. That’s different, the court finds. This is admittedly a close call, and the casual observer may find this ruling troublesome. In my opinion, such skepticism would be wrong; I believe this is the correct ruling, given the sharply circumscribed powers of the courts in interpreting statutes. As the court notes, new statutes only repeal the common law to the extent the two are necessarily irreconcilable. If there is any way to harmonize the two, the court must do that. Here, there is abundant caselaw that conspiracy to commit an act is a distinct and different matter than the commission of that act. This is the only result that the court could reach within the context of these facts.
So the wholesaler wins Round 1, as the Supreme Court finds that the circuit court erroneously dismissed the civil suit with prejudice. Round 2, however, goes to the winery. Using the doctrine of primary jurisdiction, it holds that the administrative agency, which has superior expertise in enforcing the Act, should get the first crack at deciding the common factual issues in the case. Normally, that would require the trial court to choose between staying proceedings and dismissing the case without prejudice. But here, the court takes the remarkable step of suggesting to the trial court that it stay the litigation, so the plaintiff will not have a potentially impossible limitations issue if the Board delays a ruling.
The court takes up the sudden emergency doctrine in Herr v. Wheeler, a personal injury case involving a collision during a heavy rainstorm. Wheeler, driving well under the speed limit, lost control of her vehicle when she hit a puddle of water and started hydroplaning. Herr was a passenger in the other vehicle and sustained injuries in the collision.
In Herr’s suit for damages, the trial court gave a sudden emergency instruction, over Herr’s objection, and the jury evidently bit for it; it returned a defense verdict. On appeal, Herr challenges the giving of the instruction. The Supreme Court today reverses (have you noticed yet that almost all of the cases I have digested so far have been reversed, at least in part?), finding that the existence of water on a roadway, and therefore the danger of hydroplaning, is a matter that the defendant should have anticipated.
Sudden emergency instructions are, as the opinion notes, “rarely appropriate.” Today’s opinion establishes that the circumstances have to be genuinely remarkable to warrant such an instruction; plain old rainfall almost certainly won’t do.
Arlington County’s zoning ordinance contains a special classification for Commercial Redevelopment (designated “C-R”) in certain circumstances. That classification permits certain mixed uses, which is a very valuable asset in and of itself. In order to be rezoned for this special purpose, the land must be previously zoned General Commercial (“C-3”).
A local church owned a tract that existed within two different zoning classifications; part of it was C-3, and the rest of it was zoned residential (“R-5”). It sought to rezone the entire parcel to C-R, with ambitious plans to rebuild the church and construct affordable housing units onsite. Given its proximity to public transport (it’s very close to a Metro station), this seemed to the County Fathers like a good idea; they approved the church’s request.
Not everyone agreed, which is generally a good thing. (If everyone got along perfectly, there would be no lawyers, and this web site would be of – ahem! – limited utility.) Several citizens in the vicinity banded together and filed suit, claiming that the rezoning was improper – or in the language of land use, arbitrary and capricious. It seems they had a point.
The neighbors argued to the trial court that not all of the land had been zoned C-3 before the rezoning. You can’t rezone from R-5 to C-R. The county studied its own ordinance and replied that the language that ostensibly requires that the land first be C-3 appears in the preamble of the ordinance, and is therefore not an actual part of the mandatory provisions of the statute. (Yes, there really is good legal authority for this rule of statutory interpretation.) The trial judge agreed and denied the neighbors’ suit, granting summary judgment to the county.
Today, in Renkey v. Arlington County, the Supreme Court reverses, agreeing with the neighbors that, in this ordinance, the language is mandatory. It remands for further proceedings.
But it’s not fair of me to end the discussion of this case here; you’ll want to know what really will happen on remand. This is my best effort at foresight: The county will soon entertain a motion to rezone the R-5 land to C-3. After some discussion, that will be speedily approved. At the next board of supervisors meeting, or perhaps the one after that, a new request will be approved, rezoning the whole parcel to C-R. The Supreme Court rules against the county, but gives it a perfect roadmap, showing how to do what it really wants to do.
There is one case decided today under the Freedom of Information Act, and like the majority of those decisions, the news is bad for the public entity. White Dog Publishing v. Culpeper County deals with a challenge by several newspapers to a decision of the Culpeper Board of Supervisors to go into executive session during an October 2004 meeting. The purpose of the closed meeting was to discuss a contract that the School Board (not the County Board) had previously entered into for the design, engineering, and construction of a new high school in the county.
As you no doubt know, FOIA requires that public business generally be conducted in the open; public bodies have few opportunities to go behind closed doors, and they have to follow a number of specific procedures in order to invoke that right. In this instance, the Board wanted to engage in some quiet discussions with the architect, preparatory to further discussions with the School Board over how, exactly, to provide for the county’s new high school.
In moving into closed session, the Board cited an exemption that protects certain discussions that, if held in the open, might “adversely affect the bargaining position or negotiating strategy of the public body.” This, you have to admit, is fair; if pubic entities had to meet in the open and decide in advance how high they’d be willing to go in contract negotiations, it would put them at a tremendous bargaining disadvantage.
But here, there was already a contract with the vendor; the Board’s purpose was to consolidate its negotiating position against the School Board. That won’t work, the Supreme Court rules. The purpose of this exemption is to protect public entities during the procurement process, not afterward. It thus reverses a trial court’s ruling that had found the closed meeting to be proper.
And as with all FOIA victories by the claimant, there’s more: Attorney’s fees. The newspapers had prevailed on one issue below, but the trial judge had found “special circumstances” that rendered an award of fees unjust. Among those circumstances were the advice of counsel; the fact that the Board originally prevailed in general district court; and the fact that they’d been closing meetings like this for four years, and no one had complained. None of those are enough, the court rules, as it remands for entry of what will now be full attorney’s fee relief for the newspapers.
The lesson here is simple: If you’re a public body, FOIA is no place to take chances. The laws are stacked against you; your exemptions are doled out with tweezers; and if you lose, you have to pay your lawyer AND the one who sued you. Of course, this is both the price we pay for, and the benefit of, living in a free and open society.
Close corporations, of both the traditional and the limited liability company varieties, get considerable attention in today’s freshly minted caselaw. Barber v. VistaRMS, Inc. rises and falls on the issue of the standing of a former employee to demand various relief available to shareholders.
Vistarms was originally formed with just three shareholders, and it was clearly intended by them that the company should remain closely held. They later added shareholders from the ranks of their employees, including Barber, but on terms that the employees’ stock ownership rights would end whenever they left the company for any reason at all.
Barber’s job abruptly ended one day, and the company presented him with a separation agreement, in which he and the company exchanged releases of all rights against one another. But the company never demanded return of his stock certificates. When the company reached an agreement to sell out to a third party purchaser, Barber spoke up, asking for an accounting of the company, so he could get his proportion of the purchase price in exchange for his stock.
If you said to yourself, “Hey, wait a minute,” as you read that, you’re on the right track. The issue that decides this case, in the trial court and today on appeal, is the unmistakable language in the agreements, which provides that as soon as he’s no longer and employee, he’s no longer a stockholder. Barber makes several technical arguments as to why he should still be regarded as a shareholder (including, prominently, his continued possession of the certificates), but the court finds that none of them can overcome the clear, specific language in the agreements. His execution of the separation agreement probably didn’t help his cause, either.
Gowin v. Granite Depot, LLC
involves a small company in which the founder promised a piece of the action to a new hire. He gave him that piece, too, amounting to 20% of the company. The new hire had to sign a promissory note for $12,500, representing his capital contribution, but the boss told him not to worry about it, because the company would take care of it, presumably out of profits.
You already know that trouble arose, and after the inevitable split, the remaining member, who was the LLC’s manager, allegedly decided that his 80% share had to give him the right to manage things the way he wanted. He sat down one day and amended the company’s articles to permit the expulsion of a member, by majority vote, if he fails to make any required contribution. Before the ink on that one was dry, he signed another document; this one was the consent of the members to eliminate the 20% holder from the company. This litigation ensued.
The 20% holder lost in the trial court, as the judge found unpersuasive his waiver argument. Just because The Boss had told him not to worry about actually paying the note, wasn’t enough to bind the company, since the company had done nothing to ratify that representation. Here, the 20% holder argued unsuccessfully that the LLC ignored corporate formalities, to the point that The Boss’s oral representation should be taken as the formal act of the LLC. The Supreme Court affirms this holding. But it reverses on one other ruling, and gives the 20% holder a victory here.
The problem is the note. It contained specific terms for payment on a monthly basis, beginning on February 1, 2000, and continuing for 24 months. The 20% holder admittedly never made a payment, so he’s in default under the note, right? Wrong. (And this is the really interesting part of the opinion.) The note wasn’t even signed until November 9, 2000. So performance on the designated schedule was wholly impossible. And that, according to the court today, makes it a demand note.
That turns out to be a very big deal in this case, because the LLC had never demanded payment of the note. You can’t be in default on a demand note if payment is never demanded, the court points out, so it was wrong to throw the 20% holder out of the company for his failure to pay that note. The Supreme Court thus reverses and remands the case, where presumably the 20% holder will get to continue to participate in the company’s affairs, albeit from a safe distance.
The final corporations case is Today Homes, Inc. v. Williams, implicating the fiduciary duties of corporate officers toward the company. Today Homes developed property and built houses in Tidewater. If you know anything about the real estate market down here, you know that developable land is getting scarce, given certain geographic and political limitations. As such, the company was always on the lookout for land.
The company employed two vice presidents named Williams and Woodhouse in the early part of this decade; those two worked closely together and were evidently good friends. I draw this last inference because on the day the company fired Williams in March 2003, Woodhouse drew up a letter of resignation. He kept it in his pocket for time, though, and continued his association with the company. When he did disclose his intention to leave, the company urged him to stay on until another person could be found to take his place. He agreed, and didn’t leave until June 1.
In the interim, Williams and Woodhouse started up their own land development company, and obtained title to 77 lots they had heard about early in the year, when both of them still worked for Today Homes. The origin of this lawsuit is the fact that neither one had told Today Homes about the availability of the lots during the time of employment. They wound up making almost $4.5 million in profit from the deal.
Today Homes didn’t sit idly by; following generations of American tradition, it went and got itself a lawyer and sued, for breach of fiduciary duty and conspiracy. With this many zeroes, plus the potential for treble damages, an enormous amount was at stake when the trial began.
The nonjury trial lasted but one day, at the close of which the judge ruled that Today Homes had failed to meet its burden of proof to demonstrate a breach of fiduciary duty. The appeal focuses on one overriding issue: Whether the burden of proof shifts to the defendants in such a case. Today, the Supreme Court rules that it does.
In any case involving a fiduciary duty, the initial burden is on the plaintiff to make out a prima facie case that the fiduciary has profited from the subject of the trust. Once that happens, the burden shifts to the fiduciary to show why the act was not a breach of duty. The court requires the fiduciary “to show that the transaction has been fair.” The trial court erroneously placed the burden on the plaintiff to show that the actions were in breach, so the case is remanded for proceedings under the correct burden of proof.
The court does let Williams off the hook, so to speak, by noting that she had no continuing fiduciary duty to the company after it fired her. It also finds that her incidental knowledge of the availability of the land during her tenure there doesn’t rise to the level of a breach of duty. Woodhouse’s willingness to stay on, in part to help the company, may end up costing him when this tale is all told.
There are no fewer than seven opinions today in the field of criminal law and related areas. The court reverses one murder conviction, in Hodges v. Commonwealth. In that case, the Commonwealth adduced several statements made by the decedent in the days before the murder. The justification for these statements was that they related to the state of mind of the decedent on a few key issues in the trial. In most instances, the court finds nothing wrong with the admission of the evidence, but in one instance, it finds error.
The Commonwealth’s theory of the case is that Hodges killed the victim because he believed she was about to testify against him in a drug case. The prosecution succeeded in introducing the victim’s written statement to the police in which she implicated Hodges. The Supreme Court notes that this evidence was not offered to prove the truth of the matter asserted, so it wasn’t hearsay. (By the way, if you have any doubt about that, remember that this was a trial for murder. If it had been the drug trial, the ruling would likely have been otherwise.)
But the trial court stumbled, the court notes today, when it admitted testimony that the decedent told another witness that she had decided, after a period of ambivalence, to testify in the drug trial. There was no proof that the decedent ever learned of this decision, and the string of inferences that the trial court had relied upon to justify its admission amounted to speculation. Rejecting an alternative argument by the Commonwealth that this ruling was harmless error, the court notes that this statement was “a critical component of the Commonwealth’s case to show Hodges’ motive for murdering” the decedent. The case is thus sent back for a new trial.
This case is important for its detailed treatment of the relatively new doctrine announced by the US Supreme Court in Crawford v. Washington, in which the Confrontation Clause was held to invalidate the use of testimonial hearsay in most criminal cases. Today’s decision defines the contours of that doctrine; the court ultimately rules that the statements at issue here were not testimonial in nature. This discussion alone makes the opinion required reading for criminal practitioners on both sides of the aisle.
Justice Kinser, joined by Justice Lemons, dissent in part, believing that the challenged ruling was, at most, harmless error. The dissenting justices do not address the merits of whether the ruling was error or not.
I’ll have to admit, I was puzzled when I read a few months ago of the assignment of error in Davis v. Commonwealth. Davis alleged that he could not have been convicted of object sexual penetration, since the victim (who turns out to be a police officer) was fully clothed at the time. Now that I have read the opinion, I understand completely. I also understand completely, and agree with, the decision to affirm his conviction. Here’s what happened:
It started out as a plain-vanilla public intoxication arrest, the kind of thing that happens all too often in the Virginia Beach resort area. A police officer placed Davis in his police car, at which point Davis rebelled at the idea of life as an arrestee. He became violent and obstreperous, threatening the arresting officer, other “guests” at the jail, and anyone else within earshot, with sexual assault. The officer decided it would be prudent to put Davis in a separate cell, instead of in a room with other arrestees.
Another officer, this one female, came to assist. When the original officer began to remove handcuffs from Davis, a struggle ensued. During that, Davis managed to get a hand between the female officer’s legs and pressed inward. The officer immediately felt pain.
Davis was convicted in the trial court, and made an unsuccessful trip through the Court of Appeals. But the Supreme Court awarded him an appeal. Any hope Davis may have had of freedom proves ephemeral; the court unanimously affirms, in the shortest opinion of the day. The court reasons that a conviction only requires a slight penetration of the labia majora, and the officer unambiguously testified that that had happened. The fact that the officer was fully clothed gets Davis nowhere; the statute does not require skin-to-skin contact. (If it did, then any assailant could easily evade conviction by the simple expedient of using gloves.)
Intoxication also plays a prominent role in the tragic consequences of Stevens v. Commonwealth, the result of a conviction for aggravated involuntary manslaughter. Stevens, who testified to having consumed “lots, and lots, and lots” of alcohol, ran a red light and crushed an oncoming vehicle, killing a passenger. Taken to the hospital for treatment, he admitted to having had “12 to 24 beers” before the collision.
The hospital took a blood sample; that one produced a reading of .24 or .25%. A deputy sheriff then came to the hospital, arrested Stevens, and got his consent to take a blood sample under the Implied Consent law. As usual, two samples were taken; the deputy offered to send one sample for independent analysis, but Stevens declined to sign, saying, “I’m too f______ up. I can’t sign s___.” (These edited versions of the actual words are courtesy of the court; I am glad not to have to decide whether to spell them out here.) The Commonwealth’s sample gave a reading of .21%.
Before trial, the court suppressed the results of the blood test of the sample taken by the deputy; today’s opinion does not specify why. For some reason (the opinion doesn’t help on this point, either), a doctor was permitted to testify about the results of that test, despite the earlier ruling. Stevens assigned error to this evidence.
But a doctor also testified, pursuant to a specific statute, about the analysis of the earlier sample that had been taken by the hospital – remember, that’s the one with the higher result. Stevens was convicted based on all that, plus physical evidence and his own admissions of large-scale intoxication.
On appeal, the court first notes that the admission of the Implied Consent test results, contrary to the pretrial ruling, was at most harmless error, given the higher results of the hospital test. The second ruling is one that may surprise some traffic defense practitioners – the court finds that the ostensible denial of Stevens’ right to an independent test was also harmless beyond a reasonable doubt, given the results of the first two tests. In language that will warm the heart of many a prosecutor, it holds that “it is unreasonable to believe that a third test would have differed substantially.”
The court’s final ruling is that the evidence was sufficient to prove Stevens’ guilt. Among several sub-rulings on this point, the most significant is that Stevens’ high level of intoxication, standing alone, is enough to prove “gross, wanton, and culpable” conduct, and to justify his conviction on an aggravated level of the offense. The other evidence simply bolsters this conclusion, but the language of the opinion leaves no room for doubt – anyone with a high BAC who causes a vehicular death is facing an almost certain conviction for at least aggravated manslaughter. Virginia’s drunk driving law, already some of the toughest in the nation, got tougher still today.
Criminal practitioners know well that evidence of a defendant’s prior convictions is inadmissible against him at trial, unless he takes the stand and therefore puts his own credibility at stake. But what about the case where a defendant is charged with a recidivist level crime? In that case, proof of the prior convictions is a required element of the offense. So what gives? The court provides an answer today, in Washington v. Commonwealth.
Washington was convicted of malicious wounding “after having been twice convicted of a violent felony,” an application of Virginia’s Three Strikes law. The trial was bifurcated, and Washington objected when the Commonwealth moved to introduce his prior robbery convictions during its case in chief. He contended that the proper procedure should be to introduce the convictions only during the sentencing phase of trial; otherwise, the jury would hear in the guilt phase that he was a two-time felon.
He originally found a sympathetic ear in the Court of Appeals; a panel of that court overturned his conviction, but the full court, in an en banc rehearing, reinstated it. The Supreme Court granted a writ, and today holds that the procedure used by the trial court was appropriate. The court reasons that the bifurcated trial statute (Code §19.2-295.1) specifically limits the evidence the Commonwealth can adduce during the initial penalty phase to the prior convictions. If Washington were correct, then the Commonwealth could never prove the additional requirements for application of the law (that the defendant was at liberty between the times of the prior convictions and the instant offense, and that they were no t part f a common transaction). The court correctly notes that if Washington were right, then the Commonwealth could never get a Three-Strikes conviction.
In interpreting statutes, the court will never construe a statute to mean that the General Assembly intended only an empty gesture. As a result, Washington gets a lifetime of room and board to contemplate both his transgressions and the nuances of statutory construction.
The court decides a related issue in Rawls v. Commonwealth, involving possession of a firearm by a convicted felon. That statute provides an enhanced minimum level of punishment if the prior crime was for a crime of violence – five years if it was, and two years if it wasn’t.
Rawls was arrested on a warrant, and waived formal indictment. After that, the prosecutor noted that the warrant charged him with the lesser version of the minimum. Rawls’ priors included one conviction for statutory burglary, which is one of the violent ones. The prosecutor accordingly sought to amend the warrant on the morning of trial.
Rawls ‘ response was both crafty and creative – he argued that he had to be tried on the original charge, because he had waived indictment. He did not, he pointed out, waive indictment to any amended charge. That didn’t impress the trial court, which ordered the warrant amended and offered Rawls a continuance if he felt surprised. That offer was declined, and Rawls was convicted in the ensuing trial.
On appeal, the Supreme Court decides that an amendment like this changes only the punishment that can be imposed, not the “nature or character of the offense.” It applies the procedure applicable to amendment of indictments to amendment of warrants, since the two documents “serve the same purpose of notifying the defendant of the nature and character of the charged offense.” It also holds that proof of the nature of the prior felony not an essential element of the case, and the Commonwealth can therefore amend under these circumstances. Of course, the court notes, if Rawls had felt it was a troublesome amendment, he could have accepted the continuance offer . . .
Powell v. Warden
is not, strictly speaking, a criminal case; it’s a petition for a writ of habeas corpus alleging ineffective assistance of counsel. I’m grouping this case with the criminal decisions because of the nature of the matter.
Powell was convicted of capital murder in 2000 and sentenced to death for one murder committed at the time of the rape and attempted murder of another victim. The circumstances of the crime are – I will select an appropriate adjective here, more or less at random – horrifying, perhaps enough to shake the faith of the most ardent death penalty opponents. In 2001, the Supreme Court reversed and remanded the case for a new trial on a charge not to exceed first degree murder, because the Commonwealth was missing a key piece of information. Flush with triumph, and safe in the knowledge that he could no longer be executed, Powell wrote a smug letter to the prosecutor, in which he divulged the very missing information.
If the prosecutor will permit me to damn him with faint praise here, he was smarter than Powell. He promptly obtained a nolle prosequi of the existing case, and secured a new indictment for capital murder. He got another conviction, and this one held up on appeal in 2004.
But Powell wasn’t through. He filed this habeas corpus petition, asserting that his trial lawyer erred in failing to object to an erroneous entry in the criminal history that was given to the jury in the sentencing phase. The entry listed another conviction for capital murder, instead of attempted capital murder. You can see the form here; scroll down to the bottom of page 3, and see the last entry.
Now, this is a big deal when there is so much at stake, and a sharply divided court rules that Powell has not established that the error in the form (and the error by Powell’s trial counsel in not noticing it and objecting) were reasonably likely to have affected the outcome of the case. Justice Keenan, joined by Justices Koontz and Lacy, dissents, finding that a mistake of this magnitude cannot be ignored or regarded as utterly irrelevant to the outcome. The dissent emphasizes the effect of this ruling, not on Powell, but upon something more fundamental:
“When a jury has determined that a defendant should die for the commission of a heinous murder, the public should be able to have confidence that this determination was made without fundamental errors having occurred in the sentencing process.”
Rulings like this, under the doctrine announced by the US Supreme Court in Strickland v. Washington, are inherently case-specific, so it’s impossible to say that a future error like this will automatically result in an affirmance. One relevant factor is just how much support there is elsewhere in the evidence for the disputed issue. The majority finds ample support for the jury’s finding of both vileness (for which factor the error was irrelevant) and future dangerousness. In a closer case, such an error might well prove to be enough to warrant remand.
Sexually Violent Predators
Miles v. Commonwealth
is the latest in the series of decisions on this new statutory framework, by which the Commonwealth can identify prisoners, just before their sentences are completed, who appear to be sexually violent predators, and have them civilly detained for treatment even after their criminal sentences have been completed. In order to help identify those likely to qualify for this detention, the Department of Corrections administers an initial test that produces a score of between zero and six, gauged by the number and characteristics of an offender’s history of sexual crimes. Anyone who scores four or above is diverted for full-scale evaluation for the program.
Miles received a score of four, and was recommended for the program. But that was a mistake; his correct score was three. Despite this, DOC evaluated him and found him to be a likely sexual predator. The Commonwealth accordingly filed a petition for his commitment, which the circuit court granted over Miles’ objection.
On appeal, Miles argues that he never should have been tested (beyond the initial assessment) in the first place, since his correct score was below the threshold. The Commonwealth responded that the screening test was “a procedural mechanism, rater than a requirement for further proceedings under the Act.” Once the full testing justifies the commitment, an inadvertent error in the pre-test shouldn’t matter.
But it does. The Supreme Court finds from the plain language of the statute that the initial evaluation is a prerequisite to full testing. Where an inmate falls below the minimum score of four, he cannot be further processed for involuntary commitment. In reaching this conclusion, the court applies the strict construction relating to criminal statutes, since this Act implicates substantial liberty interests. The court does offer a small consolation to the government, though not one that will keep Miles under lock and key: It finds that the four-point-minimum is not a jurisdictional prerequisite for circuit courts. That is, it acts like an affirmative defense that must be pleaded, or it may be treated as waived. Since Miles raised the objection, his commitment order is reversed.