[Posted September 1, 2009] The criminal-law hits just keep on coming; the Court of Appeals gives us three more rulings in criminal appeals today.

Criminal law
I have a soft spot for stupid-criminal stories. I love the goofy ways that some crooks outsmart themselves, or embark on criminal enterprises that are destined to fail. Just last month, we saw yet another would-be bank robber who wrote his stick-up note on the back of his own deposit slip, thereby giving the police at least a reasonable idea of where to find him. One of my favorites is the story of the hapless counterfeiter who carefully trimmed the four corners off a twenty-dollar bill and then pasted them onto a single – thereby spending $21.00 in an effort to counterfeit a twenty.

Today we get the story of the guy who got the grand idea of faking a return of merchandise. What could be easier? You load some stuff into a shopping cart; wander around the aisles for a while, and then show up at the returns desk, blithely asking for a “refund.” Easy cash.

Except as the defendant in Carter v. Commonwealth learned to his chagrin, sometimes the store employees aren’t utterly stupid; sometimes they tell you, “Sorry, Bub, no refund.” In this case, after Carter and an accomplice tried this trick with several large cans of paint at a Home Depot in Henrico County, the customer-service clerk decided to call security. That resulted in a couple of arrest warrants, and indictments for grand larceny.

I will unashamedly say that I spotted the appellate issue pretty early on here – I expected that this would constitute an attempt to obtain money by false pretenses, instead of larceny. But the prosecution went on with its case, and the trial judge found the evidence of guilt compelling. In today’s split opinion, Judge McClanahan (joined by Judge Petty) rules that the trial court got it right.

There’s one key point at which an impossible situation presents itself for the defense: What do you do if the refunds clerk says no, as happened here? The two primary possibilities are (1) you grumble and take the goods “back to your car”; or (2) you sheepishly return them to the shelves, or maybe just abandon them right there in a feigned huff. (I suppose there’s a third possibility: “Gee, Miss, I’d really like to get the refund; but you’ve been so nice, I’m going to give them back to your store, as a gift.” Naah.) The majority finds that the trial court was permitted to infer that the crooks would have chosen option 1, thereby furnishing the necessary intent to permanently deprive the owner of the property.

Judge Powell dissents, pointing out along the way that while the evidence may well have been sufficient to establish (ahem!) false pretenses, there was no proof of an intent to steal the paint, as contrasted with the money that was unquestionably the crooks’ real goal.

I have written recently about the US Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), in which the high Court found that certificates of drug analysis constitute testimonial hearsay and are thus subject to objection on Sixth Amendment grounds if the preparer of the certificate is not in court to testify. Today, the Court of Appeals hands down its first post-Melendez-Diaz opinion addressing the issue; the case is Grant v. Commonwealth.

This is a DUI prosecution. Grant blew a .11, but his lawyer had the presence of mind, even before the Melendez-Diaz opinion, to demand the presence of the test operator at trial, to be subpoenaed by the Commonwealth. The prosecution essentially replied, “You want him, you subpoena him.” Virginia law previously provided that the accused could subpoena the test operator if he wanted him (the Commonwealth had to pay the expense of the testimony), but the subsequent issuance of the Melendez-Diaz opinion eliminated the possibility that the accused could be required to summon evidence against himself in this manner. Of course, the General Assembly passed curative legislation last month, but that was too late for this trial.

A unanimous panel of the court today finds that Melendez-Diaz requires the presence of the test operator in this case, so the conviction is reversed and remanded. The court specifically rejects the contention that the admission of the certificate was harmless error; criminal-law practitioners should read this opinion carefully for the difference between statutory and constitutional harmless-error analysis.

The one thing that Grant doesn’t get, is sprung. The case is remanded “for further proceedings if the Commonwealth be so advised.” What do you think are the chances that the test operator will show up at the inevitable retrial?

The third opinion handed down today is the longest; Carroll v. Commonwealth comes in at 30 pages, which is longer than the other two decisions combined. It poses a thorny issue relating to the circumstances of an Alford plea. More important to at least one sector of my audience, it raises scary concerns about the phrasing of questions presented.

Carroll was charged in 2007 with a rape that had occurred in 1983. In the meantime, the prosecution had destroyed some of the evidence in the case (in fairness, this was before the availability of DNA testing), so the Commonwealth had some proof problems. But evidently those problems weren’t insuperable; Carroll himself was convinced enough that the prosecution could make out a case, that he decided to enter an Alford plea. As most of you know well, that plea permits a defendant to continue to assert his innocence while acknowledging that the Commonwealth has enough evidence to convict him. The practical effect is that he consents to being treated as though he had been convicted.

The trial court accepted the Alford plea and deferred a ruling for five years, with the understanding that if Carroll stayed in good stead with the law (and importantly, with his probation officer), then the charge would eventually be reduced to the misdemeanor of assault and battery.

The probation officer referred Carroll to a clinic that provided counseling for sex offenders. The program starts with the concept of acceptance of responsibility for one’s actions. You see where this is going now?

Carroll declined to “accept responsibility” for the rape, continuing to insist, consistent with his Alford plea, that he was innocent. The clinic tried for two months to persuade him to change that, but after that much time, it gave up; the counselor returned the matter to the probation officer, saying that Carroll was “being unsuccessfully discharged for lack of amenability.” That produced a warrant for violation of probation.

At the subsequent hearing, Carroll insisted that the court’s acceptance of the Alford plea meant that he was not obligated to confess his guilt to anyone, including the judge, the probation officer, and the counselor. The court saw it otherwise; it convicted Carroll of rape and imposed a fully-suspended prison term. Carroll appealed. (In case you’re wondering why he would appeal a conviction that includes zero active incarceration for a serious offense, one answer is that a conviction of rape is death to your employability in certain fields, and Carroll was a real estate professional.)

The appeal turns on the phrasing of Carroll’s questions presented. He posed this question: “Whether the trial court erred in finding Appellant in violation of probation based solely on Appellant’s refusal to admit to rape during sex offender therapy given the fact that the Commonwealth agreed to and the court accepted an Alford plea?” Today, the majority (Judges Haley and Humphreys) finds that this question does not properly implicate the principal issue that Carroll wants the court to address: Whether Carroll got an enforceable right to refuse to admit guilt when the trial court accepted the Alford plea. The majority finds that review of this issue is barred by Rule 5A:12(c) (“Only questions presented in the petition for appeal will be noticed by the Court of Appeals”), and it affirms the trial court’s ruling.

Judge Alston dissents, finding that the question comes close enough to the heart of the issue that the court can and should decide it. He is plainly troubled by the incongruity of this situation, and even asserts that empowering a probation officer to require an admission of guilt, where a judge does not, would violate the separation of powers doctrine. (The majority understandably rejects this argument as not having been raised by Carroll, either below or on brief on appeal.)

I could wade in with a few opinions about the merits of these issues, but the two opinions do a perfectly fair job of discussing them, so I’m not going to tell you that one of them is conclusively right. Indeed, I don’t know which of these sides ultimately ought to be right on the merits. My goal, however, is to point out appellate landmines where I see them, and this case lays down a whole minefield.

Crafting questions presented (and assignments of error in the Supreme Court) is hard. It’s difficult to anticipate all of the twists and turns that legal arguments can take over the course of an appeal. In the words of my favorite author, Mark Twain, “It’s impossible to make anything foolproof, because fools are so damned ingenious.” The appellate judges with whom I am acquainted are far removed from fools, and are even more ingenious, so I cannot give you, my readers, a foolproof way to craft your issues, so that this problem doesn’t arise for you. All I can say is to write them with care; no issue statement (whether it’s a QP as in this case, or an AoE upstairs) should be written without significant thought and prevision about the likely course of the appeal. Only by doing that can you minimize – I won’t lie to you and use the word eliminate – your chance of being bitten by this deadly bug.