On Tuesday, February 22, the Court of Appeals of Virginia issued opinions in a quartet of cases.

One case was disposed of not on the merits. In Randolph v. Commonwealth, the court determined that a deferred finding is not a final, appealable order, and dismissed the appeal for want of jurisdiction.

Randolph had been admitted to the psychiatric ward of a hospital on a temporary detention order. While he was being admitted, a nurse, following hospital procedures, inventoried his belongings, and found a small amount of crack cocaine. Randolph was thereupon charged with simple possession of cocaine. At trial, Randolph moved to strike the Commonwealth’s evidence, contending that his involuntary presence in a psychiatric unit showed that he did not have the capacity to consent to a search. The trial judge overruled this motion.

Faced with a possibility of incarceration, Randolph determined to request treatment as a first offender. The trial judge granted this request, deferred a finding, and placed Randolph on probation for two years. The court’s order provided that if Randolph fulfilled the terms of his probation, the charges would be dismissed after two years.

Randolph appealed the trial court’s order denying his motion to strike, but in granting the writ, the Court of Appeals directed the parties to brief the question of whether the underlying order was final for the purposes of appealability. After considering the issue, the court determined that it was not, since the trial court still retained control over the ultimate disposition of the case; if Randolph failed to comply with the terms of his probation, he could be found guilty and sentenced at a later time. The court therefore dismissed the appeal without prejudice.

The appellate court recognized Randolph’s quandary at trial. He was forced to decide whether to stand his ground on the motion to strike, and thus earn a chance at acquittal at the risk of possible incarceration; or to accept the “certainty of escape from punishment” afforded by the first offender statute, without having the right to appeal. The court decided, in essence, that that was just one of those hard choices that all litigants must face from time to time. But since the court found that no final judgment of conviction had been entered in the case, it had no jurisdiction to consider the appeal.

Randolph’s dilemma will not be an unusual one; there are many cases in which a defendant may feel that he has a meritorious defense, but when that initially fails, he knows he holds an insurance policy of sorts. The decision whether to accept the statute’s benefits, or to hold out for more, is just another of life’s tough choices. The court’s ruling emphasizes that Randolph, and others similarly situated, may not play their “Get Out of Jail, Free” card and keep it, too.

There was one reversal, in Moore v. Commonwealth. The simplified issue there was whether police officers have a right to conduct a search incident to arrest where they are required to issue a summons instead of taking a suspect into custody.

Moore is among the legion of persons who find themselves in trouble despite doing nothing obviously wrong at the time of their apprehension. (Others include, for example, drunk drivers who operate their vehicles safely, but get rearended at a traffic light, and then prosecuted for DUI.) He was the “victim” of a mistaken identity, when police officers stopped his car believing he was someone else. The mistaken identity was discovered when Moore produced his license. Unfortunately, the same document also clued the officers in to the fact that Moore’s license was suspended.

Normally a suspended OL charge results in the issuance of a summons, not physical arrest. If the suspect refuses to sign the summons, or if he refuses to discontinue the violation, OR if officers believe that he will likely disregard the summons or that he will likely harm himself or others, then the suspect may be arrested. If none of these limited exceptions apply, the officers must release the suspect on a summons.

The Court of Appeals found that none of these exceptions applied here, and that Moore therefore should not have been arrested. Having determined that much, the court cited the U.S. Supreme Court’s decision in Knowles v. Iowa, and ruled that the issuance of a summons could not support a search-incident.

The case has some particularized features, including the presence of an aggrrssive dog in the car with Moore; the opinion analyzes each of these in the context of Knowles and another U.S. Supreme Court case, Atwater v. Lago Vista (which the court distinguished based on different statutory language). But the lesson of this case is that one who commits a traffic infraction does not thereby subject himself to a search – assuming he signs the summons and otherwise acts like a good little defendant.

The court affirmed convictions in the other two cases decided on Tuesday. Shelton v. Commonwealth dealt a blow to criminal defendants who fail to recognize that, in view of the substantial compliance doctrine, sometimes shall means should. Shelton was charged with DUI in Martinsville. The arresting officer, after arresting him, took him to a nearby facility and gave him a breath test. Shelton’s test showed a result of 0.14%, well over the .08% threshold. The officer showed Shelton a copy of the test result, but did not give him a copy.

Shelton’s defense lawyer noticed this small aspect of the story, and objected to the introduction of the test result at trial. The statute, he pointed out to the trial judge, specifically states that “a copy of the certificate shall be promptly delivered to the accused.” (Emphasis supplied, no doubt more forcefully at trial.) Now on the defensive, the Commonwealth’s Attorney fell back on the prosecutor’s best friend, the substantial compliance statute, and contended that the default was merely technical. The trial court agreed, finding that “since the breath test procedure does not contemplate the defendant having his breath sample analyzed by an independent party, then the fact that he has been shown the result but not actually given a paper copy of the result can hardly have any effect on his substantive rights at trial.”

The Supreme Court was so impressed by this syllabus that it quoted it, verbatim, and adopted it as a statement of its own reason for affirming. (If the Supreme Court was sufficiently impressed by the language to pay the trial judge this compliment, then this writer can do no less than to quote him as well.) The effect of this ruling is to remove another arrow from the quiver of cutting-edge DUI defense attorneys, seeking a vulnerable spot in the prosecution’s armor.

Finally, in Morris v. Commonwealth, the court reviewed a case involving simultaneous felony and misdemeanor prosecutions arising out of a robbery. Having robbed a convenience store of $80 (and, one hastens to add, a carton of cigarettes), Morris found himself in custody and facing three felony charges and three misdemeanor charges. In the initial hearing, the General District Court certified the felony charges to a grand jury, and tried Morris on the misdemeanor charges, convicting him of two and dismissing one.

Later, in the Circuit Court, Morris’s attorney filed motions to dismiss on the basis of former jeopardy, asserting that the misdemeanors with which Morris had been charged were lesser included offenses of the pending felony charges. The trial court declined to dismiss, at which time Morris entered conditional guilty pleas, and appealed.

But the Court of Appeals wasn’t having any of it, either. Citing precedents from that court and the Supreme Court, it found that the prosecutions all began at the same time, and the continuation of the felony proceedings was not a “subsequent prosecution” of the felonies.

The court wasn’t done; it addressed each of Morris’s lesser-included-offense arguments, and, one by one, pointed out differing elements of proof for each. For example, it found that brandishing a firearm is not a lesser included offense of robbery, because robbery can be committed without a firearm, and brandishing does not require the taking of property.

Thus spent, the court affirmed Morris’s convictions.