[Posted October 12, 2007] In the September session, the Supreme Court heard oral argument in an astounding 20 criminal cases out of 29 on the docket. Today, it starts the process of chiseling away at all those appeals, by affirming four of them. All of today’s decisions are in criminal cases, and some of them offer no meaningful lessons for the practitioner. Two, however, deserve at least some mention.

When I was a kid growing up in Tidewater, my parents occasionally took me to a pizza joint called Shakey’s. I understand it’s a franchise, so many of you have probably been to one. It was a lively, fun place that didn’t take itself too seriously. I still remember one of the lighthearted signs on the wall, which read: “Shakey made a deal with the bank. Shakey doesn’t cash checks; the bank doesn’t make pizza.”

One particular grocery store in Dinwiddie County had no such deal with the bank, so when Jacqueline Rucker came in one day and asked to cash a Social Security check for $1,400, the store took the check and handed over the money. Rucker then contacted the Social Security Administration and falsely claimed that she had never received the check. The SSA stopped payment and issued her another check, which she cashed (presumably elsewhere), effectively doubling her money with little or no effort.

I sometimes wonder when reading these stories whether rocket scientists like this lady figure that they’re the first ones ever to come up with a foolproof get-rich scheme like this. Well, after the grocer’s bank got the check back unpaid, everything unraveled very quickly, and this get-rich scheme fooled no one. Rucker soon enjoyed the right to remain silent, and was eventually convicted of obtaining money by false pretenses.

This was a sufficiency of the evidence appeal, always a difficult proposition for any appellant, especially in criminal cases. The key issue in today’s order, Rucker v. Commonwealth (#062095), seems to be whether the evidence proved that Rucker intended to defraud the grocery store (as the charges read), as opposed to the SSA. Generations of sensible, experienced con artists could have advised Rucker that she was far better off defrauding a local grocery store instead of the federal government (think US District Court, and US Attorneys, and you’ll get the idea). But today, the Supreme Court holds that the evidence was sufficient to establish that Rucker intended to leave the grocer holding an empty bag, so it affirms.

There’s one other significant point in this order, and it presents a useful preservation of issues lesson. The indictment charged Rucker with committing this crime on June 30, 2004. But the evidence at trial established that the events occurred in June and July 2003. Rucker asserted that this fatal variance was enough to warrant dismissal of the charges. It might well have been, the court rules today, if Rucker’s trial counsel had had the presence of mind to raise that objection in the trial court. But this argument is made for the first time on appeal. And there’s more, even on this procedural default: Rucker’s appellate counsel asked the Supreme Court to invoke Rule 5A:18’s “ends of justice” provision, to enable the court to consider the issue despite the procedural default below. The Court of Appeals had initially rejected this request. At this point, the appellate lawyer simply repeated the argument, perhaps verbatim, in his Supreme Court brief. There are two problems with this approach: (1) Rule 5A:18 doesn’t apply in the Supreme Court; the parallel rule there is 5:25. (2) The lawyer should have assigned error to the CAV’s refusal to apply the exception in Rule 5A:18.

Appellate counsel take note; assigning error is tricky in this context. The correct course of action here, in order to preserve an ends of justice argument, is to put something like this in your assignments of error in the Supreme Court: “The Court of Appeals erroneously refused to apply the ends of justice exception to Rule 5A:18, thereby refusing to entertain the appellant’s fatal variance argument.” That language would at least preserve your right to ask the Supremes to order the CAV to have a heart, so to speak.

In another appeal decided today, the Commonwealth overcomes a substantial procedural disadvantage to secure an affirmance in Robinson v. Commonwealth (#062412). Robinson had been involved in one or more heated exchanges with neighbors earlier in a given day; later on, he heard lots of loud pounding on his door, apparently from those neighbors. Now what in the name of the Second Amendment does a sensible homeowner do in that situation? Why, he gets his gun and answers the door with confidence; that’s what he does. And that’s what Robinson did.

In some manner that today’s order doesn’t specify, things turned ugly. The order is so sketchy, it doesn’t even list what Robinson got convicted of below. It could be anything from simple assault all the way up to homicide. The material point is that Robinson asked the trial court to give a justifiable self-defense instruction to the jury, and the trial judge said no.

This ruling is the key to today’s appellate lesson. In the Rucker case above, the Commonwealth, as the prevailing party at trial, got the benefit of a favorable view of the evidence. Believe me, that makes it very hard to obtain reversal, as long as there was some evidence to support the guilty verdict. But where a trial court refuses a proffered jury instruction, as in Robinson, the appellate court takes the opposite view, and sees the evidence in a light most favorable to Robinson. Basically the court is looking for any evidence that would have supported the giving of that instruction.

But the court finds none. In order to get a justifiable self-defense instruction, the defendant must be “faultless to the minutest degree.” In other words, if you do anything, anything to bring about the altercation, then you can’t use this doctrine in your own defense. (You can still try the lesser tack of excusable self-defense, but that isn’t in issue in today’s case.) Viewed in this context, the Supreme Court comes to the unsurprising conclusion that one who packs heat into a volatile situation may be defending himself, but he ain’t faultless to the minutest degree. The court thus affirms the conviction.

Another easy appellate lesson here: The standard of review decides far more cases than most lawyers think. If you can figure out a way to present your appeal in a manner that gives you a favorable standard of review, you should strongly consider taking that approach to the case. It didn’t help Robinson, but it might help you in your next appeal.

As all four of today’s orders are unpublished, and will not appear in Virginia Reports, readers of this site who would like copies may contact me, and I’ll forward them.