JUNE BRINGS MIXED RESULTS FOR
[Posted June 26, 2007 ] During the month of June, the Court of Appeals has handed down eight published opinions in criminal cases. Despite the popular perception that the appellate court is a lion’s den for criminal appellants, those appellants have fared a little better than you might expect. Here’s a quick rundown on the cases, and the key holdings in each:
CAV CRIMINAL APPELLANTS
On June 5, the court decided Robertson v. City of Danville, a Fourth Amendment case involving police entry into a locked home after arresting the defendant outside. The police had to break down the door in order to get inside the house; when they did so, they found no one else inside, just as the defendant and the complaining witness had told them. They did, however, find a shotgun and spent shells, and charged Robertson with possession of a firearm by a felon, and with discharging a firearm.
The issue in this case is Robertson’s motion to suppress the physical evidence, since the police didn’t get a warrant (or anyone’s permission) to go inside. The trial court denied the motion to suppress, but the Court of Appeals reverses, holding that no exigent circumstances existed to justify a warrantless entry. Unlike another case out of the same court decided this year, Williams v. Commonwealth, 49 Va. App. 439, the officers had no information from any source that there was anyone else inside. That meant that the police effort to break into a locked house in order to “secure” it was incongruous at best.
On June 12, two more appellants got their days brightened. One is a traffic licensure case, Meierotto v. Commonwealth, which arose on the Eastern Shore . Meierotto is licensed in his home state of Oregon with a Commercial Driver’s License. He moved here a few years ago in connection with a construction project in Cape Charles , but kept his Oregon CDL. He never got a Virginia license of any kind. The question in the appeal is whether the Oregon CDL entitled him to operate non-commercial vehicles in Virginia , without getting a plain-vanilla Virginia operator’s license.
The court decides that it does. It notes that the position urged by the Commonwealth produces a potentially anomalous result, since by interstate compact one cannot hold two driver’s licenses at once. Having kept his official domicile in Oregon , he did not qualify to obtain a Virginia CDL (those are apparently available only to Virginians). So the only way he could have driven a non-commercial vehicle in Virginia (under the Commonwealth’s theory) would be to surrender his CDL, get a Virginia operator’s license, and . . . give up his career. The Court of Appeals isn’t about to conclude that the General Assembly intended to do that, so the charge is dismissed.
The other June 12 case is Roulhac v. Commonwealth. This one is also a Fourth Amendment case that turns on just how suspicious a certain hand-to-hand contact was. Police officers saw Roulhac apparently transfer something by hand to another person. They didn’t know what the object was, and they didn’t know if a crime had been committed, but they were sure going to find out. They stopped both men, and asked Roulhac for consent to search him. Roulhac said no, thanks, and then put his hand into his pocket. That was that; citing a long-standing practice, one of the officers proceeded to pat Roulhac down for weapons. And that’s when he found the pipe, with the cocaine residue.
On appeal, the case turns on whether it’s reasonable for an officer to pat down a suspect when no identifiable crime has been committed (you have to admit, handing something to another person isn’t an indication of a crime, or else we’re all suspects sooner or later), and when the officer has no indication that the suspect is armed. The opinion analyzes the three types of police confrontations (consensual; Terry stops; and arrests) and decides that once the officer put his hands on Roulhac, this one immediately escalated from consensual to a Terry stop. At that point, under well-developed caselaw, the officer had to have “reasonable grounds to believe [Roulhac] was armed and dangerous.” Since there was no such evidence, the conviction is reversed.
The tide turns in favor of the Commonwealth on June 19, as appellants’ challenges fall short in four cases decided that day. The first, and one that will be of interest to practitioners in fields other than criminal law, is Hairston v. Commonwealth, which is really about the requirements for issuance of a subpoena duces tecum for health care records. Hairston was charged with taking indecent liberties and unlawful carnal knowledge. His attorney issued a subpoena for the victim’s counseling records; that subpoena complied with Rule 3A:12(b). The Commonwealth moved to quash it anyway, citing the subpoena requirements in the state law equivalent of HIPAA.
The trial court quashed the subpoena, holding that the subpoena didn’t meet the enhanced requirements of the Virginia statute, which is designed to ensure the privacy of medical records. On appeal, the Court of Appeals affirms, holding that in the narrower field of health care records, a litigant must comply with both the Rule of Court and the privacy statute.
Groves v. Commonwealth involves something called the “claim-of-right” defense in larceny prosecutions. Groves acknowledged that she had transferred $3,700 out of her estranged husband’s checking account, and that he had not given specific consent for her to access the account. But she pointed out that he was in arrears for nearly $3,000 in child support payments, and argued that she was simply using self-help, since she was really, truly entitled to the money. He Commonwealth’s Attorney saw it otherwise, as did the trial court; she was convicted when the judge (in a bench trial) found that he simply didn’t believe her testimony.
The Court of Appeals affirms, ruling that the trial court applied the correct standard in evaluating the case. Groves had asked the trial court to decide the case based on her claim-of-right defense, and to hold that as long as she had a colorable claim to the funds, she couldn’t be convicted. But as the appellate court notes, she never gave a satisfactory explanation for why she took $3,700 when she only claimed to be owed $3,000. (The difference of $700, you will note, is above the threshold for grand larceny, so this defense is arguably immaterial at this point.) The Court of Appeals also notes that the claimed defense has a good faith component – that is, a defendant can’t come up with some cockamamie story and rely on that – and the trial court was entirely free to disbelieve Groves ’s testimony, as he expressly did.
I have to confess that upon reading Burrell v Commonwealth, I wondered why someone would go to great lengths to defraud a county, in order to get welfare benefits that a nearby city would have to pay anyway. If you’re confused, read on; the facts, at least, get clearer from here.
Burrell lived in Newport News , but applied for food stamps from Isle of Wight County . (The two jurisdictions are right across the James River from one another.) She told the county in the application that she and her five children lived at an address in the county. Every morning, investigators determined, she loaded her kids into a vehicle at her home in Newport News , drove them to her mother’s house in Isle of Wight , and wa tc hed as four of them (the ones who were school age) got onto a county school bus. When county school officials learned about it, they told her she’d have to start paying tuition for her children; at that point, she withdrew them from the county schools.
The Commonwealth prosecuted her for welfare fraud. Her principal defense, as far as I can tell, is that she would have been entitled to the welfare benefits anyway; the only thing she did wrong was to apply for them in the wrong jurisdiction. In affirming her conviction, the appellate court reasons that she “was not ‘entitled’ to food stamps from Isle of Wight County; the fact that she may have been entitled to food stamps in a different locality is immaterial . . .” (Did you notice the parallel reasoning to the claim-of-right defense from the Groves decision? Well, it doesn’t work here, either.)
In Pryor v. Commonwealth, the court takes Route B to reach what it might have reached more quickly by Route A. The case involves a conviction for cocaine distribution, and the defendant had the bad luck to be on the 21st Century version of Candid Camera. An informant agreed with police to make two drug buys from Pryor. After being wired for video and sound (they make surveillance cameras awfully small these days), she made contact with Pryor and caught him selling drugs on camera both times, once in a car and once five weeks later in her home.
But at trial, the informant waffled when she testified about the second transaction. The court dismissed that count, but permitted the jury to decide the case on the first purchase. In preparation for deliberations, the judge sent the jury the two videotapes over Pryor’s objection, noting that the second one, while no longer the subject of a criminal charge, was still probative of identity. He instructed the jury to consider the second video “only as it may be relevant to the [first] charge. It may not be considered for the [second] charge, which has been struck and is not before you.”
The Court of Appeals rules today that this is the correct approach, despite Pryor’s argument that it constitutes “other bad act” evidence. It finds that the second video refutes Pryor’s argument of mistaken identity; the person identified as Pryor is the only person who appears in both videos. The court determines that this evidence is admissible to show identity, not propensity of the accused to commit a given offense.
There is, in my view, an easier way to get to this conclusion (the Route A that I alluded to earlier), and I will confess to wondering as I read this opinion why the court didn’t take the simpler approach. Specifically, Pryor didn’t move the court to strike the second video from the evidence when the court dismissed the second count. Under that scenario, most appellate advocates will recognize a contemporaneous objection rule waiver from three miles off. The answer to my puzzlement comes, finally, in a footnote at the bottom of page 9: The Commonwealth didn’t raise the killer waiver argument in its brief, and the court’s ruling on the primary issue makes it unnecessary for the court to take up the waiver issue sua sponte.
Finally, today (June 26) the court releases Pharr v. Commonwealth, yet another Fourth Amendment case. This one deals with the effect of giving a DNA sample to the police.
Pharr was arrested in 2001 on charges of breaking and entering with the intent to commit rape. Upon his arrest, he agreed to allow the police to collect a DNA sample from his cheek. The prosecution eventually decided not to use the evidence in that case, since they had enough other evidence to go on. But another police officer asked that the sample be tested against a sample from an earlier (1999) rape case he still had open. That bore fruit when the test pointed to Pharr as the person who had committed the 1999 attack.
Pharr argued that the police never got his consent to use the DNA in the investigation of the earlier crime. The trial court reasoned that he had voluntarily given the sample, and had said nothing about any limitation on its use, so he no longer had any privacy right in it. Today, the appellate court agrees with that analysis. Essentially, once you give the police a DNA sample, you no longer have any reasonable expectation of privacy sufficient to keep the police from using that sample for other law enforcement purposes. The opinion leaves open the possibility that a suspect can limit the potential use of the sample by specifying as much when he gives his consent. But Pharr didn’t do that here, so that avenue isn’t available to him.
Practitioners should keep in mind that this doctrine will apply to things other than DNA samples. Blood samples and theoretically even fingerprints will likely be analyzed in the same way by the courts.