[Posted August 17, 2010] Boy, have I got some catching up to do. The day job has kept me hopping lately, so I have plenty of midsummer developments to report to you. We’ll start with some news and notes, and then get around to analyzing two weeks’ worth of published decisions from the Court of Appeals.

Fourth Circuit inches closer to a full bench
For years now, I’ve been railing (well, in a muted way) about the need for the United States Senate to fill the many vacancies in the Fourth Circuit. Once upon a time, when there were five vacancies among the 15 authorized seats, I noted that “A third of the Fourth is missing.”

Last week, the Senate voted to approve the nomination of Judge Jim Wynn of North Carolina to fill one of the remaining vacancies. If you go to this page, click on “Information” and then “Judges of the Court,” and start counting names, you now get all the way to thirteen regular judges before you start seeing any senior judges. That’s a great sign of improvement, as it increases the court’s full-time judicial manpower; that, in turn, will help to reduce the court’s reliance on senior judges (of which only Judge Hamilton remains) and judges-designate from elsewhere (including district judges from within the circuit).

It’s also an excellent sign on a personal level. I had the good fortune to meet Judge Wynn last October at the ABA Appellate Summit, and found him to be a particularly gracious and engaging person. I’m very happy for him, and for those litigants and attorneys who have cases in the court.

Note to the 100 in Washington: Only two more to go . . .

Next Appellate Practice Institute announced
The ABA will again offer its outstanding Appellate Practice Institute next year. The program (which is thus far only at the save-the-date stage) will be May 20-22, 2011 in Chicago. Let me put this plainly: This is the finest appellate training that is available in the United States of America. If you’re serious about improving your ability in appellate courts, and especially if you want to pursue appellate work as a primary focus of your practice, you owe it to yourself (and to your future clients) to attend this program at least once.

A new chief
You may recall the announcement this Spring that Virginia’s Chief Justice Leroy R. Hassell will not seek a third term in the center chair when his current term expires in a few months. The justices now get to select the chief justice from among their number; before the current chief was selected, the chief justice was a simple matter of tenure on the court. As I understand it, the justices will conduct a vote at a business meeting to be held some time this month. I don’t know whether they’ll announce the identity of the new chief immediately, but as soon as I know it, I’ll post something here. This is what’s classified as major news here at VANA.

A new feature on this site
You’ve seen the note before, whenever I post analysis of unpublished SCV orders: “Since today’s order is unpublished, it won’t appear on the court’s website and it won’t show up in Virginia Reports. If any of you want a copy, contact me and I’ll send you one.” Last month, I attended a presentation by one of my regular readers, a jurist from the State of Northern Virginia who shall remain nameless, but whose initials are Jane Marum Roush. Her honor noted the importance of what I usually call unpubs, and decried the fact that they aren’t available in a database anywhere.

You know what? She’s right. While these orders don’t carry the same weight as published opinions, and are next to useless as authority in appellate briefs, they still can pack a lot of punch if you can hand one up to a trial judge. I decided, based on her honor’s implicit suggestion, that there needs to be a place where you can go and get copies of these orders for use in your practice.

As of today, that place is right here. You’ll find, off to the left in the navigation box, a tab entitled, “SCV Unpublished Orders.” I’ll start posting a short note (probably just a sentence or two) about each case, and provide a hyperlink to the order itself, so you can find what you’re looking for and run it off directly from the site. You’ll find there right now an order entered last week in a criminal appeal, and I’ll add links for all future unpubs, organized by case area, as they come down. If you have any feedback for this feature, such as a problem or a suggestion for an improvement, let me know; I’m eager to make this feature both helpful and workable.

Analysis of recent CAV opinions
The Court of Appeals has been as busy as I have lately, issuing nine published opinions in the past two weeks. All of the new decisions are in the field of criminal law, and the criminal appellants are taking a juridical pounding. In one case last week, an appellant secured one reversal but lost on the other conviction he appealed; in all of the other eight appeals, the appellants lost completely. I have some pals in the Attorney General’s Office, and while I doubt they’re going around the office high-fiving each other, they’re probably at least whistling through the hallways these days.

For example, today the court rules that the Wong Sun doctrine doesn’t bar admission of evidence discovered after a detainee decided to become a flee-ee. (Okay; it should be flee-er. But give me some poetic license here.) In Fitchett v. Commonwealth, a Chesapeake police officer approached a man he suspected of having an open container of alcohol. The man and an accomplice turned their backs to the officer, and when they turned around, the suspected container was gone. The officer asked Fitchett to put his hands up for a pat-down for weapons. Fitchett complied, nervously. The officer touched Fitchett’s hand once, and there was probably an “ESC” button up there, because Fitchett immediately took off in an effort to, well, escape.

During the pursuit, Fitchett stumbled in a driveway, and that’s when the gun fell out of his waistband. That’s an unfavorable development, because Fitchett was – you knew this was coming, right? – a convicted felon. He moved to suppress the weapon, contending that he was illegally seized without probable cause. Today, the CAV assumes without deciding that the seizure was illegal, and affirms the conviction anyway. It cites a couple of cases that look right on point, for the proposition that when a suspect flees and evidence rains down during the pursuit, that evidence isn’t the “fruit of the poisonous tree” of the original stop. Even Wong Sun had held that its exclusionary prohibition didn’t apply to all evidence discovered after an illegal stop; just that evidence that was obtained either during or as a “direct result” of the illegal search.

Also today, the court takes up a DUI appeal with an unexpected defendant, in Rix v. Commonwealth. When I worked in Virginia Beach City Hall in the 1990s, I prosecuted a lot of DUI cases, but I never saw anyone take one for the team the way Rix did. She was a passenger in a car driven by a foreign national when the driver’s operation of the car attracted the attention of the police. When the officer pulled the car over, the two occupants decided on a shrewd strategy to confound him: They switched seats while he was approaching the car, and . . .

Okay; these weren’t the smartest suspects on the streets that day. But alcohol affects your judgment – one of the primary reason we don’t want drunks driving – and maybe Rix didn’t consider in those desperate seconds that she was essentially volunteering to be prosecuted for DUI.

It didn’t matter; on examination, she had many of the classic signs of intoxication, so the officer told her she was a suspect. It was at this point that she sprung the trap, telling the officer that she hadn’t been driving. (There goes the ruse; discarded like a used coffee filter. One wonders whether she suddenly decided in a panic to throw her pal under the police car.) The officer, unmoved, arrested her anyway.

The issue in this case is whether Rix was “operating” the car. I learned in my time in City Hall that you can operate a stationary car as long as you’re in control of it. Rix argues unsuccessfully on appeal that just sitting in the driver’s seat isn’t enough to be an operator, but the CAV concludes that sitting there while the key is in the ignition and the engine is running, thereby putting you in control, makes you an operator. Otherwise, the court reasons, any driver could escape punishment by the simple expedient of taking his hands off the wheel and his foot off the brake as the car plows down the sidewalk.

Smith v. Commonwealth is an appeal from convictions for attempted rape and abduction with intent to defile. The victim, a juvenile, was a friend of Smith’s live-in girlfriend. As the victim walked past Smith’s house one day, he beckoned her inside, telling her that his girlfriend wanted to see her. The girl came into the house and asked where her friend was; Smith answered that she was in a bedroom. When the girl went inside that room, Smith followed her, closed the door, and tried to rape her.

Technically, there are two issues in today’s ruling, but in reality only one of those merits publication of this opinion. Smith challenged the sufficiency of the evidence, claiming that the victim had given statements with a few conflicting details, so her testimony was, as a matter of law, not credible. The court notes in response that issues of credibility, even where a witness has given conflicting statements, are for the jury to evaluate. Lawyers hoping for an appellate finding that testimony is inherently incredible are in for a long wait.

The real issue in this case is whether Smith could be simultaneously convicted of these two crimes, given the incidental-detention doctrine. That principle provides that where the victim is restrained only in a way that’s intrinsic to another crime, then that restraint is not a separate offense of abduction. Smith argued that the evidence didn’t show that he restrained the victim other than as a part of the attempted rape. Looks like he may have a point here.

But the Court of Appeals affirms today. It analyzes a four-part test to determine whether a given restraint is incidental to another crime, and concludes that in this case, Smith’s acts constituted a separate act of detention. To my thinking, one single case citation, cited near the end of today’s opinion, provides all the authority the court needed for this conclusion. In 2004, the Supreme Court of Virginia decided a habeas-corpus case in which the court found that luring the victim inside a house under false pretenses, and then attacking him, constituted two separate crimes. That’s just what Smith did here, deceiving the young victim into thinking that her friend wanted to talk with her.

As noted above, last week was little better for those seeking to shed their criminal convictions. The appellant in Wade v. Commonwealth discovered to her dismay that you can, too, be convicted as a principal in the second degree even though you’re only charged with a misdemeanor. There’s a statute that deals with such principals in felony prosecutions, but there’s no companion provisions for misdemeanors. But a panel of the CAV construes that statute to mean that with misdemeanors, everyone is a principal in the first degree.

The appellant in Montgomery v. Commonwealth was unquestionably denied the exercise of the statutory right of allocution. If you don’t swim in these waters often, allocution is where the judge asks the defendant if there’s anything he wants to say before sentence is pronounced. Maybe you just thought that the nice judge was being polite to the poor defendant. But the Code of Virginia requires the judge to give the defendant a chance to say something before learning his fate, and that didn’t happen in Montgomery’s sentencing for forcible sodomy and two related offenses; the only thing the judge asked him was whether he had any questions. Montgomery received his 45 years, with all but 7½ suspended, in silence.

The defense lawyer didn’t speak up then, but he did soon thereafter, during a hearing on a bail motion, at which the judge said the functional equivalent of, “Golly; I guess I forgot. Okay, I’ll give him a chance to speak now if he wants.” The court then asked the defense lawyer if he wanted to “make a statement at this point for the record,” but the lawyer, perhaps sensing that he had at least the potential for a winning issue here, declined.

That might have been a good strategy, but it failed on a tactical level. In order for an appellate court to evaluate whether the exclusion of material is harmful to the appellant, the court needs to know what that material is. That’s why I always encourage litigants to proffer clean copies of excluded or involuntarily redacted documents, so a reviewing court can see whether it would have made a difference. The court thus affirms since it doesn’t have a satisfactory record of whatever the excluded allocution would have been.

The lawyer’s decision not to offer a statement is more understandable when you know that one of the things the judge said before asking for a statement “for the record” (that’s a plain invitation for a proffer) was, “It’s not going to affect my sentencing, but you may well be right.” The lawyer may have figured that there was no purpose in making what would be a futile proffer anyway, since the trial judge admittedly wasn’t going to change his mind. But proffers aren’t intended to influence the trial judge (although they sometimes can); they’re intended to inform the appellate judge. In this case and in many others, it will almost always pay to make a proffer, at least in terms of preserving the issue for appeal.

Another tactical problem sabotages what might have been a sound strategy, this time in Alford v. Commonwealth. Alford was indicted for attempted rape. At the conclusion of the evidence, the prosecutor and defense lawyer very civilly agreed on a set of jury instructions, so there was no need for that dreary part of the trial proceedings. (Most trial lawyers regard arguments on jury instructions as the usually dreadful exercise you have to go through in order to get to the shining moment of closing argument.) One of those instructions was for the lesser-included offense of assault and battery. The jurors thought that instruction made sense in the context of the evidence, so they returned a verdict of guilty on the A&B charge.

Mulling over what happened, Alford’s lawyer concluded that A&B really isn’t a lesser-included offense of attempted rape. He appealed and asked the Court of Appeals to throw the conviction out. Last week, a panel issued a short (just three pages) opinion swatting that argument aside, since the lawyer had agreed to the A&B instruction. Plainly, you can’t ask the trial court to do something and then argue in an appellate court that the trial court wasn’t authorized to do that; that approach is the “approbation and reprobation” that’s decried in so many dusty appellate decisions.

The lawyer also had the good sense to ask the CAV to apply the ends-of-justice exception to the contemporaneous objection rule. Good move on his part; the court simply will not invoke that exception sua sponte, so if you want any hope of taking advantage of it, you need to speak up in your brief, or else forever hold your peace. But that exception is only triggered to avoid a “grave injustice,” and the court notes that it can hardly be a grave injustice to give an agreed instruction for a one-year-maximum offense when the defendant is charged with a ten-year-maximum offense.