THREE RECENT AND NOTEWORTHY APPELLATE DECISIONS[Posted June 17, 2014] Let’s take a quick look at three opinions that have come down in the last week.
Anyone who has been to traffic court is familiar with the question, which might seem silly at first: “And Officer Jones, did this offense occur in the City of ________?” Well, of course it did, you probably mused the first time you heard that. Everybody around here knows that this address is in this city.
Still, prosecutors have asked officers and witnesses this question in criminal and traffic cases in order to establish the nonjurisdictional but still essential component of venue. A crime has to be prosecuted in the locality where it occurred, by statute, and many prosecutors are hypervigilant about getting this tidbit in affirmative testimony, if only to prevent a nagging motion to dismiss. And yet, sometimes they forget to ask, bringing us to last week’s decision from the Court of Appeals of Virginia in Williams v. Commonwealth.
Williams made the sad mistake of trusting the wrong guy. In this case, that wrong guy was an undercover police officer who expressed a desire to obtain a small amount of crack cocaine. The officer testified that he approached Williams in the 1700 block of O’Keefe Street, and specified that that location was in the City of Norfolk (which is where the trial occurred). He continued that Williams responded that they’d need to drive to the 800 block of Fremont Street. Other than saying that Fremont was “over there,” the officer never stated exactly where it was. The two drove over to Fremont, the purchase was made, and Williams learned about the wrong guy the hard way.
The issue here is whether this is enough to establish venue in Norfolk. In response to a motion to strike, the prosecutor asked the judge to take judicial notice of the fact that Fremont Street is indeed in Norfolk. After hearing arguments on both sides, the judge denied the motion, and eventually Williams was convicted.
The CAV last week affirmed the conviction, holding that the trial court properly took judicial notice of the fact that the 800 block of Fremont is indeed in Norfolk. This is the kind of easily ascertained fact that’s proper for judicial notice, and in the context of the officer’s testimony (including the fact that the trip from O’Keefe was short), it was within the court’s discretion to find that this element of the case was met.
In a closing footnote, the CAV points out that it, too, can take judicial notice of facts like this, hinting that the judges may have gone to Google Earth or Bing Maps and checked to see for themselves. (The opinion refers to the City of Norfolk’s official street maps, but we know better, right?) Sure enough, those sources indicate that Fremont and O’Keefe intersect, well within the city limits of Norfolk; Fremont is only three blocks long.
One last procedural point: The court mentions that a challenge to venue is properly made by a motion to dismiss the indictment, not by a motion to strike the evidence. But since the Commonwealth didn’t argue in the appellate court that this was an improper mechanism for a venue challenge, the court is able to reach the merits of the issue.
The Fourth Circuit handed down an opinion with the sinister-sounding style, Under Seal v. US. A federal grand jury in Maryland was investigating a man who’s identified only as “Mr. Doe” for domestic-violence charges. In furtherance of the investigation, the grand jury subpoenaed Doe’s 19-year-old son to testify. The son moved to quash the subpoena, contending that any testimony that he might offer would be protected by the parent-child privilege.
The son testified during the MTQ hearing that the father wouldn’t hold it against him if he did testify, although the whole situation did generate a lot of anxiety for the son. (Gee, aren’t all federal grand-jury proceedings like that?) The district court weighed the testimony and found that the father-son relationship was protected by a privilege, so it granted the motion to quash.
That’s a noble idea, but unfortunately, there’s no such thing as a parent-child privilege. That’s the key holding of the unanimous panel decision handed down yesterday (the day after Father’s Day!) that reverses the district court and requires the son to testify. As the opinion notes, “every federal appellate court that has considered adoption of the parent-child privilege – including our own – has rejected it.” In the absence of a well-established privilege, the son was required to make a “strong showing” of the need for it, but the court finds none here. A mere desire not to inculpate Dad isn’t enough.
Two adjacent provisions in the Virginia equitable-distribution statute take the stage in Linton v. Linton. When the parties parted ways, the wife had a 49% interest in a limited partnership; her interest was worth over $750,000. When the trial court found that wife owed husband a monetary award of half that amount, an easy solution presented itself: Just order the wife to convey half of her interest in the account to husband.
Husband rebelled at this idea. For reasons that aren’t evident in today’s opinion, he didn’t want to accept that one-half interest. He objected to the court directive, and pointed to Code §20-107.3(C) for support. Today’s unanimous panel opinion from the CAV notes that that provision “specifically prohibits the court from dividing or transferring property which is not jointly owned.” This was the wife’s account, not a joint account, so the husband argued that he didn’t have to accept that in satisfaction of his monetary award.
The wife responded that a provision in the following subsection did authorize the transfer: “The party against whom a monetary award is made may satisfy the award, in whole or in part, by the conveyance of property, subject to the approval of the court.”
So, with two subsections seemingly pointing in different directions, which one controls? Actually, the CAV rules that the two provisions don’t fight each other; they address different situations. And the court rules today that subsection D does authorize this transfer. True, the husband might not like to receive something other than a cashier’s check for his monetary award; but he can’t dictate the manner in which he’s to be paid. As long as the court approves the in-kind transfer, that’s a permissible means of satisfying an obligation like this.