The Court of Appeals on Tuesday, February 7, 2006, handed down two decisions in criminal cases.

In Schneider v. Commonwealth, the court affirms a trial court’s decision to permit the introduction of preliminary hearing testimony in a rape trial, where the victim testified freely in the preliminary hearing, but declined to do so again at the trial. Interpreting the Crawford v. Washington doctrine in the context of an unwilling witness, the court determines that the witness was “unavailable” to testify (applying the test outlined in Sapp v. Commonwealth, 263 Va. 415 (2002)). And since Schneider had the opportunity to cross examine the victim in the preliminary hearing, that satisfied Crawford’s requirement of prior cross-examination.

The key to this decision, and what distinguished it from Sapp, is this trial court’s urging the victim to testify, even ordering her to do so. The witness, who was 17 years old at the time of the trial, acknowledged on the abortive direct examination that she could be fined and sent to a detention home if she refused. The court ultimately did not jail the reluctant witness, although it ordered her held in lockup for 30 mintes. The appeals court finds that this was an appropriate means to attempt to obtain the testimony. The court rejects Schneider’s contention that the trial court should have warned the witness about possible consequences, since she already understood them correctly.

The other decision announced Tuesday is Young v. Commonwealth , a robbery case in which Young was sentenced to life in prison. He objected to the playing to the jury of a taped confession, in which he admitted to the crime at bar and other unrelated crimes. When inadmissible portions of the videotape were repeatedly played at trial, the trial court issed cautionary instructions to the jury, telling it to disregard evidence of “anything that’s not relavant to this proceeding today.”

The appellate court hands Young a minor victory on this point, agreeing that the cautionary instruction approach is an improper means to address errors of this magnitude. [There is a scene in my favorite trial movie, Anatomy of a Murder, that illustrates this point. The good-guy lawyer, played by Jimmy Stewart, makes an inappropriate comment to the jury. The bad guy, played by George C. Scott, objects and asks for a cautionary instruction, which he gets. “The jury will disregard that last comment,” the court solemnly intones. When Stewart sits down, his client, played by Ben Gazzara, asks him in a whisper, “How can they disregard what they’ve already heard?” “They can’t,” Stewart whispers back, “they can’t.”] But it takes away the joy of the victory by finding that, at least as far as the guilt phase is concerned, the error was harmless, since other evidence overwhelmingly established Young’s guilt.

But wait; there’s more. The court then holds that the error was not harmless when it came to sentencing. It therefore orders the case remanded for resentencing, so Young will get another chance to avoid life in prison. The interesting feature of this remand is that the error occurred during the guilt phase of the case, not in a separate sentencing phase.

Tuesday’s decision was not unanimous; the majority was headed by Judge Frank, joined by Senior Judge Bumgardner. Judge Humphreys dissents, finding that the cautionary instructions given by the trial judge were appropriate and sufficient to address the problem created by the playing of the videotape. Humphreys argues that two of the crimes were interrelated in such a way as to make the introduction of evidence as to the non-charged crime admissible, at least within the trial judge’s discretion. He does agree that evidence of other, completely unrelated, crimes had no place in this trial. He also argues that Young waived the right to complain about the cautionary-instruction approach on appeal, because he did not ask for a mistrial. This, in my humble view, may turn out to be a serious preservation issue for Young if the Commonwealth seeks rehearing en banc; when a party obtains a cautionary instruction as his remedy, it is hard for an appellate court to find that he really deserved more than what he asked for, and got.