A SHOT ACROSS THE BOW
[Posted June 24, 2014] In
the past six years, we’ve seen several appellate opinions that discuss the
authority of a trial court to defer a disposition in criminal cases. Defense
lawyers cling to the notion that trial judges have the discretion to delay
judgment and allow an otherwise-guilty defendant to sandpaper his sins;
prosecutors persist in asking trial judges to go ahead and rule already.
Three years ago, the legal
landscape shook when the Supreme Court decided Hernandez v. Commonwealth, 281 Va. 222, in which the court ruled
that a judge can still take a finding under advisement after noting that the
evidence was sufficient to convict. Hernandez
reversed a CAV judgment that had found no such authority to exist.
In the intervening years,
the justices have refined Hernandez
at least once, in Starrs v. Commonwealth,
287 Va. 1
(2014). Starrs still left that
judicial discretion open, even after a defendant signed a plea agreement that
the trial court accepted. In the interim, we've seen Court of Appeals
opinions that have expressed thinly disguised disdain for the Supreme Court’s rulings
on this issue, and the CAV has occasionally ruled against a criminal appellant anyway,
citing a perceived crack in the Hernandez
Today, a panel of the Court
of Appeals unanimously affirms a conviction in Harris v. Commonwealth.
When you read the procedural history of the case, you’ll have difficulty
figuring out a solid reason why this opinion is published. I see only one
such reason: This is yet another shot across the Supreme Court’s bow on this
still hotly contested issue.
Harris had, beyond question,
been convicted twice of driving after having been adjudicated a habitual
offender. He was arrested behind the wheel yet again in Chesapeake in 2012, one of a long string of
drivers who evidently just can’t conceive that they might not be allowed to
There was no challenge at
trial to probable cause for the stop; nor did the defendant contest the
evidence of his guilt, including the two priors. Instead, his lawyer asked the
judge to take the case under advisement. He noted that Harris’s suspensions
were for failure to pay fines, and he wanted to take a crack at paying off
those fines and getting his DMV abstract back to some semblance of normalcy.
lawyers are now wishing him the joy of that job; an abstract like that is a
bloody mess that would take major surgery, not some polish around the edges.
Still, the lawyer asked the judge to exercise his Hernandez-given discretion to defer matters, to at least allow
Harris to try. The prosecutor argued that the judge had no such discretion,
since the evidence of guilt was overwhelming and unchallenged. The judge
listened to the arguments and said this:
has had at least 11 years to undertake to try to get his
paid off and have his license restored; and I believe, quite
– although I appreciate [defense counsel’s] efforts on
of Mr. Harris, I believe his request comes far too late; and,
I am going to deny your request that I take the matter
advisement, but I certainly will note your exception to the
Careful readers will note
that the judge never affirmatively ruled on the disputed issue of whether he
had the power to defer or not; he evidently assumed that he had that power, and
simply decided not to defer. This is the ruling that’s at the heart of today’s
lawyers know the importance of the standard of appellate review, which I’ve
preached is case-dispositive in 80-85% of all appeals. Review for abuse of
discretion is fairly lenient; as long as the trial court selects an option
that’s within the range of available choices, there’s very little chance of
reversal. This ruling by the trial court was, in my view inarguably, within his
discretion. That didn’t stop Harris from appealing anyway, but the CAV panel
finds that the trial judge acted within his rights in saying no.
If that’s all there were,
this would be a routine unpub. Today’s opinion points out, quite correctly,
that while a judge may have the discretion
to defer, she doesn’t have the duty
to do so; that’s a judgment call on her part. From my perspective, I cannot see
an appellate court reversing a decision on the merits like this.
But there’s more. This
excerpt from the penultimate page of today’s slip opinion furnishes, in my
opinion, the reason why this case will land in Virginia Appeals Reports:
. we hold that a trial court’s narrow authority to defer a disposition does not
in any way diminish its greater duty to render a timely and lawful judgment
that faithfully applies the relevant facts and the controlling law. In short, a
trial court cannot simply acquit a defendant through an act of judicial
clemency (or judicial nullification), where the evidence proves the defendant’s
guilt beyond a reasonable doubt and where no statutory authority exists to
allow the trial court to dismiss the charge.
This, then, is the latest
shot across the Supreme Court’s bow. Commonwealth’s Attorneys across Virginia will cite this
language to trial judges for the premise that where the evidence is undisputed
and sufficient, they have a duty to convict promptly. Where the only “defense”
offered is an appeal for mercy, this language stands for the premise that
judges don’t have the authority to refuse to convict. Defense lawyers, in turn,
will try to find a way to distinguish their cases from this situation. (In my
opinion, the easiest way for them to do that is to mount at least a colorable
attack on the prosecution’s evidence. Harris’s lawyer evidently didn’t do that,
leading to this black-or-white situation.)
So, is this case headed
upstairs? I can foresee that Harris will try. But I seriously doubt that the
justices would grant a writ in this case, because the ultimate issue on appeal
is unassailable. The Supreme Court might take another case in which the trial
judge specifically ruled that he didn't have any discretion, but that isn’t
THREE RECENT AND NOTEWORTHY APPELLATE
[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
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
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
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
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.