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ANALYSIS OF AUGUST 5, 2008 CAV OPINIONS
[Posted August 6, 2008] Ah, those naughty folks in IT at the Court of Appeals of Virginia . . .
Normally the CAV posts published opinions to its web site on Tuesday mornings, usually by about 10:30 am. Yesterday, there was nothing up by 2:00 pm or so, so I assumed that no published opinions had been issued that day. Surprise! Three such opinions popped up somewhere around 4 pm, making it impossible, as a practical matter, for me to post same-day analysis of those three decisions. On the assumption that late is indeed better than never, here is a discussion of yesterday’s decisions.
Criminal law
Criminal appellants have been taking a beating in the CAV lately, but yesterday, they got victories in the two published criminal decisions. Both of these cases came out of Virginia Beach. The first, Anderson v. Commonwealth, involves convictions of robbery and conspiracy to rob a sporting good store in that city.
Anderson
worked at the store, and contrived a plan to rip the place off by faking an armed robbery. He and a coworker (who is presumably also now a former store employee) arranged for a third party to come into the store, pretend to rob Anderson, and then eventually split the loot with the insiders. And they pulled it off, too; the faux robbery entered the store, pulled an air pistol (which might have been a glorified BB gun) and pointed it at Anderson, who dutifully scooped tens and twenties into a bag and handed it over.
While it’s possible that the whole thing might have been caught on the store’s video cameras, police got all they needed, at first, by interviewing another store employee, one Rinehart, who wasn’t in on the scam. The robber, upon entering the store, glanced momentarily at Rinehart, then turned his back on him and drew the gun on Anderson, as described above. The robber never said or did anything toward the innocent witness.
The Commonwealth charged Anderson with robbery and with conspiracy (in planning the whole thing with his cohorts). There is little question that they’ve got ‘im on the conspiracy charge; the other store employee who was involved ratted him out. The real issue in yesterday’s opinion is the robbery charge. Robbery requires proof that the defendant used force or intimidation to get the loot. Since Anderson knew that he wasn’t really in any danger from the gun, just who had been threatened in this caper?
Prosecutors seized on the innocent store employee, Rinehart, contending that he was the victim. But the Court of Appeals notes the hole in that theory – Rinehart got merely a glance from the fake robber, and nothing more. The robber didn’t get any money by threatening or harming him in any way. True, Rinehart may have felt some fear as a result of the robbery, but that doesn’t make the threat the means by which the robber got the proceeds. The court accordingly reverses the robbery conviction.
The other criminal decision of the day, Middlebrooks v. Commonwealth, is a search and seizure appeal in a drug distribution case. In the (ahem) wee hours of a July morning at the Virginia Beach oceanfront, Middlebrooks had to go. I mean he had to go. His car was parked at a McDonald’s restaurant, but the store was closed for the night (unhelpfully, the drive-through lane was open). He accordingly answered nature’s call right there in the parking lot. Alas, a cluster of Virginia Beach’s Finest was in visual range, and one of the officers walked over and gave him a summons for urinating in public.
During that process, the officer asked if the car belonged to Middlebrooks. “It’s my people’s car,” came the cryptic reply. But the officer didn’t press it; he simply got Middlebrooks’s signature on the summons, and left.
Now, any sensible crook is going to get in his car, turn the key, and say to himself, “I reckon I got to light out for the Territory.” But Middlebrooks apparently never read The Adventures of Huckleberry Finn, so he inadvisedly stuck around. The same officer saw him, a few minutes later, sitting in the driver’s seat of “his people’s car.” He accordingly ran a license check and learned that the car was registered to Middlebrooks. That, combined with the officer’s perception that the resort area (between 19th and 21st Streets) was “a fishing hole for criminal behavior,” led the officer to investigate further.
[On a side note, as a resident of Virginia Beach, and as a former City employee, I can imagine the city fathers cringing at this description of an area that is so vital for the City’s tourism industry. This is not the kind of publicity that the Chamber of Commerce envisions for my city’s ability to lure Canadian families here, or to compete with those rascals down in Myrtle Beach. And in a published opinion, no less. But I digress.]
The officer went back to the car and asked Middlebrooks to step out. He asked for permission to search the car. Middlebrooks, who knew his rights reasonably well, said no. (Yes, you can do that.) But then a police sergeant told him, “I’m going to call the drug dog out. I’m going to have him run your car.” Checkmate, Middlebrooks thought. In response to a follow-up question, he admitted that there was an ounce of marijuana in the car. Police also found a scale, which probably tipped the balance – sorry! – in favor of a possession with intent to distribute charge.
Middlebrooks got himself a good lawyer, and that lawyer recognized that the police’s grounds for the interrogation were pretty thin. He moved to suppress everything that happened after Middlebrooks was asked to step out of the car, or at least everything that happened after the drug dog was mentioned. The trial court denied that motion, and Middlebrooks thereupon entered a conditional guilty plea.
The Court of Appeals reverses. It eschews any analysis of whether this was a valid Terry stop when the officer asked Middlebrooks to step out, since he hadn’t made any incriminating statements in the immediate wake of that event. The good stuff came after the dog was mentioned, so that’s where the court’s analysis starts. And the court concludes that these circumstances did amount to a Terry stop, rather than a consensual encounter, as the prosecution had urged. That’s because, when the police mentioned the dog, “no reasonable person would have felt free to leave.”
While consensual encounters require no suspicion whatsoever, Terry stops have to be based on some articulable and reasonable suspicion of criminal behavior. While Middlebrooks was admittedly in an allegedly high-crime area (if you listen carefully, you can hear the Chamber of Commerce groaning again), that isn’t enough to justify a stop; the Supreme Court so held just four months ago. That leaves the police with just one suspicious circumstance – Middlebrooks’s alleged lie about the ownership of the car. But that doesn’t indicate that he’s involved in criminal activity, so the conviction is reversed. Technically, the case is remanded for a new trial, if the Commonwealth wants to go through with it. But with no marijuana and no confession, I think we can agree that this case is concluded.
Domestic relations
Back in late January, a panel of the Court of Appeals decided the case of McKee v. McKee, which presented three principal issues. A divided court ruled partially in favor of the husband and partially in favor of the wife, with Judges Clements and Haley in the majority and Judge Humphreys dissenting. But the court granted en banc rehearing the next month, and now we get the court’s final word on the matter: The always persuasive Judge Humphreys manages to reel in all of his colleagues except the original panel majority. That means that the wife gets a victory by an 8-2 margin on the only two issues decided yesterday.
That’s right; two. The third issue (whether some of the wife’s claimed expenses were speculative) produces an impasse at the court, as Judge Frank did not participate in the case and the other ten judges are split 5-5. The practical effect of that is that this issue is affirmed without discussion, and this opinion can’t be cited as authority on this point.
On the other two, the court unanimously affirms the trial court’s decision to include wife’s mortgage in her monthly expenses. Husband had argued that the language of the separation agreement – by which wife got the marital home, assumed the mortgage, and held husband harmless for that mortgage – meant that she couldn’t claim that as an expense in calculating spousal support. The court rejects that contention, saying that the indemnity relates to claims made by the mortgage company (such as for a default in the mortgage payments). The court also points out that wife refinanced the mortgage that was in effect when the agreement was signed, effectively removing husband’s name from the obligation.
The other issue is the one that produces the 8-2 split. The majority rules that wife did not have an immediate obligation to secure income to reduce her support needs. Years ago, before the couple’s children were born, wife had worked as a respiratory care provider. Husband brought in a vocational specialist who testified that such workers were in demand, and made around $40,000 a year. But wife didn’t go for a job like that; instead, she put her name on a list to be a substitute teacher at the children’s school.
A closer look at the facts reveals that there are warts on both parties’ legal positions. Wife couldn’t exactly go back to work as a respiratory care provider because, in the interim (the 15 years while she was CEO of the house), Virginia had imposed a regulatory framework on such providers, requiring that they be licensed. Wife wasn’t licensed, and there was no testimony as to what she would have to go through (for example, continuing education) to get certified. That means that she could not take such a position, making the expert’s testimony speculative. But the majority holds only that wife didn’t have to go to work immediately when husband left her. The dissent points out, plausibly, that there was a delay of twenty months between husband’s departure and the hearing, and that ain’t exactly “immediately.” Indeed, the majority doesn’t put a limit on the length of time (understandably, since that will vary on a case-by-case basis) the wife can remain either unemployed or underemployed.
In the end, the majority hangs its collective hat on the burden imposed on the party seeking to impute income (here, the husband) to prove the need to impute, and the amount. The trial court had found the expert’s testimony not to be credible, so he failed in that duty.
Domestic relations practitioners should pay careful attention to this opinion for the way in which it explains, and ultimately distinguishes, the court’s early decision in another case involving the question of whether the support calculus can include consideration of one spouse’s mortgage payment. That earlier case is Gamble v. Gamble, 14 Va.App. 558 (1992).
CHANGING OF THE GUARD AT SOLICITOR GENERAL’S OFFICE
[Posted August 5, 2008] Virginia will have a new Solicitor General, effective September 1. Current SG Bill Thro will move to a new position at Christopher Newport University in Newport News, as University Counsel. The new Solicitor General will be Bill’s current Deputy, Stephen McCullough. Steve will take over the role of the Commonwealth’s principal appellate attorney, and will report to the Attorney General. The Solicitor General only appears in appellate courts (principally the Supreme Courts of Virginia and of the United States; but also the Fourth Circuit and the CAV) arguing on behalf of the Commonwealth in important cases, usually those involving constitutional challenges to Virginia law. (As a consequence of that narrow focus, comparatively few appeals involving the Commonwealth are handled by the SG; most are argued by, say, Assistant or Deputy Attorneys General.)
I offer my personal congratulations to both men. Steve takes on the vital responsibility of shaping the course of crucial appellate litigation that affects each Virginian. And Bill tackles a new role on behalf of the rapidly growing CNU. (As a nice fringe benefit, he also gets to cut down on his commute, since he lives on the VirginiaPeninsula, much closer to Newport News than to Richmond.)
ON THE RIGHT TO COUNSEL [Posted August 1, 2008] One of the fringe benefits of being in the ABA’s Council of Appellate Lawyers is a subscription to The Judges’ Journal, the periodical published by the ABA’s Judicial Division. The CAL is technically a part of that division, and that membership sometimes leads to some awkward correspondence, when I get bulk mail addressed to “The Hon. L. Steven Emmert,” a title I am not likely to see legitimately in this lifetime. The summer 2008 issue of the Journal arrived this week, and I have just read a very thoughtful article by Justice Earl Johnson, Jr., who retired last year from the California Court of Appeal. Justice Johnson’s theme is that indigent parties should have a right to court-appointed counsel, not just in criminal cases, but in important civil proceedings, too. Note that he doesn’t advocate an attorney for each and every court appearance, or even each and every case; specifically, he cites with approval a 2006 ABA resolution that calls for such appointed counsel “in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health[,] or child custody . . ..” You probably know that there is no right to court-appointed counsel in civil cases. You may not know that the US Supreme Court rendered just such a ruling in a 1981 case, essentially sealing off the right to appointed counsel to criminal proceedings alone. But the context of that ruling, as explained by Justice Johnson, is worth noting. In 1942, the Big Supremes ruled that there is no right to a court-appointed lawyer in criminal cases. Betts v. Brady, 316 US 455 (1942). It took only 21 years for the Court to reverse itself on this point, in the celebrated case of Gideon v. Wainwright, 372 US 355 (1963). But eighteen years later, the Court held, in the child custody case of Lassiter v. DSS, 452 US 18 (1981), that no such right existed in civil cases. The Lassiter decision was 5-4, as so many decisions seem to be on the increasingly fractured Court of the 21st Century. But as the justice points out, the facts of the case (which he describes as “the weakest possible fact situation for declaring such a right") seemed to presage the ultimate decision, if only as a matter of practicality: “Lassiter was a double murderess who hadn’t seen her children for years and wouldn’t be able to be a parent to them until her earliest possible parole date, by which time they were adults. It seemed highly unlikely any lawyer, even a Clarence Darrow or his equivalent, could have won the case [below] . . ..” Despite this overwhelmingly problematic fact pattern, four justices voted to extend a right to counsel to Lassiter. One can only wonder (as Justice Johnson does) whether the US Supreme Court would react differently if a more compelling case came along. Given the current composition of the Court, my initial reaction is that I doubt it. But that doesn’t mean that the issue is dead. The other thread of the justice’s argument is that we are seriously lagging behind the rest of our partners in civilization in refusing to recognize this right. Germany, he notes, recognized it back in ’77. By the way; that’s 1877. France did so 25 years before that, at a time when Victor Hugo was probably just starting to formulate Les Miserables in his imagination. And in 1979, just two years before the Lassiter decision, the European Court of Human Rights had ruled that the Irish legal system had to provide a free lawyer, based on the guarantee of "a fair hearing," to an indigent woman who wanted a legal separation. The Lassiter decision mentions nothing about that case, or any of the other nations’ rulings. In America, we are a confederation of sovereign states, constrained only by the federal constitution in what rights must be provided or cannot be denied. So what’s the state of affairs here in Virginia? At least at the appellate stage, Virginia now provides some succor for indigent parties. Last year, the Supreme Court approved a program providing for panels of volunteer attorneys willing to accept assignments (note – not appointments; there is a difference) to cases involving unrepresented indigent parties (appellants or appellees). That is an important step toward enabling the court to ensure that both sides of a case are professionally presented for decision, presumably avoiding a whole lot of bad law. [If any of you would like to volunteer for these panels, contact me and I’ll make that happen.] But does this program go far enough? Two considerations suggest that it might not. First, the appointment can be made from these panels only after the court decides to grant a writ. At the petition stage, there is no provision for appointed or assigned counsel. Overall, the writ-granted rate in civil cases usually runs to about 21 or 22 percent; the rate for pro se appellants is probably much lower than that. How many potentially meritorious appeals never mature to the merits stage because they are not presented in a professionally prepared petition for appeal? I cannot begin to guess. Second, and implicating vastly more resources, is Justice Johnson’s principal thesis: Court-appointed trial counsel for indigent parties in civil cases. As any good appellate lawyer will tell you, if the trial record is a disaster, there’s not much she can do with the case. The seeds for appellate victory are always, always planted in the trial court, and that point is where the assistance of counsel is most vital; where the absence of counsel can be most fatal. Justice Johnson’s views raise the troubling possibility that Americans may regard that their indigent citizens simply aren’t worthy of the kind of legal protections afforded to those in other nations. Those countries have based their policies on guarantees of things like “fair proceedings,” or of “equal access to justice,” in their fundamental legal documents. In Justice Johnson’s view, we have a couple of phrases like that. See if these sound familiar: “Equal protection of the laws.” “Due process of law.” (We even have some language like that in the Constitution of Virginia.) Europeans, at least, think that noble words like that should be interpreted broadly. Regardless of what the nine Robes say in Washington, our Virginia appellate courts could, based on the Virginia Constitution, declare that there is such a right in our courts. (The Supreme Court of Virginia, not the one in Washington, is the court of last resort on questions of Virginia law.) But that does raise one practical consideration: Virginia’s contemporaneous objection rules, Rule 5:25 and Rule 5A:18, require that an issue be raised in the trial court before it will be considered on appeal. Few pro se litigants are likely to have the presence of mind (not to mention the legal ability) to suitably raise this issue in a trial court. The question becomes whether either appellate court will entertain such an argument, raised for the first time when an appellate lawyer steps up to the lectern and assails the way we do business here. Given the importance of this issue for defining the kind of society we will have – and that history will judge us to have had – I earnestly hope the answer is yes.
ANALYSIS OF JULY 29, 2008 CAV OPINIONS [Posted July 29, 2008] The Court of Appeals gives us six published opinions today. We get one decision each in administrative law and Workers’ compensation, plus four in criminal cases. In the last category, the Attorney General’s Office once again gets a clean sweep of the decisions, as all four sets of convictions are affirmed. Administrative law Today’s opinion in Culpeper County v. Technical Review Board won’t exactly come as a surprise to many legal observers. But there are sufficiently few published admin law decisions that you can’t argue with the court’s decision to publish this one. It deals with the narrow question of just who gets to set the qualifications for local building code inspectors. CulpeperCounty’s Board of Supervisors adopted a resolution back in 1991 that required all such inspectors to be engineers or architects. Somehow, the County Building Official didn’t know about that detail when he took office in 2003, so he authorized inspectors who were not in those fields. When he found out about it, he asked the board to reconsider; this would presumably have given him much greater flexibility in naming inspectors. But the board said no, so he had to decertify one of the inspectors. That inspector appealed the decertification, and got the action rescinded. This reversal was based on the argument that the Building Official, not the board, had the right to set certification requirements. Today, the Court of Appeals reverses, pointing to clear statutory language that authorizes a building official to delegate some of his duties “subject to any limitations imposed by the locality.” That language pretty clearly indicates that the Board of Supervisors can impose limits on just who will be certified, and upon that basis, the board wins the appeal. Workers’ compensation In contrast, I am unable to discern with confidence why Herbert Clements & Sons v. Harris is published. The employer sought a ruling cutting off the employee’s comp benefits, based on the assertion that he had not proved residual incapacity. It also sought to avoid paying for some purely diagnostic tests. I recall reading last week about a sort of challenge in which authors are tasked to write a story that’s limited to just six words. The most famous entry was from Hemingway, who tells a tragic story in these few words: “For sale: baby shoes, never worn.” (My own entry might be the well-worn, “Too soon old; too late smart.”) If I had to describe this opinion in that context, I’d probably put it this way: “Credible evidence supports the ruling below.” One by one, the court analyzes the three contested issues and finds that there was evidence in the record to support each ruling. The only reason I can discern for the publishing of this ruling is that it collects and approves several previous full commission rulings that hold that an employer can be liable for the cost of diagnostic testing. I don’t practice enough in this field to know whether this was regarded as an unsettled question, but if it was, today’s opinion ends the debate. Criminal law I have to start my analysis of criminal cases with the shortest opinion of the day; not because it’s short, but because it has a Class A zinger from the court directed to an appellant who probably should have thought better of the argument he was making. Pilson v. Commonwealth involves a conviction for driving after having been adjudicated a habitual offender. Since Pilson had been convicted of this crime before, he had a mandatory minimum jail term to serve. That didn’t stop him from asking the sentencing judge for leniency, in the form of home electronic monitoring in lieu of incarceration. “No way,” the trial judge responded. Pilson, undeterred, asked the judge to “let the sheriff impose” home monitoring. “I can’t do that when you have a mandatory minimum sentence,” the judge responded. But in the sentencing order – which all careful practitioners will recognize as the only thing that counts – the court subtly changed its ruling to say that it “did not have the authority to authorize the Sheriff” to send Pilson home. As it turns out, either the judge or the sheriff can place a convict on home monitoring, but the sheriff’s authority to do so doesn’t come from the judge; it comes from the Code. Technically, therefore, the court’s order was correct, in that the judge couldn’t “authorize” the sheriff to take this step. (The first question, by the way, is answered today with all the subtlety of a slammed door: The court emphatically affirms the ruling that home monitoring isn’t available when there’s a mandatory minimum sentence.) Now, I promised you a zinger, and I keep my promises. Noting that Pilson was released on bail after sentencing, and remains free on that bail, the court observes that he has never asked the sheriff to place him on home monitoring. That makes that question purely advisory, and the court declines to wade in on such an issue. Nevertheless, a careful reader may be able to discern a glint of the court’s thinking on the ultimate merits of such release from this passage: “Nor has the sheriff decided, assuming he has such authority, whether Pilson would be an appropriate candidate to be released from jail into the program. This discretionary decision would require consideration of Pilson’s prior criminal record which includes, among other things, convictions for failure to appear, felonious escape, eluding police, resisting arrest, assaulting a police officer, escape from custody, hit and run, assault and battery, destroying private property, trespass, breaking and entering, unlawful wounding, drunk driving, drunk in public, curse and abuse, several grand and petit larcenies, and various probation violations. Perhaps the sheriff might nonetheless find it in the public’s interest to release Pilson. We are reluctant to offer a prediction one way or another.” Yeah, right. (Kudos to Judge Kelsey, a master of understated irony, for the bon mot of the day.) There are some interesting evidentiary rulings in Kilby v. Commonwealth, which involves multiple convictions on child sexual abuse charges. The three children in the case were Kilby’s grandchildren, aged 11, 7, and 5 at the time of the offenses. We start with a waiver issue that turns out not to be a waiver at all. The prosecution offered a statement by a detective, who had interviewed the children and had received reports of the abuse. Kilby objected to the hearsay nature of the evidence; this objection was overruled and the evidence came in. Kilby later called the same detective to testify to show that one of the children had made a prior inconsistent statement. Ordinarily, when you object to evidence and later introduce evidence of the same character, that constitutes a waiver of the objection. But in a thinly-sliced legal ruling, the court finds today that Kilby’s original objection could still be considered, since his later offer of evidence was for a different purpose (one who offers a prior inconsistent statement cannot offer it as affirmative proof of the underlying fact). Thus, Kilby dodges an appellate bullet. But not for long; considering the argument on its merits, the court finds that the evidence was properly admitted for one of two purposes. And since this was a bench trial, the trial judge is presumed to have disregarded the improper aspect of it, as substantive evidence. The court finds a couple of procedural waivers under Rule 5A:18, that relentless butcher of appellate hopes and dreams. Both of those arguments die predictable deaths after Kilby failed to object to the substance at trial. In one instance, the prosecutor asked a question to which Kilby had objected. The trial court, implicitly sustaining the objection, told the prosecutor, “You may wish to rephrase that.” The prosecutor did so, and then Kilby sat in silence as the witness answered the rephrased question. That, as we know by now, equals one waived objection; if Kilby wanted to preserve his objection to the second question (and judging from the issue on appeal, he did want to preserve it), then he had a duty to continue to press his objection. Remember this: If you object to the substance of a question, then just getting your opponent to rephrase it won’t suffice. You need to finish the job by renewing the objection, and telling the trial court why even the rephrased query won’t do. Last year, the Court of Appeals ruled that an affidavit from the Delaware Secretary of State could be introduced into evidence over a Crawford objection, because it didn’t constitute testimonial hearsay. In that case, the court found that the affidavit, which showed that a given corporation was not registered in that state, was a result of a search of “a neutral repository of information,” so a defendant could not insist on cross-examining the custodian of documents. (He could have subpoenaed the Secretary if he wanted, I suppose, but that didn’t happen.) Today, the court extends the reasoning of that decision to a similar affidavit, in Dickens v. Commonwealth. The affidavit in today’s decision indicated that Dickens had failed to register as a sex offender, as required by statute. (And this time, the affidavit was from within the Commonwealth, sent by the State Police in Richmond to the courtroom in Norfolk.) Dickens argues in vain that he should be permitted to confront (technically, it’s “be confronted by”; there is a difference) the person who thus “accused him. This falls on – well, not deaf ears, because the judges do listen to the argument. But “unsympathetic ears” should suffice as a metaphor, since the panel today unanimously rules that the affidavit is not testimonial hearsay. The court also finds that the document is an official record, and admissible under that exception to the hearsay rule as well. Finally, the court considers whether the introduction of the affidavit violated Dickens’s Fourteenth Amendment rights. (It doesn’t violate his Sixth Amendment right of confrontation, because this is a probation violation proceeding, not a criminal trial.) The court falls back on a line of cases that hold that a defendant gets a diminished set of legal rights in probation proceedings – certainly not the equivalent of those a criminal defendant would enjoy. That distinction even allows for the introduction of evidence that would be inadmissible at trial. Here, the Court of Appeals acted within its discretion in admitting the evidence, given the probable reliability of the statements in the affidavit. Anybody who handles criminal litigation knows about the US Supreme Court’s ruling in Crawford v. Washington, in which it held that the Sixth Amendment forbids the use of testimonial hearsay in criminal cases. Subsequent litigation has focused on just what constitutes testimonial hearsay. Today, the Court of Appeals decides Caison v. Commonwealth, involving the use of an audio recording of a 911 call. Caison and a man named Green got into a fight pretty much as soon as they were introduced by two mutual friends. Green punched Caison, after which Caison fled. Green chased him and eventually caught him. During this second encounter, one of the men pulled a knife; Caison stabbed Green four times with the knife and immediately ran away. The two women who had introduced the men came upon the scene to find Green bleeding and unconscious. One of them tearfully called 911, evidently on a cell phone, and described the situation to the dispatcher. During the call, the caller identified Caison as the stabber, described him, and told the dispatcher which way he had fled. The dispatcher gave some first aid directives and evidently stayed on the call until rescue personnel and police arrived. Green later died of his wounds, and Caison was charged with manslaughter. The prosecution offered the 911 tape into evidence, and the trial court admitted it over Caison’s Crawford objection. Today, the Court of Appeals affirms that ruling, citing a US Supreme Court case (post-Crawford) holding that a 911 tape, under pretty much the same circumstances as we have here, was non-testimonial because the purpose of the call, and the information conveyed in it, was to deal with the existing emergency, not to record one’s statement for evidentiary purposes. With a pedigree like that from Washington, this doctrine gets a predictable seal of approval from the Court of Appeals, and Caison gets plenty of time in prison to mull over his fortunes. There are a couple of other rulings in today’s opinion that merit some mention here. The court defers to the trial court’s finding that the tape was not more prejudicial than probative, and turns aside Caison’s sufficiency challenge, noting that the factfinder had the right to disregard his testimony as self-serving. This latter ruling scotches many sufficiency appeals, as the court will afford the factfinder (whether that’s the judge or jury) the right to decide which witness to believe.
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