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VTLA MOVES 2009 CONVENTION TO WILLIAMSBURG
[Posted August 27, 2008] The Virginia Trial Lawyers Association’s annual convention is a smorgasbord of educational and social events; each year, attendees can satisfy a full year’s MCLE requirements in one weekend, generally at a very nice resort. The 2009 convention had been slated for The Greenbrier, but the association has moved it to Williamsburg, to mark the 50th anniversary of the founding of the group in that city.
Despite the “Trial” part of the association’s name, the convention almost always features at least one appellate presentation. Justice Agee (now Judge Agee, by virtue of his shameful abandonment of the state bench, to go federal on us) addressed the convention in 2008; Justice Keenan did the same in 2006, as did Justice Lemons in 2004 and 2005. And Judge Humphreys of the Court of Appeals regularly participates in a very enjoyable luncheon program, involving two other judges, lawyer/comedian Bob Battle, and a whole lot of hilarious war stories.
The change of venue also requires a change of date; the program will begin on Thursday, March 12, and will conclude on Friday the 15th. You don't have to be a VTLA member to attend (but it helps, as members get a preferred rate).
ANALYSIS OF AUGUST 26, 2008 CAV OPINION [Posted August 26, 2008] We get one published opinion from the Court of Appeals today, a criminal law ruling that will be of considerable comfort to a whole lot of police officers. It’s a search and seizure case called Jones v. Commonwealth. In the balancing act between prosecutorial interests and the rights of citizens to be free from unreasonable searches and seizures, it matters what rights are being considered. If the question is simply “How do we get these crooks off the street?” then the courts often cast their lot with the defense. But when the question becomes “How do we protect the lives and safety of police officers?” the calculus changes. Court will always be sympathetic to legitimate police perceptions of danger, and every jurist would be happy if the words officer down faded from our vocabulary. That’s been true all the way back to the grand-daddy of the investigative stop cases, Terry v. Ohio, 392 US 1 (1968). In that case, the Supreme Court wrote that “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Virginia appellate opinions have echoed that policy statement, including this line from Landsdown v. Commonwealth, 226 Va. 204 (1983): “The law does not expect a police officer must gamble on turning away from a possible danger and chance taking a bullet in the back.” Against this backdrop, the Court of Appeals takes up Jones’s claim that police officers unreasonably seized him and searched a black bag that contained drugs. Some time before midnight one night in 2006, Jones drove his car up to a motel near I-95 and parked there. But he didn’t get out; he just sat there, looking down into his lap for about 15 minutes. No one approached the car, but a couple of narcotics detectives were watching form a short distance away. At this point, there’s nothing inherently suspicious; if you would ask my teenage daughter what she though he was doing, she’d venture, “He’s texting his friends, of course.” Still, the detectives knew that this motel was a frequent transfer point for drug transactions, given its proximity to the Interstate. They decided to go over and ask Jones what he was doing. Question 1: Can they do that? According to well-established precedent, yes, they can. There is nothing unconstitutional about an officer’s initiating contact and asking questions; in such a circumstance, the suspect is free to ignore the officer, slap on a pair of I-Pod headphones, or simply walk away. But Jones did none of these things. Instead he reached down into the darkened interior of the car, between his feet. (Memo to crooks: Never, ever (1) lie to your lawyer, (2) tell off your trial judge, or (3) reach into a darkened area during an encounter with the police.) The detective told Jones to keep his hands in sight, and he initially complied. But evidently Jones didn’t get the memo recited above, because he reached down again. The detective told him, “Don’t reach for the floorboard. If you reach for the floorboard, I’m going to assume you have a gun.” Alas, this warning did no good at all; Jones reached down a third time, and the officer backed up, drawing his gun. Jones then raised his hand, holding a small black bag. Matters only got more problematic when the other detective, standing by the passenger side of the car, noticed a Bowie knife in the back seat, within Jones’s easy reach. One of the detectives orders Jones out of the car, and eventually he does that, tossing the black bag onto the seat. Were you expecting gunshots there? Well, I’ll spoil the suspense by telling you that no shots are fired during this exchange. But that wasn’t the way the detective envisioned things; he genuinely feared for his life, and told the trial judge so. It turned out the bag didn’t contain a gun at all; just the following perfectly innocent contents: a digital scale, plus cocaine and marijuana. You know; routine stuff. The issue in this case is whether the police improperly seized Jones, and whether they were justified in looking into the bag after Jones tossed it aside. The first question gets the Terry stop treatment, and the court concludes today that the officers acted within the scope of their discretion. Remember where we started this discussion, with the courts’ deference to issues of officer safety? That consideration trumps Jones’s claim that the police had no right to seize him (which occurred when he stepped out of the car). Personally, I think that if he had simply declined the detectives’ initial requests, then they couldn’t have touched him; there is nothing illegal about sitting in a car in a motel parking lot. But by escalating the officer-safety situation, Jones enabled the detectives to take reasonable steps to ensure their own safety. Just like it says in Terry. Today’s ruling is a methodical, instructive walk through this area of Fourth Amendment jurisprudence. The court affirms Jones’s convictions by holding that the officers did not improperly seize him and (by an entirely separate analysis) did not unreasonably search the bag.
ANALYSIS OF AUGUST 19, 2008 CAV OPINION [Posted August 19, 2008] The Court of Appeals today addresses for the first time a novel and interesting question about the doctrine of transferred intent in a criminal case. Today’s ruling comes in Blow v. Commonwealth, which must have made some news last year in the Richmond area. November 26, 2007 was a nightmarish day for the Blow family. Jerry Lemone Blow Sr. got into an argument with his wife that turned violent; the man attacked his wife with a kitchen knife, stabbing her several times. Worse, this all happened in full view of the couple’s daughter (whose age is never mentioned in the opinion, but I infer she is a juvenile). The daughter came to aid of the mother, jumping on her father’s back and trying to grab the knife. In the process, the daughter’s hand was sliced open. Blow fled the home and eventually led police (from three different jurisdictions) on a 100 mph chase on Interstate highways in the greater Richmond area. The chase eventually ended when Blow ran his car into a trooper’s vehicle at 60 mph, causing a collision in which the trooper was injured. Prosecutors stacked charges against Blow like so much cordwood. He was eventually convicted of malicious wounding of his wife and eluding a law enforcement officer, plus malicious wounding of his daughter and unlawful wounding of a law enforcement officer. The former two convictions were not appealed, and today’s opinion only addresses the latter two. The issues relating to the unlawful wounding conviction are straightforward, and the Court of Appeals decides it by applying well-established precedent, including a rolling roadblock case from a 2000 decision. The court finds that the Commonwealth proved that Blow had an intention to injure the officer when he rammed into him, causing the collision. But that’s not why today’s ruling is published. This is a published decision because of the ruling on the conviction of malicious wounding of the daughter. Malicious wounding requires intent, and Blow argued that he never meant to hurt his daughter. The prosecution convinced the trial court to apply the doctrine of transferred intent, which provides that if you try to injure Person A, and inadvertently thereby injury Person B, then your intent is transferred to B. Otherwise, some assailants would get off scot-free simply because their aim was bad. But Blow had an ingenious argument in response to that. He contended that the rationale for applying the transferred intent doctrine, as expressed above, doesn’t apply where the assailant actually succeeds in injuring his intended victim, as happened here. This is a point on which courts in other jurisdictions have split: Some find that the doctrine should not be applied, to avoid converting one crime into two, while others apply it, believing that the assailant should be responsible for “collateral damage” in a situation like this. Today, the Court of Appeals sides with what it describes as the majority view, and holds that the trial court properly applied the doctrine to this case. In doing so, it cites one particularly pithy quote from a Connecticut decision; that quote is worth repeating here: “Human beings are not fungible. Therefore, a separate injury to each constitutes a separate crime, and the law does not give the defendant a discount on the second and subsequent victims of his intentional conduct.”
GOVERNOR PROMOTES MILLETTE, POWELL TO APPELLATE BENCHES
[Posted August 15, 2008] Governor Kaine has today named Court of Appeals Judge Leroy Millette to the Supreme Court, filing the vacancy that was created when Justice Steve Agee left to head across Capitol Square to the Fourth Circuit. The Governor had appointed Millette to the CAV last year, and the General Assembly elected him to a full-time position on that court in February.
The Governor also elevated Chesterfield Circuit Court Judge Cleo Powell to the Court of Appeals to fill Judge Millette’s seat.
Keep in mind that these appointments have limited shelf lives; they are only effective until thirty days after the next legislative session convenes in January. The General Assembly can elect either or both jurists to these posts, but it doesn’t have to approve either. This year, appellate vacancies in the Commonwealth fell victim to partisan infighting in the legislature, as the Democratic Senate and the Republican House were unable to agree on candidates to replace Justice Agee (not to mention thirty or so other benches that sat vacant due to the political impasse). At least one Republican in the House has (according to a recent report in Virginia Lawyers Weekly) implicitly suggested that the body might not take kindly to any gubernatorial appointment.
But in reality, what’s a Governor to do? The Constitution specifically directs him to make the appointment if a vacancy occurs outside a legislative session. Governor Kaine has, in my humble view, acted responsibly in declining to saddle Virginia’s appellate courts with a shortage of jurists. Now the ball is in the legislature’s court; we can only hope that the warring parties can settle their differences by January.
ANALYSIS OF AUGUST 12, 2008 CAV OPINIONS [Posted August 12, 2008] History is made today, as the Court of Appeals grants a writ of actual innocence. This, to my knowledge, is the first such writ ever granted in Virginia. Criminal law We never do quite find out what the weapon was, but Darrell Andrew Copeland was convicted last year of possessing it. He was sentenced (for possession of a firearm by a convicted felon) just over a year ago. And then, providence intervened, as the Department of Forensic Science determined that it was not a firearm after all. (Recent Virginia decisions limit the definition of firearm to a weapon that expels a projectile “by means of explosion.” Thus, a .357 Magnum is a firearm, but a slingshot isn’t.) Evidently it was too late to appeal, so Copeland tried the previously always-futile route of a petition for actual innocence. He got an unforeseen ally in his quest for liberty, as the Attorney General conceded that it wasn’t a firearm; the AG even joined in Copeland’s petition for relief. The Court of Appeals grants the petition today, in Copeland v. Commonwealth, though not before a good deal of qualifying, cautionary language. The short order recites that the courts “have no obligation to accept concessions of error (translation: Just because both parties agree, doesn’t mean that we have to agree, too), and it points out the judges’ reluctance to use this writ as a substitute for habeas corpus (translation: Don’t get excited just because we granted this one). But in the end, the writ is granted, and Copeland an expungement; though not his liberty; he is evidently serving a lengthy prison sentence for, among other things, carjacking. Attorneys looking to this order for guidance should be careful to note the unique circumstances of this case. It isn’t every day that the Commonwealth agrees to your requested relief, and while that isn’t an absolute requirement for such petitions, it should give you an indication of just how rare this kind of relief will continue to be. Let me emphasize something here. The court’s grant of this writ comes only after a great deal of judicial throat-clearing. Reading between the lines, I sense that the judges are doing what they feel they must, not necessarily what they want to do. It’s not that these particular jurists (Judges Kelsey and Petty, plus Senior Judge Bumgardner) think the relief isn’t justified; it’s because I sense they don’t want to open the floodgates to these petitions by giving false hope to the legions of prisoners who are actually innocent. (Just go and ask the inmates; they’ll tell you they didn’t do it.) I repeat, there is a remarkable and unusual set of circumstances in this case, and most petitions for writs of actual innocence are still going to be denied. The court also decides one conventional appeal (as opposed to the actual innocence petition, which invokes the court’s original, not appellate, jurisdiction) today. That case, Bandy v. Commonwealth, is the latest in a string of Terry stop cases; that series illustrates just how narrow are some of the judgment calls that the courts are being called upon to make. Here’s a lightning refresher course on citizen-police encounters. There are three types of contact that a suspect can have with the police. The first is a consensual encounter, which requires no suspicion whatsoever. Here’s an example of a consensual encounter that can result in a conviction despite no advance knowledge by the officer that criminal activity is afoot: A man with a box in his hands and a puzzled look on his face walks up to a police officer and says, “Excuse me, officer; I’m lost. Could you please direct me to 1234 Maple Street? I’ve got to deliver this package of crack cocaine, and then I’m supposed to pick up a big ol’ wad of tens and twenties.” Obviously, this fellow is headed either to prison or to The Home for the Terminally Stupid; the fact that the police didn’t suspect him beforehand is irrelevant. The second type of encounter is a Terry stop, sometimes described in the legal literature as a brief investigatory detention. That requires a specific, articulable suspicion by the officer that criminal activity may be afoot. The third is arrest, which requires probable cause to believe that the accused has committed a crime. The recent series of Terry stop cases have all focused on the point at which the encounter escalates from the first stage to the second. If a police officer searches someone (without the searchee’s consent) during a consensual encounter, then the courts will usually suppress any evidence thus found. In order to warrant any type of search, even a brief pat-down, the police must have some objective basis to do so. Bandy’s first mistake was to choose his companions and his environs poorly. He and a companion went to a neighborhood in Newport News one afternoon and knocked on a door. When there was no answer, the two men walked away from the house, but not toward their car; they started strolling down the street. I neglected to tell you three things about this neighborhood. First, the whole place is owned by the city housing authority, presumably to provide low-income housing. Second, the police regard it as a “high-drug, high-crime area.” (I didn’t make up this description; that’s what it says in the opinion.) And third, the authority has put up “No Trespassing” signs to ward off interlopers. I guess there’s a fourth fact you should know – a police officer watched the two men as they approached and then left the house. He thought their behavior to be suspicious, so he called another officer to help him investigate. When the two officers approached the two visitors, Bandy’s companion sensibly tossed a bag of crack into a nearby bush. That gave the companion the right to remain silent. So far, Bandy hasn’t done anything criminal that we’re aware of. One of the officers said to him, “Pardon me bro, I need to speak with you for a minute if you don’t mind,” to which Bandy replied, “yeah, sure.” (Subtle hint: This is still a consensual encounter.) When the officer asked who Bandy was visiting, he gave evasive answers, and wasn’t even able to point to the exact location he was seeking. Nor could he express where he had come from. In addition, he appeared nervous to the officer, and kept putting his hands in his pockets, despite the officer’s request that he keep his hands out in the open. Now the officer is starting to get concerned that Bandy will either draw a weapon or try to flee. He tells Bandy that he’s going to pat him down for weapons (in case you hadn’t noticed, this just turned into a Terry stop). During that pat-down, the officer felt a few items in Bandy’s pocket that were “hard and rocky.” Those would be the crack cocaine, of course. The turning point of this appeal, as I broadly hinted above, is whether the officer had an articulable suspicion to pat Bandy down for weapons. Caselaw clearly supports an officer’s right to conduct a pat-down where he has reason to suspect that his suspect may have a weapon; this is Officer Safety 101, and the courts generally defer to the officer in such circumstances, so long as there is a plausible reason behind the suspicion. In this case, the Court of Appeals finds today that the officer was justified in the pat-down, and thus affirms the conviction. The court goes to great lengths to explain the justification for this conclusion. It notes that Bandy was in the presence of a crook (his accomplice, who had ineffectively tossed aside his own crack when the officers approached). It then concludes that he was trespassing – or at least the officer reasonably suspected that he was. Finally, the court reasons, his evasive answers could have led the officer to suspect that Bandy was committing a crime. The court then goes on to hold that the officer “had reason to believe that Bandy was armed and dangerous.” This conclusion springs from his presence on a “high-drug, high-crime area” and his nervous appearance while being questioned by the police. There is one additional holding here that will interest criminal practitioners. The court specifically approves the officer’s method of conducting the pat-down, holding that he did not manipulate the cocaine in order to determine what it was. (Once an officer determines that an object is not a weapon, he can’t keep checking it out to figure out what it really was. Only if his first sense-impression identifies the object as contraband can he investigate further.) This opinion is handed down by a unanimous panel; Judge Humphreys writes the opinion, joined by Judges Frank and Millette. The reasoning, based on existing caselaw, is sound. And yet, . . . something about this holding just feels wrong to me. (I suspect that dyed-in-the-wool libertarians might have stronger language for it.) There is nothing suspicious about being physically present in a high crime area; the Supreme Court made that clear in April, in McCain v. Commonwealth. To my knowledge, no case holds that merely walking with a crook establishes a reasonable suspicion that the non-crook is doing something wrong. And I saw nothing inherently suspicious about knocking on a door and walking away when there was no answer; viewing such a scene, I would assume that the callers were expecting their host to return home shortly. Remember, all of this took place in the afternoon, with the sun shining; this is not one of those 2:45 am drug deals. Finally, how the officer could tell that the rocks in Bandy’s pocket were crack is beyond me. This last argument, which might have borne appellate fruit, was apparently left on the table by Bandy. The Supreme Court held in Cost v. Commonwealth this year that the mere shape of capsules was not enough to justify the suspicion that they were illegal drugs, as opposed to legal ones. But as the court notes in a footnote to today’s ruling, Bandy didn’t contend that the officer didn’t have probable cause to believe that the rocks were cocaine, so that issue has to lie fallow in this appeal. Domestic relations It is always especially troubling to read about cases where parents use children as tennis balls in their marital disputes. That’s the subtext of today’s opinion in Foster v. Foster, a child custody proceeding under the Uniform Child Custody and Jurisdiction Enforcement Act. Father, Mother, and their three young children lived in NewKentCounty until the summer of 2006, when Mother told Father that she was taking the kids to visit family in North Carolina. But that wasn’t her real intention; once she got on I-95, she headed north instead of south, eventually ending up at her mother’s place in Maine. That started the custody petitions flying. Father won the race to the courthouse, filing a petition in New Kent JDR Court. Two days later, and before she was served with notice of the New Kent proceeding, Mother filed a similar petition in Maine. The Maine court entered a temporary order, granting custody of the children to Mother based on her allegation of domestic violence. The UCCJEA includes a singularly wise provision that requires two courts to consult one another when this kind of thing happens. That provision worked well here, as the Virginia and Maine courts corresponded and kept each other apprised of proceedings. Eventually, the Virginia court determined that it was not an inconvenient forum for the proceedings (that was presumably an easy call, since the kids had never known a home outside Virginia until Mother took off with them), and it awarded custody of the kids to Father. When the case got into circuit court, Mother first sought reversal of the forum determination. The New Kent court sided with Father on that one, after considering eight statutory factors, specifically including the allegation of domestic violence. The Maine court then specifically joined in the Virginia court’s determination that Virginia was not inconvenient, and it dismissed the Maine case at that point. Mother is, by now, starting to run out of ammunition for this fight. Today, the Court of Appeals finds that the New Kent court did not abuse its discretion in holding that Virginia was not inconvenient. The CAV thus affirms the award of custody to the father, and the kids will return home to what I earnestly hope is a more civilized and cooperative proceeding than the opening stages of this war would indicate. One last practice pointer: One of the key facts here is the trial court's specific recitation, in its custody order, of its consideration of the various statutory factors, specifically including the allegation of domestic violence. I don't know whether this order was prepared by the court or by Father's lawyer, but lawyers who get to draft orders themselves should recognize the opportunity this task presents. You can avoid a lot of appellate headaches by putting such matters in your orders; the appellate courts certainly pay attention to such language, so you should, too.
2008 VSB APPELLATE SUMMIT [Posted August 8, 2008] The Virginia State Bar’s Appellate Practice Subcommittee will present its 2008 Appellate Summit on Thursday, August 28, 2008, from 1:15 pm to 5:30 pm. Troutman Sanders LLP will host the event at its Richmond office, 1001 Haxall Point. A reception will follow the meeting. This event is designed for appellate practitioners, with an advanced level of instruction for the continuing legal education presentations. The schedule of events is as follows: 1:15 Welcome; opening remarks 1:20 Petition for rehearing 1:45 Moot courting oral arguments 2:30 Recent appellate developments 3:00 Break 3:15 Finality and the severable interests doctrine 4:00 Ethics 4:30 Judicial panel 5:20 Closing comments A reception will follow at The Pearl Room, BlackFinn Restaurant. The event is open to all members of the Virginia State Bar, and is free. Attorneys interested in attending should contact me at (757) 965-5021 or at emmert@virginia-appeals.com.
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 robber 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.
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