Court of Appeals Opinions from September 27, 2022

As the Blawg continues to play catch-up, we have two more criminal appeals from the Court of Appeals, these having been issued on September 27, 2023.

Jason Harris v. Commonwealth involves the problem of screening a member of the Commonwealth's Attorney's Office who was previously in private practice when a former client once again finds himself the object of a criminal prosecution. As a general rule, the so called "Chinese Wall" method of dealing with conflicts is not allowed, but there is one significant exception for government employees. Because it is commonplace for government attorneys to move back and forth from the private sector, the Rules of Professional Responsibility do permit the use of screening to avoid potential conflicts.

In Harris the conflict arose from the ACA's having represented Harris in two revocation hearings while she was a public defender. When Harris was charged with a new offense, the Commonwealth's Attorney declined to seek a special prosecutor, reasoning that the new offense was not related to the matter in which the ACA had represented Harris, and that screening her from the case would be sufficient.

Harris entered into a plea agreement, but before it could be entered, he found himself in even more trouble. This time, his public defender made a formal motion for the appointment of a special prosecutor. After receiving assurances from the Commonwealth that Harris' former counsel would have no involvement with the prosecutions, the circuit court denied the motion. Harris appealed from both cases, arguing that the conflict should have disqualified the Commonwealth's Attorney from prosecuting Harris.

Normally, I don't bother to identify the jurisdiction from which an appeal arises as it is not generally relevant, but in this case I think it is worth observing that this case arises from Fauquier County. Fauquier is just on the edge of the Northern Virginia sprawl, but is still a relatively rural county. Why is that relevant? Well, when a special prosecutor is appointed, generally a prosecutor is chosen from a neighboring jurisdiction in a different circuit. Why a different circuit? Because this helps give the appearance of full independence where the special prosecutor does not regularly appear in from of the judge trying the case. For the same reason, when a retired circuit or district judge sits by designation following recusal of the judges of a locality, he or she is not a retired judge of the court that is recused (this does not apply where the judge is sitting by designation merely to assist with the caseload or for an absent judge). The two neighboring counties that are not in the 20th circuit are Prince William (31st) and Stafford (15th). Manassas is the county seat of Prince William, about a 30 minute drive to Warrenton, the county seat of Fauquier, but Prince William is a rapidly-urbanizing jurisdiction and I would imagine its ACAs are pretty busy. The Stafford County Courthouse is more like an hour drive. Stafford County is a little further along in growth than Fauquier, with about double the population, but its likely that it's Commonwealth's Attorney's Office is not yet gaining extra staff. In short, it probably would have been a significant inconvenience for either office to supply the special prosecutor, and while this factor alone should not be the determining factor for whether the local prosecutor should recuse, it is certainly a relevant consideration where the charges are not significant and the conflict is not that great.

On appeal, the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, first note that with respect to the case in which Harris entered a guilty plea, he has waived any objection to the potential conflict. With respect to the additional issues, the Court finds that, assuming without deciding that the conflict did present an actual probability that the former public defender was privy to information that was prejudical to Harris in the current proceedings, the Commonwealth effectively screened her from the proseuction.

The other case from September 27, 2022 is Eva Carol Belcher v. Commonwealth and it involves an offense that is likely to be increasingly common with the aging of the Baby Boom generation, abuse of a position of trust with respect to an elderly person. Belcher was a caregiver who had access to her patient's credit card. Belcher was indicted on over 38 separate offenses of fraud to obtain money, goods, or services in violation of Code § 18.2-186.3. In a jury trial she was acquitted of all but seven misdemeanor and one felony count.

The issues on appeal include the sufficiency of the evidence, the admission of testimony by the victim's son concerning the reduction in expenses for his mother after Belcher was dismissed offered to show that her purchases were not for the victim's benefit, and the jury's recommendation of sentences that did not comport with the law. The Court of Appeals, Judge Friedman joined by Judges AtLee and Raphael, affirm on the sufficiency and evidentiary issues, but reverse on the sentencing issues.

The circuit court's failure to address the improper sentences with the jury is baffling to me. It is well-settled law that a defendant cannot be sentenced in excess of the punishment permitted by law and cannot waive an objection to an unlawful sentence. While the court was clearly aware that the jury had not properly discharged its duty, he dismissed the jury and subsequently "adjusted" the sentences after the pre-sentence report was filed. This case obviously preceded the option for a jury trial with judge sentencing, but even if it hadn't, where the jury is the sentencing body, only the jury can pronounce the sentence. The judge can suspend a portion of the time or fines to render a less harsh active sentence, but he cannot correct an unlawful sentence imposed by the jury.

September 20, 2022 Opinions of the Court of Appeals

The Court of Appeals release three published opinions on September 20, 2022, all from criminal cases. Craig Carnell Maryland v. Commonwealth is all about "time served." Maryland was convicted of voluntary manslaughter and use of a firearm. We received a total sentence of 15 years, with four years and five months active time. Maryland maintained that he was entitled to credit against this sentence for the time he had spent on pre-trial bond in a home electronic monitoring program. The circuit court found that HEM did not qualify as time served.

Judge White, in her first published opinion, joined by Chief Judge Decker and Judge Beales, affirms. The relevant statute, Code §53.1-187, permits the crediting of time served "spent in confinement or in detention." The Court reasons that while Maryland was in "custody," we was neither confined nor detained. Despite being affirmed, the case is remanded to correct a scrivener's error in the sentencing order.

Diallo Turner v. Commonwealth arises from a motion to suppress the evidence obtained as the result of a traffic stop that was part of a surveillance operation of a suspected drug market. The stop occurred in Fredericksburg about 1 AM on June 3, 2020. The city had declared an emergency curfew from 8 p.m. to 6 a.m. from June 1, 2020 to June 3, 2020 as a result of unrest related to the death of George Floyd at the hands of police in Minneapolis, and Turner's violation of the curfew was the basis of the stop.

The stop was tense, with Turner asking the police "not to kill him." Finding that Turner was driving on a suspended license, police brought a "sniffer" dog which altered on the vehicle and a search found marijuana as well as suspected PCP residue. Turner was Mirandized and made incriminating statements.

Turner moved to suppress the evidence and the attendant statements, arguing that as there were numerous exceptions to the curfew, his mere presence on the street was not sufficient to establish probable cause to initiated the stop. The circuit court ruled that the officer was permitted to conduct the stop in order to determine whether Turner had a justifiable reason for being out past curfew. The Court of Appeals, Judge Beals, joined by Chief Judge Decker and Judge White, affirmed.

Devonza Antiwan Johnson was incarcerated in the restrictive housing unit at the Augusta Correctional Center when he caught the attention of a female staff member and proceeded to masturbate. He was charged with a violation of Code § 18.2-387.1, which criminalizes engaging in masturbation in "a public place." Johnson contended that his cell in the prison was not a "public place" and therefore he was not guilty of the offense. Johnson noted that the language of Code §18.2-387.1 differs from that of Code §18.2-387 which applies to indecent exposure, which can occur in a public place or a place “where others are present.”

The Court, Judge Raphael, joined by Judges AtLee and Friedman, actually find that there is merit to Johnson's argument. The difficulty is, they are not the first judges of the Court of Appeals to address this issue. Under similar circumstances, a different panel of the Court in Barnes v. Commonwealth, 61 Va.App. 495 (2013), held that jails and prisons are "public places" for purposes of Code § 18.2-387.1. The panel finds that it is bound by that decision.

September 13, 2022 Court of Appeals' Opinions

The Court of Appeals issued three published opinions on September 13, 2022, all involving criminal appeals. Shemon Devonte Clayton v. Commonwealth is an appeal of both a conviction and a revocation, but the only issue was whether Clayton was guilty of a violation of Code § 53.1-203(5), as it was this offense that resulted in the revocation of his prior suspended sentence as well as his current conviction.

You probably noticed that Clayton was not charged with a title 18.2 offense -- that is, an offense from the "criminal code." So, what is Title 53.1 and why does it have statutes that impose criminal penalties? It’s the "Prisons" title, and it has an entire chapter on Crimes and Criminal Proceedings Involving Prisoners. Put simply, it’s the criminal code for those who are already serving time for criminal activity. Code § 53.1-203 has ten separate offenses that are defined as felony offenses which committed by prisoners. Subsection 5 makes it a class 6 felony for any prisoner to "[p]rocure, sell, secrete or have in his possession any chemical compound which he has not lawfully received."

The chemical compound in this instance as a "synthetic cannabinoid" which was found infused in some "leafy material" in a wad of paper which a corrections officer saw tossed from Clayton's cell. Synthetic cannabinoids are "are human-made mind-altering chemicals that are either sprayed on dried, shredded plant material so they can be smoked." Clayton denied that he had tossed the paper, saying that it must have come from an adjoining cell.

Normally, where the only evidence is that of a corrections officer and a prisoner and the Court finds that the prisoner's self-serving testimony is not credible, that should end any question of sufficiency of the evidence. However, Clayton had any interesting take on the evidence here, contending that even if the wadded paper was thrown from his cell, this was not sufficient to prove that he was aware of the chemical that was infused in the leafy material. Relying on a prior decision of the Court of Appeals which spoke of chemical substances being "introduced" into the prison, Clayton argued that this required the Commonwealth to prove that Clayton brought or otherwise deliberately caused the substances to be brought into the prison.

The majority, Judge AtLee joined by Judge Friedman, ruled that Code § 53.1-203(5) is a strict liability offense, and all that was necessary for the Commonwealth to prove a violation of the statute was to show that Clayton possessed a chemical compound while he was a prisoner and that he had not obtained lawfully. In doing so, the Court indicated that Esteban v. Commonwealth, 266 Va. 605 (2003), supported the conclusion that a criminal statute which did not mention a mens rea or scienter elements does not require proof of guilty intent or knowledge.

The reason this opinion was published was that Judge Raphael, while concurring in the result based on Esteban, wrote separately because in his view Esteban does not comport with the view expressed in other jurisdictions that a statute must contain an express requirement of mens rea or scienter to have an intent or knowledge element for the offense. The concurrence is nearly twice the length of the majority and, if one did not know better, it might be viewed as a draft of the argument Judge Raphael would like to see brought to the Supreme Court of Virginia "in an appropriate case."

Devinceo Dontre Heart v. Commonwealth also involves a revocation of a prior suspended sentence, but, unlike Clayton, the violation was not a new crime but a so-called "technical violation." Technical violations of probation are addressed in a brand spanking new Code § 19.2-306.1(A) which has 10 different actions by a probationer that can result in a show cause, but which typically do not warrant revocation, at least on a first or second violation. However, "[t]he court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation." Now that's all pretty straight forward, except in subsection C, the statute then has this to say, "For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.

Now all of this is by-the-by because Heart didn't commit a third, or even a second technical violation. Instead, he committed a first technical violation after having committed two non-technical violations. The statute says nothing about non-technical violations, and that left the circuit court in a quandary -- could it revoke Heart's sentence for a first technical violation which was a third violation. The circuit court thought that it could, but the Court of Appeals (Judge Lorish writing for herself and Judges Beales and Ortiz) thought otherwise.

The Court's reasoning is unassailable from a strict reading of the statute -- it plainly says that the court cannot impose active time for a first technical violation, and that is what this is. The court can place additional restrictions on the defendant or extend the time of supervision, but it cannot revoke the sentence. Of course, it is certainly possible that the legislature did not intend this, but the Court is not permitted to add language to the statute to arrive at a result that may have been intended. The case is remanded for "re-sentencing."

William Winn Khine v. Commonwealth involves a conviction for 1st degree murder. Khine was alleged to have killed his wife. The Court makes short work of an objection to the admission of a hearsay statement that the wife had told a friend she was planning to tell Khine she wanted a divorce, finding that it fell under the state-of-mind exception to the hearsay rule. However, Judge Raphael, writing for himself and Judges Fulton and Ortiz, find fault in the circuit court's striking of Khine's evidence offered to support a defense of not guilty by reason of insanity arising from an irresistible-impulse.

In Virginia, legal insanity comes in two forms. The first, usually referred to as the M'naughten Test, requires the defendant to show that due to a mental disease or defect he was unable to appreciate the wrongfulness or criminality of his act. For example, if the defendant suffered from a delusion that passersby on the street were zombies and shot a "zombie" in the head believing that it was going to attack him, he would not understand that he had committed murder.

The other form of insanity is the "irresistible-impulse" defense. This requires the defendant to show that due to some mental disease or defect he was compelled to commit a criminal act even though he knew it was wrong. For example, if the defendant is under a delusion that a demon has possessed him and is compelling him to commit murder.

Khine presented expert testimony that he was suffering from "an acute episode of psychosis at the time of the alleged offense" and that voices were compelling him to murder his wife. In response, the Commonwealth presented the testimony of two lay witnesses, one of whom said that in daily contact with Khine, she never observed any behavior that was unusual or suggested that he was suffering from a mental disorder. The other witness testified that on the day of the murder she saw Khine with the victim and that he appeared "angry."

The Commonwealth did not present expert evidence -- which raises the question of whether it did not seek an expert opinion, which would have been foolish, or whether it had and didn't like the opinion it got and so decided not to call the witness, which would have been reckless. Instead, relying on the lay testimony, the Commonwealth moved to strike the defense of insanity. The circuit court did just that and convicted Khine.

As already indicated, the Court of Appeals reverses that ruling and remand the case directing that the circuit court "to evaluate that [insanity] defense on the merits." The Commonwealth asked for this remedy, rather than a new trial, probably thinking that the circuit court having struck the defense is not likely to find that Khine met his burden of proof. While Khine had requested a new trial, his counsel agreed that the case could be sent back for a re-evaluation. I think that was probably a wise concession, as it means the Commonwealth will have no opportunity to present its own expert evidence. As the defense must be proven only by a preponderance of the evidence, I think the Commonwealth may be in for a rude surprise -- the circuit court is not likely to view the Court of Appeals opinion as merely saying "Just put a different label on your decision," but will actually evaluate the merits of the defense in light of the reversal -- and with only ay evidence against the expert testimony may make a rejection of the defense difficult on remand.