To say that Virginia’s Court of Appeals never reverses a criminal conviction would be an exaggeration. In truth, all appellate courts everywhere tend to affirm far more than they reverse judgments, so the odds are already against any given criminal defendant appealing a conviction. By one measure, considering all the appeals that are refused at the petition stage under the current manner for seeking an appeal in a criminal case, the Court of Appeals’ reversal rate in criminal matters hovers somewhere around 2%. When all appeals become appeals of right, we can expect to get a clearer picture of the true reversal rate, which may be even lower if the availability of appeals of right causes a surge in near-frivolous filings.
Thus, when the sole published opinion of the Court of Appeals released on Tuesday October 12, 2021, clocked in at 22 pages with a summary announcing the reversal of a major drug felony, I expected a dissent was the reason for the excessive length. Reading the names of the Judges on the panel, Beales, Russell, and Haley, I grew more certain that this would prove to be a 2-1 decision. But I was wrong. Judge Russell wrote the opinion for the panel with nary a discouraging word from Judge Beales or Sr. Judge Haley.
Alonzo Devon White v. Commonwealth of Virginia started, by all appearances, a run of the mill domestic disturbance call. Police dispatch directed law enforcement to an apartment complex after receiving an anonymous call reporting that “a black female and a black male had an altercation in the parking lot in which the black male pulled a gun on the black female.” Further reports (from whom, it is not clear) indicated that “a black male had beat a female in the street with a gun.”
When law enforcement officers arrived, there were two groups of people in the parking lot along with many bystanders. Officers could not identify the two individuals about whom the report had been made. Witnesses gave conflicting versions of the events, suggesting that either the male or the female had been the aggressor.
Officers then entered one of the apartment buildings and were told that the man and woman were in a particular apartment. Repeated and very forceful knocking at the apartment door resulted in no response for some while, but eventually a woman with a young child answered the door, opening it just a fraction. Despite having a swollen lip, the women insisted that there had only been a verbal argument only. When an officer asked to enter the apartment to speak about the incident, the woman denied the officer admission and instead stepped outside the apartment and closed the door.
Believing that there was armed person inside the apartment, the woman was escorted downstairs. She was uncooperative and evasive when asked whether anyone else was in the apartment. Officers then suspected that the woman may have injured the man. The decided to enter the apartment but waited for the arrival of a unit with a ballistic shield. During this delay, no effort to obtain a search warrant was made.
Officers entered the unlocked apartment and after some time, White appeared and was taken into custody without incident. Officers conducted a sweep of the apartment looking for other occupants and, in the process, saw drug paraphernalia in plain sight. Based on this observation, they obtained a warrant and found both cocaine and heroin.
White’s motion to suppress was denied by the circuit court, which found that the initial entry and sweep of the apartment was justified by exigent circumstances. On appeal, the Court of Appeals looks at the evidence to determine whether the evidence as a whole supported the circuit court’s determination that the exigent circumstances exception to the 4th Amendment’s warrant requirement applied. The discussion, making up 14 of the opinions 22 pages is exhaustive (and a little exhausting to read). I recommend it to anyone wanting a thorough primer on the subject.
However, I am going to take the Court to task for not simply ending the analysis based upon one obvious fact — if the officers had time to request and wait for the ballistic shield, they also had time to get a warrant. In fact, the opinion makes it plain that once they determined the need for the warrant to search beyond items in plain view, they call for and obtained a warrant without difficulty. There, how long did that take me? Not 22 pages, that’s for sure.
The headline mentioned lightning striking twice, but the summary of White said it was the sole published opinion. That’s because the second criminal reversal comes in an unpublished opinion. Samuel Leon Burgess v. Commonwealth of Virginia is being review following a remand by the Supreme Court of Virginia, which found that the Court of Appeals’ prior finding that Burgess had waived his argument that evidence in his trial for will failure to appear had been waived. Addressing the merits as to one of the FTA charges (the only one being challenged), the Court of Appeals concluded — or, rather, recognized that the Supreme Court had “intimated in its remand order” that Edmonds v. Commonwealth, 43 Va. App. 197 (2004), was controlling and mandated reversal of the conviction. Simply put, the record showed that no one ever testified that Burgess had been advised of the date of trial at which he failed to appear. Although there may have been some indication in the court file that Burgess had notice, and the prosecution in both the present case and in Edmonds advised the court that it could take judicial notice of this evidence, there was simply no indication that the court did so.
“Intimate,” as a verb, means to imply or hint, but more rarely can mean to state or make known. As a noun, of course, it has a more personal and delicate meaning and different pronunciation. The remand order in this case was unpublished but is available on the Court’s website. I would say that the order did a great deal more than “intimate” that Edmonds applied unless used in the more infrequent sense as the Court pretty cleared stated and made known that this case needed to be reversed. That’s hitting the Court of Appeals in a fairly intimate place.
As this post’s headline intimates, when I began reading the sole published opinion of the Court of Appeal today, I immediately harkened back to an episode of Dragnet. Now let me be clear that I am not old enough to remember the radio version of the franchise or even to have seen the original run of the first television series. But I did see the first revival in first run and the original in repeats. So what was it about the opinion that sent me down nostalgia lane? I recall fondly an episode in which the primary investigation revolved around con-men posing as detectives and setting up marks with a bogus call-girl service which the “cops” would then reveal to be a sting operation. The mark would be offered a chance to pay a hefty fine to avoid being arrested for solicitation.
Now, you have to remember that this was in the days before ATMs, and the con-men obviously didn’t want to take a check made out the the LAPD. The mark had to come up with cash, so the mark usually had to go with one of the “cops” to a liquor store to cash a check (the store owner was in on the scam and charged a higher than usual fee to cash the check), then go back to the hotel to pay the “fine.”
Friday and Gannon were put on the case and set up their own sting, except when the “cops” told Gannon (playing the mark, of course, no one would believe Joe Friday would need to pay for it) the amount of the fine, he said he didn’t have that but his brother-in-law (Friday) could lend him the money. The kicker was they had to meet in front of the police headquarters so the brother-in-law would know it was “legit” and also asked the con-cops to tell Friday it was a fine for DUI because “he won’t have any trouble believing that.” You can probably guess the end of the story (except for the outro where we learn the sentences of the bad guys) — as soon as the con-men arrived at the station they were arrested (while other officers had already grabbed up the “call girl”). Two fellow detectives asked Friday and Gannon how they were able to arrest the perps right in front of the station, Friday replied, “It was easy. They just made one mistake.” <Dramatic pause for inquisitive look from other cops> “They thought they worked here.” Dun-Da-Dun-DUN!
Which brings us to William Joseph Morgan v. Commonwealth of Virginia in which the trial court found Morgan guilty of impersonating a police officer and carrying a concealed weapon while intoxicated. What makes this a particularly unusual opinion is that the appeal was limited to two issues that rarely make the Court of Appeals look beyond the one-judge order — sufficiency of the evidence and abuse of discretion in admitting evidence. I would like to think that this one made it to the merit stage for some reason other than to give the judges a good chuckle, but I will let you judge for yourself.
Our tale begins with our own Friday and Gannon of the Virginia Beach PD, Detectives Otranto and Bryant observing an undercover vehicle. It was the right model (Crown Vic), had the right styling, the right markings, the right vanity plate . . . wait, what? Yep, it had a vanity plate that read “SPC-COP.” As the court says, the presence of the vanity plate “indicat[ed to the detectives] that the Crown Victoria did not belong to the Virginia Beach Police Department.”
The detectives were in a marked car and as they approached the vehicle it began to be driven in a manner that was, shall we say, indicative the the driver was not attempting to keep his undercover profile from being discovered. The car sped away, swerved in traffic, red and white emergency lights were activated and flashed alternately in a strobing fashion similar to that of emergency vehicles. The detectives noticed there were other lights in the vehicle’s windows, though these were not illuminated.
After calling for back-up, the vehicle was stopped and the driver identified as Morgan. He told the first officer that he encountered that he had a firearm in a backpack that was on the front passenger seat, The officer also noted that Morgan smelled of alcohol. He was arrested and the car impounded, Subsequent examination of the vehicle showed that it was equipped with blue emergency lights in the front and read windows operated by the cigarette lighter (you youngsters know this as the “power point” where you plug in your phones). In the trunk was found more emergency lights including adapters to affix a light bar to the top of the vehicle, a spotlight, a fourteen-inch-long flashlight with the words “Police Security,” a dog muzzle, and a dog vest marked “K-9 unit.” Police also found a duffle bag in the trunk that contained several firearm holsters, two safety vests, a firearm magazine pouch, gloves bearing the word “police,” zip handcuffs, and a pair of sunglasses with a sunglasses case, both bearing the word “police.” In the passenger compartment was a badge marked with a thin blue line and the word “Special Officer,” a pamphlet for law enforcement services, a state police inspection form, and, get this, Morgan’s concealed weapon permit. Yep, the circuit court done give this bargain basement Barney Fife wannabe a carry permit. (OK, I am being a little hard on the Circuit Court as later evidence might indicate that Morgan was not entirely off the sanity reservation.)
Let’s cut to the chase (pun intended). At trial, Morgan argued that none of this evidence from the trunk was admissible because there was no evidence that he used any of it to impersonate a police officer. The Commonwealth responded that the items were relevant to show Morgan’s state of mind when he committed the offense and demonstrated that he had been “pretending” to be a law enforcement officer. The trial court agreed, admitting the evidence.
In his defense, Morgan presented testimony from a private security firm that Morgan was a licensed and certified security officer, that the equipment was all related to his job and that he was “permitted to install and operate red and white lights on his vehicle while on private property and write summonses for certain offenses.” The trial court convicted Morgan of impersonating a police officer and being in possession of a gun while intoxicated.
On appeal, Morgan contended that the evidence failed to show that he was “pretending” to be a law enforcement officer. The court notes that there is disagreement as to whether impersonation must be done with an intent to deceive, but concludes that it need not decide that issue because the evidence here clearly showed that Morgan intended for others to believe he was a law enforcement officer, driving his vehicle in a manner that, while reckless, was being done in a manner to deceive others that he had some authority to do so.
Now, you might be thinking, but what about the evidence from the trunk and the lights that he didn’t turn on? He didn’t use these things (at least when observed by the real cops) with an intent to deceive, so the Court overturned the admission of those and that’s why it granted the appeal, right?
Of course not. Quite the opposite. The Court agrees with the trial judge that the evidence, while not probative of the actus reus (the Court’s Latin legalese, not mine), it was probative of the mens rea (my Latin legalese, not the Court’s). That is, it was probative of Morgan’s state of mind. Because the Court was assuming the intent was an element of the offense, evidence of mental state was relevant. Q.E.D.
Still, the Court agrees with Morgan that taken individually, his erratic driving, the fact that he did not activate the blue lights, only the red and white ones, argue against his impersonating a law enforcement officer. But, he Court continues, this is “missing the forest for the trees,” because the totality of the evidence also included his manner of driving (which the police testified was similar to police tactics) and the fact that the vehicle was almost good enough to fool real cops (in fact, but for the vanity plate, it might have done so).
Morgan also had some creative arguments about why he was not guilty of carrying a concealed firearm while intoxicated. First, he was not a person “permitted to carry a firearm,” but “a person with a permit to carry a firearm.” The Court said this was straining the language of the statute too far. Second, he was not carrying a concealed weapon because his permit allowed him to conceal the weapon while in his vehicle. The Court said the law permitted an exception to illegally concealing a weapon while in a vehicle, it did not mean that the weapon was not concealed, which it clearly was, and in any case the exception only applies if the “person with a permit” is sober, and Morgan wasn’t. Finally, he maintained that the weapon was not on or about its person because it was inside the backpack in a holster. Interestingly, the Court did not find that the gun was “on or about his person” under the wingspan rule, noting instead that for this particular offense, the weapon need not be on or about the person — it need only be shown that a weapon was being carried in a concealed manner while the permitholder was intoxicated.
Oh, and ladies and gentlemen: the story you just read is true. None of the names have been changed to protect the innocent. And if you have never seen this sketch from The Tonight Show with Johnny Carson, you really have to watch it.
The Court of Appeals released its first published opinion of the new “term” on Tuesday – yes, I know that the appellate court’s in Virginia don’t really have “terms” because they never go into recess, but for so long as memory serves, the appellate bar – and even the courts themselves, have informally recognized a summer hiatus followed by a new appellate “year” starting in September, thus getting a jump of the US Supreme Court by a month.
Caine Calif Davis v. Commonwealth of Virginia deals with hearsay. Or rather, it doesn’t. Davis was charged with numerous offenses, the most serious being first degree murder and, as often happens when there are multiple felonies, a conspiracy to commit said murder. During his trial on this offense, the Commonwealth sought to introduce evidence of the conspiracy in the form of certain things said by an alleged co-conspirator, and Davis naturally objected that as the speaker of the words was not going to testify and, thus, would not be subject to cross-examination, the evidence was hearsay. The Commonwealth responded that the words were uttered by a co-conspirator and, thus, fell within a recognized exception to the hearsay rule as being relevant to prove the conspiring of Davis and the out-of-court declarant.
The circuit court ultimately struck the conspiracy charge as not supported by the Commonwealth’s evidence. When Davis then asked that the court also strike the evidence offered with respect to that charge – i.e. the words spoken by no longer alleged co-conspirator – the court declined to do so. Ah ha! It was hearsay without an exception and not subject to cross examination – anyone familiar with the Virginia/US Supreme Court series of cases of Benjamin Lee Lilly is anticipating an appeal and a swift reversal (or at least a lengthy analysis of why the error was harmless beyond a reasonable doubt).
But in the Court of Appeals opinion there is nary a mention of Lilly nor any other Sixth Amendment Confrontation Clause jurisprudence. Why? Because the Court of Appeals finds that there was no “hearsay” admitted in the trial. Wait . . . What? The circuit court overruled the objection to hearsay, didn’t it?
Yes. Yes it did. But as the Court of Appeal rightly points out, just because something is spoken (or written or texted or posted on social media or sent by semaphore) by someone who is not the in-court declarant of said words does not automatically make said words “hearsay.” Rather, the Court notes that before words can be hearsay, the words must be an “out-of-court statement offered for the truth of the matter asserted therein” and not subject to a well-recognized exception making hearsay inadmissible.
The Court notes that in most instances where a hearsay objection is asserted, the opposing side skips over the “statement offered for the truth” and asserts an exception. The trial court likewise considers whether the exception applies, rules, and the case moves forward.
In Davis, the Court concludes that skipping over the first element of the hearsay test was not a good idea in this instance. If you go back to the second paragraph of this post, you will note that I chose my words (literally “words”) very carefully – no where does it say the Commonwealth offered a “statement,” not that it was offered “for its truth.” What the Commonwealth did offer was as series of communications over a popular social media platform authenticated by the of the owner of the social media account who testified that she permitted the alleged co-conspirator to use account on her phone to set-up a drug transaction.
The Court of Appeals notes that not all words spoken or written are “statements.” A statement, says the Court, is “an oral or written assertion” about which the trier of fact is must make a determination of credibility – it must be something that is provably true or not. Had I been drafting this opinion, I might have been tempted to include a footnote by way of example by quoting J.K. Rowling’s Harry Potter and the Philosopher’s Stone, “‘Welcome to a new year at Hogwarts! Before we begin our banquet, I would like to say a few words. And here they are: Nitwit! Blubber! Oddment! Tweak!’” Dumbledore undoubtedly says “words,” but despite the many arguments of Potterheads about their meaning, the author as consistently maintained that the headmaster was merely making a joke by saying a random assortment of odd words. “Nitwit! Blubber! Oddment! Tweak!” is not a “statement.”
The Court continues, “Additionally, statements are only inadmissible hearsay if they are offered for a particular purpose: to prove the truth of the matter asserted therein. If the value of the evidence is not tied to its credibility—i.e. is not offered for its truth—then the hearsay rule does not operate to exclude it.” Harkening back to my reference to the boy who lived, the Court concedes that “the mere incantation that the statements are not offered for their truth is not sufficient for a court to admit such statements; the actual use at trial by the proponent is a relevant consideration when determining the purpose for which an out-of-court statement is offered.
It should be noted at this point that the Commonwealth made no such assertion in this case – and that begs the question whether the Court of Appeals hasn’t strayed off the reservation in deciding to broach the subject at all. However, as is far too often the case, it is presently the rule in Virginia that only the appellant is barred from making new arguments of appeal – neither the appellee nor the appellate courts are prohibited from introducing new and novel lines of attack against finding error after the trial is over.
The Court of Appeals concludes that most of the “out-of-court statements contain[ed] no factual assertions whatsoever but are instead non-assertive inquiries or instructions” that were relevant to establishing Davis’ guilt of any of the offenses. Although the court acknowledges that there were two statements of fact – although one was actually a misstatement of a fact (a lie), it was nonetheless provably true or false, neither of these was offered to establish Davis’ guilt of the crimes with which he was charged other than the alleged conspiracy. At best, they showed a concert of action between Davis and the co-conspirator to set up a drug deal – not to commit a murder.
Davis contended that the evidence was offered to prove that he and the alleged co-conspirator were using the pre-text of a drug deal to lure the victim into a position where he could be ambushed. The Court, however, says that none of the statements proved the existence of such a plan and, thus, were not offered for their truth with respect to the crimes (other than the conspiracy) with which Davis was charged and ultimately convicted.
My take on the opinion in this case is to quote Lt. Holden (Tony Curtis) to Capt. Sherman (Cary Grant) in Operation Petticoat, “Sir, in Las Vegas, the boys would say you’re trying to make your point the hard way.” While I am not a great fan of harmless error, especially in Confrontation Clause matters, I do think this case was a better candidate for finding the two highly innocuous statements that were assertions of fact as being harmless, rather than not hearsay. Put simply, the Court should have opted for the path of least resistance here instead of wandering down a path that neither the lower court nor the parties had chosen to follow. The Court has been doing this a great deal lately, and it seems to be doing so merely for the academic exercise of demonstrating that if trial counsel and trial court had the time and staff to research the law more thoroughly, objections, responses and rulings would be broader and more erudite. But that is not how trials work.