Today’s lone published opinion from the Court of Appeals, Dwayne Allen Ray, Jr. v. Commonwealth of Virginia, has a certain dramatic “Law and Order” feel to it. It also calls to mind a tune by Queen that starts with an iconic bass line. Mostly, however, it evokes the aged old debate of whether there is honor among thieves, or in this case, drug dealers.
We’ve all seen an episode of a police procedural drama where the police “flip” one suspect to get incriminating evidence on a “bigger fish.” This is actually a common practice when police have a low-level drug offender and want to move up the chain of distribution. In today’s opinion, the “little fish” was Jeremy Cumbee, and the slightly larger fish was his “best friend” (hence the Queen reference) who he knew as “Squirmy.”
Squirmy, whose real name he thought was “Dwayne Wood,”, was Cumbee’s supplier for cocaine. Cumbee in turn apparently sold cocaine that he acquired from Ray to an unnamed even smaller fish, who turned out to be working as a confidential informant (“CI” in cop show speak). Cumbee was arrested after a controlled buy and in turn agreed to work as a CI.
After Cumbee gave police information on Squirmy, they identified Ray as the likely suspect based on the approximate address given to them and a search of his social media accounts that confirmed he used the alias “Squirmy.” Police then showed Cumbee Ray’s DMV photo and Cumbee confirmed that this was the person he knew as Squirmy.
At the direction of the police, Cumbee set up a buy from Ray. Before going to make the drug buy, police again showed Cumbee the photo and he confirmed that this was the person he expected to meet. Cumbee then went inside the residence that police had identified as Ray’s and emerged a short time later with cocaine. Police showed Cumbee the photograph a third time and he identified the person in the photograph as the person from whom he had just purchased cocaine.
Prior to his trial for distribution of a controlled substance, Ray sought to suppress the evidence derived from the controlled buy, asserting that Cumbee’s identification was tainted because the police had only shown Cumbee one photograph. If you are a fan of Law and Order or similar shows, you’ve seen a “photo array” or “picture lineup” where typically six different photos are placed in a manila folder with rectangles cut out of one side, or perhaps they are just lined up on the table, and you are thinking, “Yeah, just being shown one photo seems pretty suggestive.”
Here’s the thing, it’s not per se improper to use a single photo to identify a suspect. As with most issues in the law, context is everything. Typically, a single photo identification is going to be considered highly suggestive where the witness does not know the suspect but has only seen him once. That was not the case here, where the police were not asking Cumbee to identify a stranger but asking him to confirm that this was the “best friend” he had already identified to them.
There is another important difference between this case and the “typical” photographic identification – the first two times Cumbee was shown the photograph no crime had yet been committed. Cumbee wasn’t identifying someone who had sold him drugs (or at least not the drugs that Ray would later be charged with selling), but someone he expected to be able to buy drugs from.
This may seem like a slight distinction, but it is one of sufficient note that it likely explains why the Court decided to publish this opinion. Although the Court does not expressly say so, it appears that this may be an issue of first impression in the Commonwealth. Indeed, the Court cited to a Maryland case to support its decision upholding the trial court’s overruling of the motion to suppress, something that the Court rarely does if there is good Virginia case law on a subject.
At trial Ray also challenged Cumbee’s in-court identification, again contending that it had been tainted by the single photo identification. Of course, there was one other opportunity for Cumbee to identify Ray – when he bought the cocaine from him. As Cumbee was subject to cross-examination, the credibility and accuracy of his identification both during the controlled buy and in court was clearly a matter for the jury to determine.
Ray also raised a perfunctory challenge to the sufficiency of the evidence, primarily attacking Cumbee’s credibility given that he was a convicted felon and a snitch. He also argued that his own evidence, which was that he had ceased living in the residence sometime before the controlled buy, rebutted the Commonwealth’s evidence that Ray mas present in the home on the day of the buy. The Court notes that even if the jury believed Ray’s evidence that he was no longer residing in the home, this did not exclude the possibility that he was using it as a place to transact his elicit trade. In fact, the evidence showed that he continued to pay the utilities for some months after he alleged he had ceased living there.
- tloojs
- Jan 26, 2022
- 2 min read
After last week’s action packed set of opinions, the Court of Appeals released a single published opinion this week that, despite clocking in at nearly 32 pages, will likely garner little more than a yawn even from the practitioners of Domestic Relations law. Horacio Eugenio Sobol v. Christine Marie Sobol is notable more for the peek behind the curtain it gives us into the world of high-priced accounting firms than any new ground in legal thought. Mr. Sobol is a partner in the accounting firm of PriceWaterhouseCoopers where he has worked throughout his marriage to the now former Mrs. Sobol. Mrs. Sobol completed her master’s degree early in the marriage and worked intermittently until the couple’s third child was born and has since been a homemaker. By all accounts, the family had a comfortable lifestyle.
The recitation of the facts takes 13 pages and includes a significant amount of detail on how PWC structures it’s partners’ capital interest in the firm. As you can imagine, this involves a great deal of money being classified as salary, deferred income, and capital deposits. You can probably also imagine that this led to a rather extensive amount of expert testimony concerning what should be considered marital property, and that is the primary point of appeal — the trial court’s treatment of this property in calculating equitable distribution. Rather than go through the Court’s very extensive analysis of the issue, I will simply quote briefly from the being of the analysis: “All trial court rulings come to an appellate court with a presumption of correctness. Because making an equitable distribution award is often a difficult task, we rely heavily on the discretion of the trial judge in weighing the many considerations and circumstances that are presented in each case.”
As you can probably guess, the husband gets no joy from this statement or the analysis that follows, as the Court of Appeals concludes that there was no error in the circuit court’s analysis of the ruling on equitable distribution. Likewise, the husband’s challenge to the award of attorney’s fees to the wife. The only sop for Mr. Sobol is that the Court finds that it was error for the circuit court to require him to make his wife the beneficiary of an insurance policy. This may be the one area of the opinion which will be instructive, if not exactly earth-shartteringly so. The reason the Court of Appeals reverses on this point is that the circuit court made an error of law — thus the discretion and deference standard does not apply.
The power of a court to require a party to maintain life insurance for the benefit of a former spouse is controlled by Code § 20-107.1:1. That statute clearly states that the party can be subject to maintaining a policy where the spouse “has been designated as a beneficiary of such policy during the marriage.” As Mrs. Sobol was not the designated beneficiary during the marriage, it was error for the court to require Mr. Sobol to make her the beneficiary as part of the divorce.
- tloojs
- Jan 19, 2022
- 13 min read
The Court of Appeals of Virginia issued ten case decisions this morning, five published and five unpublished. You will notice that I said “case decisions,” not “opinions” because one of the opinions combined two cases with the same defendant/appellant from the jurisdictions of Waynesboro and Rockingham County. Gregory Leon Hammer found himself on the wrong side of convictions for abduction, felony eluding, and driving after being declared a habitual offender in the former jurisdiction and this landed him in a revocation proceeding in the latter. Because the basis for revocation was the convictions, the Court of Appeals quite reasonably issues a single opinion affirming the latter and then, naturally, finding that the revocation based thereon was proper as well.
The Rockingham convictions occurred in 2012 and resulted in Hammer serving three years less a month of a 21 ½ year sentence. After his release, he appears to have been of good behavior until the evening of November 27, 2018 – well, perhaps not entirely of good behavior as the Court informs us that the police officer who detained Hammer that evening was “familiar with Hammer and his wife. He had seen Hammer ‘up close and personal’ while working on other matters” including at least one traffic stop.
On the evening in question, a BOLO was issued for Hammer based on the possible abduction by him of his wife. Because Hammer was believed to be heading from Rockingham to Waynesboro, the officer placed his cruiser along the expected route of travel and, sure enough, Hammer soon drove past at a recklessly high rate of speed. A high-speed chase ensued, which ended with Hammer first crashing his vehicle and then running out of gas. Hammer then fled on foot into adjoining woods, eluding police.
Hammer’s wife, though “scared,” was otherwise unharmed. She told the officer that she had been abducted and later gave a statement detailing the events that resulted in Hammer forcing her to accompany him.
The next morning, the same officer received a BOLO for a stolen vehicle from the same vicinity where Hammer had fled into the woods. Driving to Hammer’s residence, the officer found the stolen vehicle on the street with Hammer’s jacket inside. Hammer was found in the apartment where he was arrested.
Now, what followed is unfortunately quite common in cases of domestic abduction (and other domestic crimes). Hammer’s wife failed to appear for trial at least twice, despite being subpoenaed. After Hammer, who was representing himself, opined that although he hoped his wife would appear, presumably because she would testify that there had been no abduction, he predicted that she would not do so, presumably because she did not want to commit perjury. We can make this presumption with confidence because Hammer was representing himself – you see, Hammer was apparently savvy enough to know (or more likely had been told by prior counsel) that if he had counsel, his attorney would not be able to cross-examine the wife if the attorney knew that she would perjure herself. As we shall see, Hammer was savvy about this aspect of criminal procedure, but extraordinarily little else.
The Commonwealth made an oral motion to dismiss the abduction charge by nolle prosequi, with Hammer objecting that the charges should be dismissed with prejudice. The circuit court ruled that the Commonwealth had made a reasonable effort to obtain the wife’s attendance and orally granted the motion to nolle pros. Orally granted.
Then, perhaps to the chagrin of Hammer, his wife walked into the courtroom. The Commonwealth was permitted to withdraw the motion for nolle pros and the trial proceeded. Hammer said nothing at this time and neither the fact of the motion, it’s being orally grant, or being subsequently withdrawn, was ever memorialized in a written order.
The trial proceeded much as one might expect with the evidence from the Commonwealth recounting the incidents that led to the chase and the wife’s statement that she had been abducted. The Commonwealth also offered testimony that the wife had been threatened by “associates of Mr. Hammer” regarding her testimony as well as communications sent from Hammer to his wife instructing her to perjure herself if she testified. The wife was “evasive” in answering questions, and the court permitted the Commonwealth to introduce her statement as a prior recollection recorded. Hammer did not object on hearsay grounds.
Hammer did not move to strike the Commonwealth’s evidence. But instead recalled his wife to the stand where she duly perjured herself. He also testified on his own behalf, maintaining that he had not been the driver of the vehicle (and presumably of the stolen vehicle the next day).
The jury (oh, did I forget to mention that Hammer opted for a jury trial, and this was back in the day when a jury trial meant a jury sentence), convicted Hammer of all charges. The court denied Hammer’s motion to set aside and, upon entry of the final order in this case Hammer found himself in Rockingham where the court revoked his suspended sentence. The opinion doesn’t say whether the two court’s sentences were to run concurrently or consecutively but suffice to say that Hammer is facing somewhere between 18 and 30+ years active time.
Hammer wisely decided to let appointed counsel handle his appeal, and counsel managed to get a writ granted. The reason the Court granted the writ was to clarify that the procedure of nolle prosequi is not binding on the Commonwealth until the dismissal of the indictment in memorialized in an order of the court. This may seem to be a common-sense application of the standard rule that “trial courts speak only through their orders,” but a moment’s reflection will reveal that it’s not the court’s speaking that is at issue, but the prosecution’s.
In any case, because Hammer did not object to the charge being “reinstated” after the Commonwealth said it would not proceed, the issue in this case was not really whether the nolle pros was binding on the Commonwealth, but whether Hammer could raise the issue at all. His appointed counsel makes a Herculean effort to find an excuse to the contemporaneous objection rule, but the Court makes short work of these. Thus, while the discussion of when a nolle pros becomes irrevocable is really dictum, the Court was clear that the circuit court was well within its discretion to “change its mind only minutes later” when reversing the oral ruling.
The Court in fact, goes further, saying that even if the nolle pros has been memorialized in an order, that decision would have been subject to being vacated until 21-days after the entry of a final order. That is quite a remarkable statement and may bear some additional thought. The Court is saying that the Commonwealth could, for example, agree before trial to dismiss by nolle pros one or more of the charges against a defendant with the court entering an order to that effect and then, after a judgment is rendered on other charges, move the court to reinstate the dismissed charges. While a nolle pros does not prohibit the Commonwealth from seeking a new indictment, it seems to be a novel concept that the court could reinstate charges dismissed following a trial.
Hammer also raises a very week challenge to the sufficiency of the evidence, asserting that the officer’s testimony identifying Hammer as the driver of the vehicle was not worthy of belief. Having found that the evidence was credible, the Court affirms both the convictions and the revocation, noting also that it was refusing various motions filed pro se by Hammer. In doing so, the Court thanked Hammer’s appointed counsel for his candor in stating that he was aware of these motions and had “incorporated into his argument whatever points counsel thought meritorious.” Appointed and retained attorneys both should take not of this statement and remember that it is worth preserving your ethos with the Court by acknowledging that you have competing duties to your client and the tribunal and sometimes must walk a fine line between the two.
The Court decided two additional criminal cases in published opinions today, Dawan Anthony Glass v. Commonwealth of Virginia is notable for its discussion of whether the cost of repairing damaged property can include a reasonable profit for the contractor performing the repairs as part of the “fair market value” when determining whether a charge under Code § 18.2-137 is a misdemeanor or a felony. Glass has the added twist that the victim whose property was damaged owned a contracting business and had his employees conduct the repairs.
The opinion does not tell us any of the background apart from the fact that Glass, ironically given his name, had a penchant for breaking windows. Specifically, he broke a window belonging to Rodney Barnett and several windows and a storm door and internal doors belonging to Steven Decker. Barnett and Decker lived on the same street in Danville with the equally ironic name of Willey Avenue, which was misspelled as “Wiley” in the transcript.
Now, why, dear reader, do I say that the same of the street is ironic? Clearly, Mr. Glass breaking glass windows is ironic, but as he was easily caught, he was far from “wily,” but that it not the irony of the street name. You see, we simply do not know why Glass was motivated to cause this mayhem – perhaps he had some personal animosity toward the two homeowner or possibly he may be Danville’s version of a latter-day Ernest T. Bass. If you watch the video in the link, you will discover that Mayberry’s resident window-breaker had some “Willey” troubles of his own.
In any case, the issue at Glass’ trial was whether the cost of the repair of the windows and doors at Decker’s home pushed the level of the offence from a misdemeanor to a felony. The threshold for elevating the offense under Code § 18.2-137 is $1,000 and Decker testified that he would have charged $1,165 to perform the work for a customer. He also testified that he had to pull employees off another job to perform the work at his home.
Glass contended that the circuit court should strike the felony charge because Decker’s testimony gave a retail price that included profit, not a wholesale price, which he contended was the “fair market value” of the cost of the repair. Glass also maintained that in testifying to the cost of the repair of the single window broken at his home, Barnett had not included any “profit” but merely testified as to the cost of replacing the window. The circuit court disagreed and convicted Glass of both the felony, for the damage to Decker’s home, and the misdemeanor for that to Barnett’s.
Glass appealed only the latter conviction, asserting that the court erred in not reducing the cost of the repair to exclude the profit. He asserted that this was the proper measure of damages in such cases generally, but even if not, it should be so in the case where the repair is made by the owner who would be “self-dealing” if he included profit in the cost of the repair. He also argued that the court improperly considered two different standards of damages by accepting Barnett’s “wholesale” estimate and Decker’s “cost-plus” estimate.
The issue of how a court determine the “fair market value” of the cost of repairs under Code § 18.2-137 is an issue of first impression. The Court notes that while there is no case on point with respect to that statute, “fair market value” is a term of art well defined in Virginia case law. That term traditionally includes a fair profit, rather than the literal cost of repair or replacement of the property, and so the Court determines that it should likewise include profit under Code § 18.2-137.
In a footnote, the Court acknowledges that some other jurisdictions have expressed discomfort with the use of profit as part of the calculation in determining the level of an offense based on a monetary factor. The Court does not say why it is making this observation – which is somewhat unusual, as the “concerns” of other jurisdictions are rarely factors in the Virginia appellate courts’ analysis – perhaps it is merely to acknowledge that the issue was not wholly without merit, or possibly it was a tacit request that the legislature address the issue in order to alleviate such concerns. This could be accomplished quite easily by amending the statute to specify that fair market value shall (of shall not) include a fair profit.
With respect to the different measure of damages for the two charges, the Court notes that Code § 18.2-137 uses the cost of repair as a permissive basis for determining the monetary value of the damages. Thus, the Commonwealth was not required to use the same method of determining the value of the damage for both charges. This raises the interesting point of how damages would be determined where repair or replacement was not possible – for example the destruction of a nonfungible antique stained-glass window. Insurance value, perhaps?
Glass does win one small victory with respect to his claim that Decker should not have been able to include the profit in his estimate where he had his own company perform the repair work. The Commonwealth contended that even if Decker was not permitted to include the “profit” he testified that by redirecting his employees to perform the work, he lost profit for other work which was part of his damages, and also that there was lost rental income on the property, a duplex which was a partial rental, as a result of the damages (though the Court found that this was “far from clear” in the record). The Court disagrees, stating that the statute specifies that the damages are the fair market value of the repair, not any consequential damages. This is fair, as it avoids opening a Pandora’s box of issues, e.g., whether the homeowner could claim as part of the damages the increased cost of heating or cooling the home due to the broken window causing outside air to enter the home, etc.
So, Glass wins of this point, but loses the main issue of whether Decker’s testimony was therefor not sufficient to establish the felony-value of the damages. Why? Because Glass never objected to Decker being allowed to testify to the fair market value of the repairs based on his alleged “self-dealing” at trial. Rather, for the first time on appeal he contended that Decker was not an expert (or at least did not qualify as one) and was biased in offering his estimate of the cost of the repair. Because the evidence was not objected to at trial, the Court concludes that the circuit court was within its province to accept Decker’s testimony as credible and unbiased.
The final point of this appeal is in yet another footnote. The Court recognizes that having the homeowners testify as to the quantum of their damages as lay witnesses goes against the usual practice, at least in civil cases, of establishing fair market value through expert testimony. However, this issue was not raised by Glass in the trial court on appeal, so the Court “decline[s] to determine whether expert testimony must be given to prove fair market cost of repair in a criminal matter.” Ahem . . . criminal defense attorney’s out there please take the hint.
The third criminal case is Todd Moses Sorrell, Sr v. Commonwealth of Virginia. Sorrell applied for a concealed handgun permit and, as required, completed and signed that application under penalty of perjury, including asserting that he had not been convicted of any misdemeanors within the last five years. Unfortunately for Sorrell, he had two prior misdemeanor convictions during that time frame. So, not only was his application denied, but he was also charged with perjury.
Now written perjury can come in several different forms. In this case, it’s unsworn perjury, meaning that the defendant was not placed under oath before signing the document. For an unsworn declaration to be the object of a perjury charge, the document must conform to Code § 8.01-4.3, which requires certain language to be included in the document, usually, though not necessarily, right above the signature line.
That language is “I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.” The statute says that the language must be “substantially” in the prescribed form. The application for the CHP Sorrell signed had this language: I, the undersigned, affirm that the information contained in this application . . . is both correct and complete to the best of my knowledge. The willful making of a false statement in this application constitutes perjury and is punishable in accordance with [Code] § 18.2-434 of the Code of Virginia.” At trial and on appeal, Sorrell contended that this language was not “substantially” similar to the language of Code § 8.01-4.3.
As he contended this both at trial and on appeal, we know that the circuit court did not agree. Neither does the Court of Appeals. The purpose of the language in an unsworn document is to “impress[] s upon the declarant that the person is making the encompassed statements under threat of penalty of perjury and that the information is accurate.” The Court finds that the language of the application satisfies this requirement.
As usual, I have saved the best for last. Just kidding. The last case is C. Ray Davenport, Commissioner of Labor and Industry v. Utility Trailer Manufacturing Company, an administrative law case, and faith readers of this blawg will recall that my interest in administrative law ranks somewhere below watching “Keeping Up With the Kardashians,” which I would rather avoid by having my eyes burned out the carbolic acid and my ears wax sealed with fire ants inside. Davenport is a 26-page opinion which deals with two rulings of the trial court which was reviewing the issuing of a citation to Utility Trailer by the Virginia’s version of OSHA, the Virginia Department of Labor and Industry Occupational Safety and Health Administration which is abbreviated VOSH (why it’s not VOSHA is anybody’s guess, and that’s about the most interesting thing in this opinion.
With all due respect to Judge Humphrey’s very thorough and diligent discussion of the facts and issues in this case, I will save you having to read all 26 pages by summarizing the result, which reverses in favor of the Commissioner and remand for a new trial, thusly: the particular procedure in this case is unusual in that it requires the Commissioner, not the party contesting a citation for a violation by VOSH, to bring the matter before the circuit court. Thus, the matter is not a certiorari proceeding under the Virginia Administrative Process Act, but a de novo civil proceeding.
Now normally, rulings in a civil proceeding would be given great deference on appeal with a favorable review toward the appellee. But in this case, the Court of Appeals finds that the circuit court’s judgment was based on an incorrect construction of the law pertaining to what the Commission was required to prove with respect to the alleged violation, thus the Court reviewed the matter de novo. Furthermore, because the circuit court granted Utility Trailer’s motion to strike after excluding the evidence, the Commissioner has the added benefit of the Court reviewing the evidence that was received in a favorable light to him, an unusual position for an appellant.
So, with respect to what the Commissioner was required to prove, the Court concludes that the circuit court erred in interpreting the regulation alleged violated as requiring that an actual hazard occurred – that is that an employee was placed at actual risk of harm – rather than merely a potential risk of harm. This makes good sense when you consider that the purpose of VOSH is limit workplace accidents by finding violations during regular inspections before an injury occurs. While VOSH also investigates instances of workplace injuries, it’s obviously better for regulations to be enforced before an employee is actually put at risk, not after.
The other issue was whether the circuit court erred in excluding a post-accident report prepared by Utility Trailer because it included evidence of remedial measures taken to correct the issue. Wait . . . what? Didn’t the Court just rule that the circuit court misapplied the law by requiring to the Commissioner to show that there was an actual hazard, only that there was a potential one? Surely if there was an actual accident, that issue was moot. Well, no, because the circuit court excluded the accident report entirely, and then granted the motion to strike because the evidence did not prove an actual hazard or a potential one.
The Court concludes that the report, properly redacted, should have been admitted as a party admission. Utility Trailer argued that the error was harmless, but the Court disagrees, noting that even in a redacted form, the report would have established that a dangerous, or at least potentially dangerous, condition existed and would have allowed for a line of questioning based on that foundation.