Circumstances at the Virginia Appellate Lawyer Social Media Bunker permit to address the single published opinion of the Court of Appeals of Virginia in a more timely fashion than last week or week before.
Jai A. King v. Commonwealth of Virginia poses the interesting question, “Can one “escape” from a detention that takes place in one’s own home while being electronically monitored by big brother the local constabulary. As the headline has already give away the answer, I shall not keep you in suspense — yes, yes one can. Here are the details: Mr. KIng was at some point in the past convicted of a felony. Later, he was found in possession of some ammunition. It may come as a surprise to those not familiar with the “felon in possession” law that having ammunition alone, with no gun to put it in and fire it, is still frowned upon in Virginia. So much so that Mr. King faced five years in prison. The court suspended three and remanded king to the custody of the local sheriff.
Now here is something that may likewise come a surprise to some — although felons are supposed to be packed off to a state penitentiary after conviction and sentencing, quite a few of them never make it out of the local hoosegow. There are reasons for this, but suffice to say that so long as they remain in the local jail (including a regional jail that to most looks and awful lot like a prison — perhaps I will get around to writing an essay explaining the intricacies of the different places we house of burgeoning population of inmates one of these days), the rules applies to their housing are the same as any other local inmate — and that means they can qualify for release to a residential situation subject to some form of monitoring — electronic ankle bracelets currently being all the rage.
This, Mr. King found himself after a time back in the bosom of his loving family (I am assuming here — perhaps he is a bachelor and lives alone) with the aforementioned fashion accessory strapped to his leg. He was allowed to remain at his home and travel to and from work. Apparently, however, he was in desperate need of some commercial product and decided that a short trip to a local market would not be too much of a stretch on the limits of his tether. Likely all would have been well, except that Mr. King drove to said store, was stopped by a local gendarme (we don’t know what for) who discovered that Mr. King was not presently authorized to drive and was duly issued a summons for said offense.
Apparently recognizing that this would potentially alert authorities to his having taking the unauthorized sojourn, King contacted the Sheriff’s Department and reported his transgression. “No problem,” said the deputy who took the call, “just come in and let me make a copy of the summons for the file.” Now at this point we need to speculate what went through Mr. King’s mind. It’s possible he heard General Akbar shouting “It’s a trap!” and reasoned that if he went to the Sheriff’s Department, he would be immediately arrested for breaking his house arrest; perhaps he thought that copying the summons was just a preliminary, and he would be arrested later; or, perhaps he just decided that he this was as good a time as any for a change of scenery.
Regardless of his through processes, what we know happened was that shortly after taking King’s call, the same deputy received an alert that King’s monitoring bracelet had been tampered with. Unable to raise King on his cellphone, the deputy went to the last location of the monitor and found it there . . . just not King. Elvis had left the building . . . or rather the off-ramp of the Interstate were the bracelet was found with its strap cut through (you’s think they would make those straps a little sturdier, wouldn’t you?).
Cutting to the chase (quite literally), a warrant was issued for King’s arrest on a charge of felony escape and he was subsequently arrested after about three weeks of freedom. At trial, King argued that he couldn’t be guilty of escape, because he was not in a jail or prison or otherwise in the physical custody of the Commonwealth. The trial court rejected King’s argument, convicted him, gave him five years with one to serve (and likely some comeback time from the felon in possession conviction) and presumably sent him back to the Sheriff where he likely applied for home release.
Today, the Court of Appeals affirms the conviction. The Court notes that Code § 18.2-479(B) makes it a felony for “any person . . . in the custody of any court, officer of the court, or of any law-enforcement officer on a . . . conviction of a felony” to escape from that “custody.” Now you probably noted that unlike some similar statues, there is no mention of being under “arrest” or in “jail” or being “imprisoned.” The Court of Appeals recognizes that custody “requires more than purely constructive control over a person. Davis v. Commonwealth, 45 Va. App. 12, 14-15 (2005). However, it includes circumstances “involving less deprivation of liberty than absolute confinement.” White v. Commonwealth, 267 Va. 96, 104 (2004).” Noting that the whether electronic home monitoring is a form of “custody” is an issue of first impression, the Court concludes that it fails squarely with in the White definition of a definition of a “depravation of liberty” that is less than absolute confinement, but still subject to control by the court and the police power of the state. The Court reaches this conclusion even though there is a lesser punishment available for tampering with a monitoring device in the statutory scheme authorizing such programs. Expect an appeal to be noted to the Supreme Court.
I freely admit that this post is overdue. The last several weeks have seen some frenetic activity in the Virginia Appellate Lawyer Social Media Bunker, but none of it was related to coverage of the most recent published opinions of the Virginia Court of Appeals, so my apologies. On to the opinions.
Over the last two weeks, the Court of Appeals issued four published opinions, and each has some aspect that should pique the interest of more than a few of you. Here is a preview so that you can decide where to start. There are three criminal appeals and one appeal from the Workers’ Compensation Commission. I put the WCC opinion last, but attorneys may want to skip ahead to that one if they are at all interested in learning how not to lose a $50,000 fee (hint, don’t wait five years to ask to get paid). The three criminal cases involve vastly different issues – Child Abuse, Blood Spatters, and a defendant who wanted to be evaluated for potential sexual deviancy.
Christina M. Mollenhauer v. Commonwealth of Virginia involves a charge of child cruelty under Code § 40.1-103. [Editor’s note: Because I have been consulted on a possible appeal to the Supreme Court of Virginia in a related appeal, the analysis of this case has been removed from the blog; it will be restored when the appeal is concluded.]
Lemar Jason McDaniel, Jr v. Commonwealth of Virginia involves a topic more usually confined to television drama and Agatha Christie novels – blood spatter evidence. McDaniel was convicted of second-degree murder of Devin Harrison with whom McDaniel was involved in a relationship that ended badly. [Editor’s note: The Court of Appeals chose to classify this relationship as “romantic,” but the evidence suggests that it was more in the nature of an abusive and controlling relationship; court’s need to use greater care in choosing such descriptors.] The precise details of Harrison’s death are not known, though the evidence suggests that she died in the home she shared with McDaniel, who then sought to cover up the crime in an unsuccessful effort to clean blood from the furniture, floors and walls using bleach. Further attempts to hide the crime involved text messages sent from Harrison’s phone to her mother in the days following her disappearance.
Police subsequently found Harrison’s body in a trash can several houses away from her own along with documents related to various criminal charges against McDaniel. Police later went to McDaniel’s home (which he had maintained separate from the residence he shared with Harrison), and he consented to them conducting a search which recovered shoes with apparent bloodstains. McDaniel did several other foolish things at this point, lying to police by saying he did not know Harrison was missing (he had been with the parents when they discovered Harrison was not at home and her house had been ransacked and partially cleaned) and claiming to have communicated with her online in the days following her disappearance during which she threatened to harm herself (as McDaniel undoubtedly knew that Harrison’s body had been stuffed in a trash can, he should have realized that people who commit suicide don’t usually dispose of their own bodies)..
We pause here to address that last observation that McDaniel behaved foolishly. People who commit crimes are rarely consummate criminals of the suave Raffles variety or the harden Al Capone variety. They are usually people who have done something incredibly stupid and are entirely out of their depth. As a result, they do incredibly foolish things – like lying to the police. There is only one thing worse than lying to the police when you are guilty, and that is lying to the police when you are innocent. If you are not familiar with Prof. James Lewes’ lecture (and subsequent book) “You have the right to remain innocent,” please Google it after you finish reading this post.
As you have probably discerned, McDaniel was arrested and charged with Harrison’s murder. At his trial, the Commonwealth sought to introduce expert testimony from Angie Witt, a special agent with the Virginia Department of State Police. Witt was trained in blood spatter analysis and was prepared to offer an opinion based on photographs of the crime scene and of McDaniel’s shoes. McDaniel sought to exclude her testimony on the ground that she had not demonstrated sufficient expertise in this area and that even if she had such expertise, she could not render a valid opinion based on photographic evidence.
The first issue is easily disposed of. McDaniel based his argument solely on expert qualifications for blood spatter analysis in a 2009 publication by the National Research Council. Although the NRC is a quasi-governmental organization, it has no standing with respect to qualification of expert forensic witnesses. Moreover, the determination of whether a witness has the necessary background, training, and experience to provide expert testimony is left almost entirely to the discretion of the court. Here, there was considerable evidence that Witt had not only received specialized training in blood spatter analysis but had trained others and had testified in many trials. This was sufficient for the trial court to certify her as an expert, and the Court of Appeals will not gainsay that determination.
The more interesting issue is whether Witt’s opinion carried any validity when it was based on her review of photographs taken of the crime scene, not her personal knowledge of the scene. Witt testified that of the 200 cases she had been consulted on blood spatter evidence issues she had relied solely on photographic evidence in virtually all of them, but she also testified that it was “always helpful” to see the crime scene firsthand. This seems a contradiction because it suggests that something that is “always helpful” is also rarely done. Nonetheless the Court of Appeals concludes that because Witt’s expertise was derived primarily from the study of photographs of blood spatters, her reliance on photographs in this case was not improper.
Finally, McDaniel contended that because Witt had consulted with the Commonwealth’s Attorney about the photographs and testified as to what she had been told, her opinion was based on hearsay which was not in evidence. The Court of Appeals ruled that because McDaniel did not object to the admission of the photographs (or, more precisely, a particular photograph of the blood spatter on McDaniel’s shoe), any question regarding the accuracy of what the photograph depicted, and thus of Witt’s opinion thereon, was a matter for the jury to determine.
Justin Blake Cox v. Commonwealth of Virginia involves a plea of nolo contendere to several sexual offenses involving a minor. Because a nolo contendere plea, or plea of no contest, effectively operates as a waiver of the right of appeal – the plea is functionally the equivalent of a guilty plea, which also waives the right of appeal, except that the defendant is only conceding that the evidence is sufficient to prove his guilt, not the he is actually guilty – it probably is a surprise to some that this case not only was granted a writ, but resulted in a published opinion. If that were all you knew about the case, you would probably be thinking that a reversal of the conviction is awaiting Mr. Cox at the end of the opinion because he must have found some way around the waiver and had a really good argument as to why his plea was invalid. I wouldn’t blame you for thinking that, because typically an invaid plea is thought to be the only basis for setting aside a guilty or nolo plea. .
Most attorneys will generally refer to the waiver of appeal by a guilty or nolo plea as a hard and fast rule. That’s because you can avoid the waiver by entering an Alford plea which preserves the right of appeal – though many Commonwealth’s Attorneys will not offer a plea deal if the plea is an Alford plea. So, they reason, no Alford means no appeal – and they are right with respect to an appeal that challenges the sufficiency of the evidence or any pre-trial error. However, the waiver does not apply to errors alleged to have occurred after the plea is entered. Typically, these fall into two categories: 1) failure of the court to set aside the plea and, 2) an act or omission of the court in sentencing that is contrary to the law. [Editor’s note: There is a third category that rears its very ugly head on occasion, and that is when a defendant enters a plea and is convicted of a crime that doesn’t exist. It’s actually a little disheartening how often this happens – particularly because it can only result when a prosecutor, a defense attorney, and a judge all fail to recognize that what the defendant is accused of does not violate the law.]
In Cox’s case, it was an alleged omission by the court after accepting the plea, but prior to sentencing that was subject to challenge on appeal despite the waiver. Cox’s plea agreement got rid of the most serious charges, which involved his sexual relationship with his teenage niece who was 20 years younger than Cox, in exchange for his nolo plea to two lesser felony sex offenses and two misdemeanors. Sentencing was left to the court’s discretion, possibly with a recommendation from the Commonwealth. The court sentenced Cox to a total of 102 years for these offenses, suspending 80 years (the opinion does not make clear whether the two felony sentences and the misdemeanor sentences were to run consecutively or concurrently, but other sources confirm it was the former). This was about six years above the sentencing guidelines.
Before the court entered the written sentencing order, Cox filed a motion to vacate the sentence, asserting that the court was required under Code § 19.2-301 to obtain a psychosexual evaluation of a defendant charged with sex offenses before imposing sentence. Presumably, Cox believed that such a report would show that he was not a sexual predator and, thus, convince the court to reduce his sentence. [Editor’s note: This seems a huge risk, given that a report that Cox had predatory tendencies would probably have resulted in the court deciding that 102 years was just about the right amount of time for Cox to serve.]
The trial court ruled that the post-conviction evaluation was not required unless requested by one of the parties prior to the sentencing hearing; it can also be ordered by the court sua sponte, but neither of those things happened. The court concluded that Cox’s motion, even if interpreted as a request for an evaluation, was too late despite the court not having entered the sentencing order.
The Court of Appeals affirms. As is often the case when a statute is being interpreted, the appellant wants the courts to focus on a particular word or phrase rather than the entire statutory scheme which is its context. The courts response to such arguments is often called the “read on rule.” Simply put, neither a word or phrase in a statute is to be read in isolation and similarly statutes are “to be read in pari materia with other statutes that address the same subject matter.” [In pari materia is Latin for “upon the same subject” so the typical use of the term is redundant.]
In this case, the Court concludes that Cox was focusing on a single sentence, and more particularly a single word, which said that the trial court “must” order an evaluation. Under the read-on rule, however, it is clear that the court “must” do so only if a proper request is made or the court otherwise believes that an evaluation will be beneficial to its determination of the sentence, and as no such request was made before the sentencing hearing, the court was not required to do anything. While the court could have acceded to Cox’s request because the matter was still under its jurisdiction, it had complete discretion as to whether it would do so.
Because I know a little about such evaluations (quite a lot actually) from reviewing Sexually Violent Predator cases, I can say that Cox probably dodged a bullet here. One of the key factors in determining whether a defendant presents a future risk as a sexual predator is whether he accepts responsibility for his prior acts of sexual violence. As Cox’s plea of nolo contendere suggest that he would not do so, there is a strong possibility that the evaluator would err on the side of caution and opine that there was at least of possibility that Cox was a predator. In which case, perhaps the judge would not have imposed the whole 102 years – but I am betting he would have at least doubled the 22 years Cox is presently facing, figuring that he would be less of a threat if released at age 80 rather than age 58.
Mayes Marks, Jr v. Henrico Doctors’ Hospital/HCA is an appeal from a denial of attorney’s fees in a Workers’ Compensation Case. Like several other opinions from the Court of Appeals in recent months involving claims made to the Commission, this one raises the question “What the H*** took you so long?” Readers may recall that two prior cases summarized in this space, Atlantic Orthopaedic Specialists v. City of Portsmouth and Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation both involved the failure to request reimbursement from a self-insured employer for services covered under a compensation award until well past the statute of limitations – and in both cases the Court of Appeals found that the unexcused delay in seeking payment was, well, not excusable.
Marks represented a provider, not the claimant, in this matter – the hospital where the surgery was performed. It is not clear why the employer was not willing to pay the hospital bill, which was just over $200,000, as the award for the claimant was not disputed, but it refused to pay.
When a payment is owed to a provider under an award from the Commission, the provider must go to the Commission to seek relief. Marks got the Commission to order the employer to pay the hospital and, thus, was entitled to recover his fees from that award – 25% of the bill, which one assumes was a contractual agreement between Marks and the hospital. All of this happened within the time constraints that sunk the providers in Atlantic Orthopaedic and Summit Pharmacy, so what’s the problem?
Well, remember that we just learned that a provider must go to the Commission to enforce an order and recover for services rendered to a claimant? That is also true of an attorney who wants to collect a fee for work before the Commission. One would think that because the agreement between Marks and the Hospital was a contract, he could sue in the circuit court – but the Commission typically includes provision for attorney’s fees awards in its orders, so it is the Commission that has the power to enforce payment of the fee as part of its order. [Editor’s note: I doubt a circuit court would refuse to entertain a breach of contract action under these circumstances, even assuming that the provider’s counsel would thing to raise the issue of the Commission’s jurisdiction. However, because Marks went to the Commission it seems likely that even if he could try again in the circuit court, he would be barred by res judicata. In fact, as we shall see, Marks may have chosen the Commission as his form quite deliberately because of another potential stumbling block to suing for breach of contract . . . the five year statute of limitations on such actions.]
For reasons not explained in the opinion (probably because the explanation is reminiscent of Steve Martin’s advice on how to avoid paying taxes; he suggested that when the IRS came calling you should just say, “I forgot.”), Marks did not make any effort to obtains his fee from the hospital for two years after the award – and then sent the request by email . . . to the wrong email address . . . three times. Marks asserted that he did not receive any “bounce back notices,” but by the same token he did not seem overly concerned that none of his emails received a reply and no check appeared in the mail.
In fact, his level of concern was so limited that he did nothing more for another three years, when he finally went to the Commission to enforce the order that included his fee. Now most of you are probably wondering how this case even made it to the Court of Appeals, as waiting five years to pursue a claim for fees before the Commission seems to fall into the same category as providers who wait years to seek payment – it is in fact longer than the claimants in Atlantic Orthopaedic and Summit Pharmacy waited. But, as it turns out, the Deputy Commissioner who reviewed Marks’ claim concluded that unlike the claims for services rendered to a claimant, the limitations period for seeking recovery under an award by a provider did not apply to a claim for attorney’s fees for representing the provider. The Commission’s rule on this question is Rule 6.2(A)(3), and it does seem to be a little vague on just when an attorney should seek to collect his fees.
The employer appealed to the Commission, which reversed in a 2-1 decision. The majority ruled that there was a “reasonable time” requirement to seek fees under an award and that Marks had not actually conveyed a claim to the Hospital (because of the misdirected emails) until it was served with the petition to the Commission, and that was just not within a reasonable time. The dissent concluded that the Commission did not have the power to imply a reasonable time limitation where the rule did not contain any basis for doing so – requiring only “reasonable notice.”
The Court of Appeals resolves this case on the well-worn principle that the Commission, or any administrative body, is in the best position to interpret its own rules and that if two of the Commissioners thought Rule 6.2(A)(3) was subject to a reasonable time limitation, that was good enough for the Court.
Now this is an interesting case because it seems to be that “reasonable notice” must mean something more than just using good penmanship when filing out the request to be paid. But I am not sure that it necessarily means “notice in a reasonable time,” or at least not just that. What, for example, would be reasonable notice for a fee of just a few hundred dollars as opposed to the $50,000 Marks was entitled to? Does it make a difference that the hospital could have easily paid (presumably), whereas some other claimant might find payment of that amount years afterwards to be a hardship. Another curious aspect of the rule is that it also required the parties to make a “reasonable effort to resolve the claim” before going to the Commission, which did not happen here and might have been a further stumbling block to Marks getting his payday..
The Court of Appeals released three published opinions and five unpublished opinions today. If one didn’t know better, you might suspect the Court was clearing the decks before the summer hiatus (Editor’s note: One does know better and that is exactly what the Court is doing, look for more opinions leading up to the Fourth of July Weekend).
Romario Bailey v. Commonwealth of Virginia involves a misdemeanor appeal from a case that originated in a General District Court, which is a fairly rare animal to see in a published opinion. The issue is whether the circuit court erred in denying a continuance on the appeal date. Bailey represented himself pro se on an assault charge in the General District Court – the opinion recounts the nature of the offense, but as it isn’t germane to the issue on appeal, I will refer you to the opinion if you wish to know the details. What is germane is that Bailey hired counsel for the de novo appeal, and he and his counsel appeared on the trial date. Counsel immediately requested a continuance because there were two witnesses who were not present and were, counsel contended, essential to Bailey’s case.
We pause here to give a two brief practice points for any novice attorneys out there: If a witness is essential to your case, subpoena them. I don’t care how much they assure you that they will be present, how much they love, cherish, and respect your client, or how inconvenient it is for you to have the subpoena issues. Subpoena them. Full stop.
Next, misdemeanor appeal days are probably the least favorable days to ask a circuit court judge for a continuance. No, strike that. The ARE the least favorable days to ask for a continuance. Appeals from misdemeanor convictions just don’t rate that high on the circuit court’s list of “things I really enjoy about this job” for the judges. If you need a continuance, ask in advance (the earlier the better). If you just want a continuance, suck it up. If your schedule is too busy and you think that the misdemeanor appeal should be continued so that you can go to that deposition two counties over, prepare to be on the circuit judge’s persona non grata list (persona non grata is Latin for a four-letter euphemism for excrement). Misdemeanor appeals are great for letting an associate cut their teeth on circuit court practice, so when agreeing to take the case, make sure you explain to the client that your very competent associate may do the actual trial. If you don’t have an associate, see the response to what to do if you want, but do not need, a continuance.
Now, back to our original programming. It turns out that Bailey had retained his counsel just three days prior to the trial. He gave the court some reasons why he had delayed in hiring counsel, but the circuit court appeared unmoved. The Court of Appeals added a footnote at this point to say that neither Bailey nor his counsel had made any attempt to seek the continuance during those three days. The circuit court “respectfully denied” the continuance but moved the case to the end of the docket to allow Bailey and his counsel time to prepare. (A lesser mind would think that the court was making sure that Bailey’s counsel had to remain in the court rather longer than anticipated – a lesser mind would be wrong; the court was making a genuine effort to give Bailey a fair shot – the inconvenience to counsel was just a bonus).
Now let me suggest that Bailey’s counsel was perhaps not well-versed in criminal cases, or at least not in the more formal procedures that apply to the circuit court. Suffice to say that the Court of Appeals notes several deficiencies in counsel’s performance: 1) counsel did not make a formal objection to the denial of the continuance on Sixth Amendment grounds (or really any grounds); failed to make a motion to strike at the end of the Commonwealth’s evidence; asked to proffer the expected testimony of the witness, which the circuit court said it would allow, but counsel then conceded that he had not spoken to either witness and had only Bailey’s assurance that the witnesses would support his version of events; and did not move to strike the evidence at the close of the case.
After he was convicted and sentenced, Bailey hired new counsel – but this counsel proved no more adept at the niceties of trial practice. The new counsel filed a motion for reconsideration 14 days after the sentencing order was entered. This motion set out the arguments that the original counsel should have made at trial.
Counsel did not file a corresponding motion and order to suspend the judgment or request the circuit court to act on the motion within 7 days. Now the circuit court again stepped in to try to make sure that Bailey was getting a fair shake and sua sponte set a hearing on the motion on the 21st day following the sentencing order, heard argument, and “respectfully denied” the motion for reconsideration from the bench (more about this ruling below).
Experienced hands know where this going – the order denying the motion was not circulated and entered by the circuit court until the following day – the 22nd day after the final judgment. No one could argue that the judge, having given Bailey a break by setting the hearing on the last possible day should have entered a bench order at the end of the hearing. But the judge was certainly not required to do so – and counsel should have known that the Rule 1:1 deadline was at hand and acted with expedition.
It will come as no surprise that the Court of Appeals finds that the appeal, which challenged the denial of the continuance for the reasons stated in the motion for reconsideration, was not subject review because the circuit court never ruled on the motion while it had jurisdiction over the case. Trial courts speak only through their orders, and here the order was entered 1 day beyond the court’s jurisdiction to do so.
So, what about the ruling on the motion for reconsideration? If the appeal had not been barred, would the Court of Appeals have reversed and remanded for a new trial? Probably not. “But, but, but . . . you said the motion had all the right arguments!” Yes, it did, but these were arguments that should have been made at the trial not 14 days later. The contemporaneous objection rule doesn’t apply just on appeal – the circuit court was within its discretion to decided that the arguments of the motion came too late. As for Bailey, well he has adequate grounds for a habeas action as I think there is ample evidence of ineffective assistance of counsel. However, he will also have to prove that but for these errors the result of the criminal case would have had a favorable result and given the he said/she said nature of that evidence, and a certain sense one gets that Bailey was less than credible and his “witnesses” have never been placed under oath, I seriously doubt the court will find his acquittal was close to a sure thing.
Moussa Moise Haba v. Commonwealth of Virginia involved Code § 18.2-386.1 (not 286.1 as mistaken stated in the summary on the Court’s website), which makes it a crime to take photographs of a person without their permission through surreptitious means in a situation where the person would have a reasonable expectation of privacy. Basically, were talking about “peeping tom” situations aided by advance technology.
Now, the facts of this case are not the usual “hidden camera in the restroom” scenario. The victim and Haba were acquainted over social media and eventually the victim agreed to meet with Haba at her apartment (never a good idea when first meeting someone from known only through social media). Things did not go well. Haba was “very controlling,” and claimed to already have videos of the victim that he would turn over to “the Saudi authorities.” The victim was a Saudi national and in the US on a government sponsored scholarship. Using this as leverage, Haba coerced the victim into permitting him to video her undressing. She initially shielded herself with a blanket, but Haba insisted that she drop the blanket. She then tried to cover herself with her arms. Following the incident, the victim contacted police, and Haba was arrested, who was charged with abduction and the violation of Code § 18.2-386.1.
Regrettably, the jury found the evidence of abduction to be insufficient (I am not saying it was a slam dunk, but had Haba been convicted, I would not have expected a reversal for lack of sufficient evidence). The jury did convict Haba of Code § 18.2-386.1 with a sentence of 10 ½ months, a sentence that I feel is inadequate, but the maximum sentence of 12 months — Code § 18.2-386.1 is a class 1 misdemeanor – would hardly have been adequate either. Unfortunately, the law does not always correspond in severity to the specific facts of a case.
Haba’s appeal was limited to challenge only one aspect of the elements of Code § 18.2-386.1 – whether the victim had a reasonable expectation of privacy under the facts of the case. After all, Haba contended, he was right there in the room with her, and she knew he was videoing her. I am pleased to say that the Court of Appeals response was, and I am paraphrasing here, “Perhaps, but there was a helluva lot more going on than just that.” In short, everything about the situation suggested that Haba was using extraordinary pressure to force the victim to surrender her expectation of privacy and she was doing everything possible to maintain it.
One final note. I started this post off by mentioning that published opinions dealing with misdemeanors originally appealed from the General District Court were rare animals – yet here is another misdemeanor conviction as the subject of a published opinion. Except this is not a case of an appeal from a case originally tried in a General District Court. Because Haba was also charged with a felony, the misdemeanor was tried in the circuit court in the same trial as the felony. Still a pretty rare animal.
Michael Moreno, s/k/a Michel Moreno v. Commonwealth of Virginia is the only case from the published decision of the week from felony convictions, and they are serious ones: first degree murder and felony hit and run. The facts are more tragic than sinister. Moreno lived with his mother, who contracted lung cancer. His sister Nancy become the principal caregiver for the mother during a length hospital stay. Moreno believed that traditional treatments were not effective and urged his sister to try alternative therapies, but she disagreed. Eventually the mother was returned home – although the opinion does not expressly say so, it appears this was for hospice care.
After the mother died, Nancy remained in the home to care for Moreno. Moreno told several people that he blamed Nancy for their mother’s death. On the July 12, 2018, Nancy had to travel for work and arranged for Moreno to drive her to Dulles Airport. Under circumstances that were not entirely clear, Moreno pulled the vehicle to the shoulder near Dulles, Nancy exited the vehicle and began walking toward the airport. As observed by two witnesses, Moreno then drove forward at a high rate of speed directly at his sister then drove away at high speed after striking her and driving over her. One motorist pursued the fleeing vehicle and called 911. Another motorist, who also observed the accident, stop to render aid. Nancy was transported to a nearby hospital but died soon after.
Police identified Moreno as a suspect and, when unable to contact him on his cellphone, obtained the location of the last “emergency ping” from his phone. Using this data, police were able to locate Moreno at a casino in Anne Arundel, Maryland, and the vehicle he had drive was in the parking lot. When approached by police, Moreno immediately asked “How is my sister?”
Following his arrest and indictment, Moreno sought to suppress evidence collected from the vehicle at the casino. Moreno contended that unlike “historic” cellphone location data, which he conceded has been found to be proper evidence to show a defendant’s whereabouts, the use of “live” data to track a suspect was an invasion of privacy. The circuit court overruled the motion and following a jury trial Moreno was convicted and sentenced to 38 years’ imprisonment.
On appeal, Moreno again asserted that it was improper for police to obtain live cellphone data without a warrant to ascertain his location and, thus, any evidence derived from his arrest at the casino was “fruit of the poisonous tree.” The Court of Appeals, “assuming without deciding” that a warrant would normally be necessary, holds that probable cause and the exigent circumstances justified the warrantless “ping” of the cellphone. The Court reasoned that one of the exigent circumstances permitting a warrantless search is the pursuit of fleeing suspect who may present an ongoing danger to the public or be in the position to destroy evidence.
I suspect that this case may be of interest to the Supreme Court of Virginia, if not the United States Supreme Court, presuming that Moreno decides to pursue the matter. This is a developing area of the law and by no means settled.
Something not mentioned in the Court’s opinion is that Moreno has “neurocognitive disorders,” which were caused or exacerbated by a head trauma 25 years ago. Family members testified that he was “odd” and difficult to relate to. Additional reports of the trial give a vivid picture of how this tragedy has impacted Moreno’s other siblings. What is clear from these reports is that Moreno was not receiving any outside assistance from the government or private organizations during the many years leading up to the murder. It is not difficult to speculate that the stigma attached to mental health disorders that persists in this nation was in part responsible for his isolation and inability to cope with the reality of his situation. While this is not ground to excuse his brutal act, it is yet another example of how we continue to fail those who are the least among us.