So today I received my very first “vanity award” notification. If you are not familiar with the term “vanity award,” its basically advertising in the form of a notification that you have been nominated or selected or are under consideration for a prestigious award such as “Best Bombastic Barristers of the Boondocks” or “Liberty Loving Lawyers,” etc. To receive the “award” however, you have to be a member of the “association” that bestows the award.
As one observer has put it, you are basically overpaying for a plaque and a window sticker/logo for your website plus a page (created based on your own submission of superlatives about you abilities as an attorney). In short, this is advertising in the guise of a competitive rating process.
Some of these companies “invite” you to nominate other lawyers for the “honor” and that’s standard practice for marketing firms. Others, however, require you to do so. That’s a scam. They are using you to do their legwork and also telling those you nominate that they have been “selected by their peers” to be recipients of the “award.”
I personally don’t want to join any club that would have someone like me as a member, so I deleted the email. I do not, however, look down on those lawyers that choose to pay for this sort of advertising. I get that it’s a cutthroat business for a lot of attorneys and anything that gets the phone ringing is not necessarily a bad thing.
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.