The Court of Appeals released just one published opinion this week. Rakim Malik Nottingham v. Commonwealth of Virginia involves two questions: First, whether the trial court erred in granting jury instruction, and second whether it erred in excluding a videotape of the victim’s interview and instead allowing the officer to testify as to victim’s demeanor during the interview. Any attorney should know that both issues involve matters of the trial court’s discretion — but an experienced attorney will know that the court’s discretion is often subject to closer scrutiny on certain issues than on others. Both the decision to give or refuse a jury instruction and to permit or exclude evidence where there is an alternative, arguably more accurate source available are two such instances where there are specific rubrics to determine whether the court exercised its discretion properly, and that is likely why the Court of Appeals chose to publish this opinion.
Nottingham arranged to meet the victim, A.K., in her hotel room where she agreed to engage in certain sexual acts for $200. Nottingham then produced a pistol, robbed A.K. and forced her to perform sexual acts, brutally assaulting her in the process. The opinion does not recount how Nottingham was identified as the assailant, but he was ultimately charged with rape, forcible sodomy, malicious wounding, and three counts of using a firearm in the commission of a felony.
At trial, sought to introduce the videotape of a police interview with A.K. the day following the rape and assault, to demonstrate the difference between A.K.’s demeanor at trial, where she was upset and crying, and her “prior inconsistent demeanor” during the interview. The court sustained the Commonwealth’s hearsay objection but allowed appellant to elicit testimony from Detective Evans concerning A.K.’s demeanor during the videotaped interview. Detective Evans testified that during the interview, A.K. appeared “calm,” did not cry, and in fact “laughed a couple of times.” In closing argument, appellant’s counsel referred to A.K.’s casual demeanor the day after the crime and contrasted it with her affect on the witness stand.
At the conclusion of the evidence, appellant objected to the Commonwealth’s proposed Jury Instruction 32. The instruction stated, “The [c]ourt instructs the jury that a conviction for rape or a conviction for forcible sodomy may be supported solely upon the testimony of the victim without further corroboration, if believed.” The court overruled the objection and granted Jury Instruction 32.
The jury convicted Nottingham and he appealed to the Court of Appeals challenging the refusal to admit the videotaped evidence and the giving of instruction 32. Although the Court of Appeals addressed the instruction issue first, I will reverse that order because, frankly, the failure to admit the videotape is, in my view, the more important issue.
Normally, where a witness is available to testify — both A.K. and the detective were witnesses for the Commonwealth — a videotape is not the best evidence of a prior statement by the witness and is hearsay. This was the basis of the Commonwealth’s objection at trial and the basis on which the court excluded the evidence.
However, Nottingham did not want to introduce the videotape in lieu of live testimony — and he certainly did not want it introduced for establishing the truth of what was said on the tape. Quite the reverse, he wanted the tape introduced to show that A.K.’s demeanor during the interview was inconsistent with her behavior at trial to impeach her trial testimony.
The Court of Appeals declines to address whether “impeachment by demeanor” is a basis for admitting hearsay evidence under Rule 2:607, instead assuming that this is the case. The Court concludes that by permitting Nottingham to cross-examine the detective on A.K.’s demeanor, the trial court acted within its discretion. The Court further noted that Nottingham had sought introduction of the entire video, which included an interview with the SANE nurse and other elements that were not relevant to the issues of A.K.s demeanor during the interview with the detective, noting that he should have redacted these irrelevant portions of the tape.
The jury instruction issue is more straightforward. A court does not abuse its discretion in granting jury instruction where the instruction is an accurate statement of the law, was not duplicative of other instructions, and addressed a relevant issue raised by the evidence. Here, instruction 32 hits all those checkmarks.
While I do not find fault with the Court’s ruling regarding the videotape’s admissibility, I do think that the issue will need to be raised again. Whenever an appellate court “assumes without deciding” an issue, it means that the issue remains to be decided. Moreover, the Court’s observation that Nottingham had not offered a redacted version of the tape suggests that this may be a factor in deciding whether to admit “evidence of demeanor” in future cases.
This is not so much a “Soap Box” as it is a reflection on the concept of “thinking like a lawyer.” This evokes the phrase heard by every law student that in Law School “You teach yourself the law, we teach you how to think like a lawyer.” In truth, “thinking like a lawyer” is really nothing more (or less) than thinking critically about any topic. It’s looking at the situation, identifying the facts you need to know, the terminology what you need to define, and the strengths and weaknesses of one position as well as the strengths and weaknesses of its opposite. It also requires an understanding of human nature, of the need for order out of chaos, the desire for a story.
The following example deals with an area about as foreign to the law as rutabaga farming is to rocket science — math (or maths, as the British would say). It shows, however, how a subject that is foreign to the law can be addressed with critical legal thought — albeit in a fashion that would probably make a mathematician’s head explode. So view this not only as an example of how a simple question — in this case, “what is meant by a percentage?” — can be not so simple to answer if you “think like a lawyer” about it, but also an example of how “a little knowledge is a dangerous thing,” because none of what follows is based in more than a rudimentary understanding of the deeper mathematical concepts (and with full awareness of the logical fallacies that result for ignoring these concepts). And for any mathematician who happens to come across this post and desires to print it out, mark it up in red ink, scan it and post it as a comment, please understand that this is exactly how you (and doctors and engineers and other “really smart people”) sound to lawyers when you try to explain the law to us. In other words, I know that the following discussion is not mathematically accurate in every respect, and it is not intended to be. It’s to show why the correct legal answer to any question is “it depends.”
What is a percentage? For most lay people, it’s the representation by a number of the fraction out of the whole that something represents. Half a pie is 50% of a pie. But is that really how percentages work? If I cut the 50% of the pie in two equal portions, does each portion represent 50% of the original half of the pie or 25% of the whole pie that I never had? What if the baker used a frame to bake a pie in only half the pie pan (such a utensil actually exists)? Is the result 50% of a pie or 100% of a pie? If I promise to pay your 50% of my earnings, is that 50% of all I earn, or 50% of all I net? So before we answer “what is a percentage,” we need to understand not just what percentages are and if percentages change by context.
For comparisons, it is possible to have an unlimited percentage and even a negative percentage — but changes in relative positions do not always result in changes of percentages. Example, if I have one dollar and you have two, your net worth is 200% of mine, and if I then become indebted to you for $2, your net worth goes up 200% ($2 of assets plus $2 receivables), while mine drops by -200% (from $1 of assets to -$1 of net assets less payables). If I pay you the dollar I have, the net change in both positions is 0% — I am still worth -$1 and you are still worth $4. If I acquire another dollar, my net worth is now $0, but the change in my net worth is -100%, not 100%, while your net worth remains the same. If I again give you the dollar I acquired, the net change in positions again remains unchanged.
But as a unit of measurement, you can never have less than 0% of something or more than 100% of something. In the above example, there are four physical dollars. At the start you have 66.6% of the dollars and I have 33.3%. When I pay you the $1, you have 100% and I have 0%. When I acquire the fourth dollar, I now have 25% of the dollars and you have 75%. Then I pay you again and we revert to 0% and 100%. If you then acquire a fifth dollar from someone else, you have 125% more dollars than before, but the fifth dollar represents only 20% of your net worth, and you still have only 100% of all the dollars between the two of us. The increase in quantity changes the relative percentage that each unit has as part of the whole but does not result in a change in the measurement of the division of quantity. If you then (in violation of federal law — so do not try this at home) use one of the dollars to light a cigar, you have reduced your quantity of dollars by 25%and your net worth by 20%, but you still have 100% of the dollars remaining.
So what is a percentage? It depends.
I send a lot of emails. I don’t mean that I personally send a lot to friends and family — my output in that region is pretty slim as we stay in touch via phone and zoom and social media. I also don’t mean that I send a lot of emails in my professional capacity either; given that my practice is very limited and does not require a great deal of back and forth, I probably send fewer emails than the average attorney. Nonetheless, I send a lot of emails, perhaps as many as 50,000 a month. That’s because I have an unofficial role within the legal community promoting events like CLEs and law-related activities. Just today I sent about 600 emails to the local bar in the Roanoke Valley seeking volunteers for a “Wills for Veterans” event. Let me assure you that I am not a “SPAMMER” — these emails go to people who know they are coming and who know how to politely tell me (or actually, tell the list managing website I use) to take a hike and I always honor those requests (and not just because its the law),
So what’s the point of bringing up this topic? It’s because when you send a lot of emails you get a lot of automated replies and lately I’ve notice that a larger number than usual of these are informing that the attorney in question is no longer at that email address. Among the 600 or so emails I sent out just now, at least a dozen bounced back as “sorry, not here anymore.” Some had forwarding information advising that the attorney had moved to a different position, while most did not. I am not including among these the “dead” email address that are reported as not found, so these are attorneys whose former firms/offices are still going concerns, just without them being there.
Now, I am going to go out on a limb here and speculate that this may have something to do with the Pandemic. My theory is that the musical chairs among law firms and other offices (one firm I noted lost three attorneys, two to a different firm and one to public service) resulted from people either not adapting to the restrictions placed by the higher ups — either not allowing remote working or requiring it — or by simply having time to contemplate their position in life due to the enforced isolation. My own decision to retire from civil service was not entirely to do with the Pandemic, but it certainly was a factor in deciding to stay home for an extended period before venturing back tentatively into the working world.