- tloojs
- May 5, 2021
- 7 min read
I missed getting analysis and discussion of last week’s opinions as I was busy doing other law stuff (an essay about which will be posted in this space anon), so I am playing catch-up this week. In addition to the two opinions for April 27, we have one more from today, and I shall take them in chronological order seriatim (a favorite word of the Supreme Court of Virginia of late which simply means in the order they come). In doing so, I promise that I have saved the best for last, so be sure to read to the end.
Atlantic Orthopaedic Specialists v. City of Portsmouth, is a workers’ compensation case, and if you were (as I am) a regular consumer of the opinions of the Court of Appeals, you would be forgiven if you experienced “Déjà vu all over again” as Yogi Berra liked to put it. That’s because in the particulars other than the parties this case is virtually identical to Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation, decided at the end of March. Although the composition of the panels was different, Judge Beales was on each and authored the opinion. There are a few differences in the facts, of course, and the provider in this case made a slightly different argument, but the result is the same. If you are providing any kind of medical service as part of a workers’ compensation award, you need to make sure your accounting department is keeping up with the bills and seeing that they are timely paid. In both cases, the issue was that the self-insured employer was not paying the bills in full, and the provider was tardy in pursuing full payment. Tardy is a politic word – in fact, I would go so far as to say whoever was responsible for the accounts at each business was asleep at the wheel as the claims were not filed until well after the statute of limitations under Code § 65.2-605.1(F) had passed. [As an aside, I am not sure that Code § 65.2-605.1(F) is a “statute of limitations” so much as a “statute of repose” – this is usually a distinction without a difference as in either case it means that if you act after the limitations period, you are usually SOL].
Jessica Danielle Barrow v. Commonwealth of Virginia is the first case I’ve seen from the Court of Appeals where the issue involves an alleged abuse of the trail court’s discretion in revoking a suspended sentence for failure to complete a court-ordered diversion program was based in part of the unavailability of the program due to it’s being shut-down for a time as a result of COVID. Barrow was convicted a possessory drug offense and offered diversion. This was in June of 2019 when COVID-19 was not yet known t exist.
Barrow made what can at best be described as a half-hearted attempt to participate in the program but failed to comply with the requirements placed upon her by the VASAP case manager or pay any of the costs associated with the program. In a show cause hearing in January 2020, Barrow gave no indication that she was having health issues, nor did she contest the allegation that she had failed to participate in the program. The court admonished her that she would have to complete the program within the original 1-year period. And then COVID19 happened.
When Barrow returned to Court in June, her attorney asked for a 3-month extension, claiming that Barrow had suffered from health issues that had prevented her from enrolling in the program before VASAP was essentially shutdown because of the Governor’s emergency measures to limit the spread of COVID and the Supreme Court’s concurrent declaration of a judicial emergency. The circuit court denied the request and Barrow appealed.
The Court of Appeals held that the circuit court did not abuse its discretion in not granting the extension. The evidence showed that Barrow had made only a minimal effort to participate in the diversion program prior to the show cause hearing and had taking no additional steps to arrange to do so afterwards. Although guidance from the Supreme Court with respect to the judicial emergency included advice on liberally granting continuance, the Court of Appeals concluded that the record showed the trial court was aware of the impact of the COVID pandemic on Barrow’s ability to participate in the diversion program, but that given the other evidence that she had not made any effort to fulfill the requirements of the program that an extension of time was not likely to result in her compliance with the court’s order.
While I am not surprised with the Court of Appeals’ decision in this case – abuse of discretion is an extremely high standard (arguably the highest) to overcome on appeal. I am, however, a little chagrined that the circuit court was not more lenient. I really don’t suppose that Barrow would have suddenly become energetic and completed the course, but there is at least the possibility that she could give it the old college try and show the court that she wanted to continue. That’s why abuse of discretion is difficult to prove – think differently than the judge does not mean the judge is wrong.
I promised to save the best for last and here it is: A REVERSAL IN A CRIMINAL CASE WITH A DISSENT WHERE THE STANDARD OF REVIEW IS ABUSE OF DISCRETION. You can tell by the all caps (and the commentary on the prior case) that this just doesn’t happen that much in the Court of Appeals (or any appellate court) and it is almost surely a sign that a request for an en banc hearing and/or an appeal by the Commonwealth will follow. For appellate court junkies, this is the pure, uncut drug of choice. The majority opinion, Judge Huff writing for himself and Judge Russell, in Stephen James Kilpatrick v. Commonwealth of Virginia starts this way, “Among the tools available to parties in a criminal trial is the use of expert testimony to assist the jury’s understanding of the evidence and its resolution of facts at issue. To be sure, that right comes with certain limitations, many of which serve to guarantee that an expert’s testimony does not express opinions on issues entrusted exclusively to the jury for its own consideration, such as the defendant’s mental state at the time of the alleged offense and, ultimately, whether the defendant is guilty. But so long as a party’s experts do not violate these limiting principles, they have substantial latitude in terms of the relevant information they may present.” I can already feel that appellate opinion high kicking in.
Kilpatrick was caught in a sting operation in which a sheriff’s deputy posed as a female looking for a “casual encounter” on Craigslist.org. [While I had heard of Craigslist, I must confess that I did not know it was online as an “.org” domain; so, TIL this, which I recently learned means “today I learned]. The deputy used the name Jenny and told Kilpatrick that she was 13 years old, although the deputy also indicated that “Jenny” could drive, which is not legal for a person under the age of 15 ½ in Virginia. The correspondence was sexually explicit but did not involve any specific request by Kilpatrick that the two meet.
The deputy requested that Kilpatrick meet “Jenny” at a specific location. Kilpatrick went to the rendezvous location where he was confronted by law enforcement officers and agreed to e taken in for questioning. Kirkpatrick admitted that he had corresponded with “Jenny” and that the correspondence had been of a sexual nature. Kilpatrick further maintained, however, that she “was able to communicate” like someone much older than a thirteen-year-old and that “there’s no way [someone of Jenny’s purported age] speaks” in the way she did to him.
Kilpatrick was ultimately charged with multiple counts of soliciting a minor by computer. At trial, he sought to introduce an entrapment defense and to that end wished to have an expert testify as a forensic psychologist, but t assured the trial court that the expert would not offer any opinion on appellant’s mental state at the time he was alleged to have committed the offenses. The trial court sustained the Commonwealth’s objection that the expert’s testimony regarding Kilpatrick lack of predisposition to solicit a minor and his subjective belief that “Jenny” was older than 15 (the maximum age of the victim to which the offense of solicitation by computer applies) would invade the province of the jury.
Now you are probably wondering how the majority gets around the “reasonable minds can differ” part of abuse of discretion analysis, and the answer is that it doesn’t. Instead, the majority notes that before it can decide whether the trial court abused its discretion by excluding the evidence, it must first answer the legal question of whether the evidence was admissible – and that is an issue reviewed de novo. This may seem like a pointless exercise, as a judge can never abuse her discretion by refusing to admit inadmissible evidence, but in truth there is a good reason to take this approach. If Kilpatrick is correct that the expert’s testimony could be fashioned to avoid the ultimate issue of fact, then the Commonwealth’s object that it would necessarily do so was not well taken, and the sustaining of an objection on improper grounds is an abuse of discretion.
Since I have already told you that the majority has reversed the conviction, it is not difficulty to guess that it found the although the expert’s testimony “certainly comes close to the realm of opinion on ultimate issues,” it would not have invaded the province of the jury – or at least the court should have permitted the testimony to go forward and then entertained specific objections from the Commonwealth if the line were about to crossed.
The majority makes clear that such testimony is not likely to be admissible in cases where the offense involves an actual sexual assault or where the victim’s true age was known to the defendant. Here, however, the evidence was sufficiently in doubt as what Kilpatrick would have believe to be “Jenny’s” age that his psychological predisposition to solicit a minor was a relevant factor in his entrapment defense.
The majority goes on to reject the Commonwealth’s assertion that the exclusion of the evidence was harmless, and this is where Judge Malveaux parts company with her fellow panel members. Adopting the Occam’s Razor approach of assuming that the trial court erred, Judge Malveaux would have found that the presumed error was subject to non-constitutional error analysis and that there was sufficient evidence to rebut the assertion that Kilpatrick was not predisposed to soliciting a minor.
I am going to take issue with the dissent on the assertion that this case can be evaluated under the lesser standard of non-constitutional harmless error. While evidentiary issues typically are considered to be procedural, and thus not of constitutional dimension, here the alleged error prevented Kilpatrick from presenting evidence in his favor, a violation of the Sixth Amendment’s compulsory process clause, which has been expanded beyond the simple right to compel the attendance of witnesses but to also include the right to have that evidence heard.
Today’s only published opinion from the Court of Appeals, Jason Laufetette Brooks v. Commonwealth of Virginia, comes to the Court from Loudoun County, a once bucolic rural locale which has seen explosive growth as the denizens of the crowded DC suburbs have sought open spaces and (comparatively) affordable housing. Along with that suburban growth, alas, comes the concomitant increase in suburban crimes.
While I mostly view automobiles as basic transportation, I am aware that others view them as extensions of their personalities and both dealer packages and after-market upgrades to tailor a personalize a vehicle can run into some serious money. For example, while I am content to putter about in my basic economy sedan on mid-priced tires from the local Firestone, others prefer to cruise around on rims and tires that cost more than my first car.
During the summer of 2016, Loudoun County suffered a spate of unusual larcenies – high-end late-model SUVs were being relieved of their rims and tires. The crimes all occurred in single-family housing subdivisions. The owners would awake in the morning to find their vehicles sitting on cinderblocks. In a few instances, the owners had wisely purchase locking lug nuts, and instead found only damage caused by the thief’s attempts to break the locks and occasionally other damage to the vehicle and property missing from inside.
In September, an officer in faraway New Jersey pulled Brooks over in a white Ford Explorer. We are not sure why, as the opinion does not say and the legality of the stop is not at issue, but the officer apparently had enough to obtain a search warrant, finding a GPS unit, cinder blocks, a car jack, and a socket wrench with sockets of varying sizes. Additionally, there was an access card for a self-storage unit and on Brooks’ cell phone contained a link to an online article titled “Tire Bandit Strikes Again” regarding the tire and rim thefts in Loudoun County.
A subsequent search of the self-storage unit revealed found lug nuts, lug nut keys, tires, rims, and personal property stolen from one of the vehicles. Also found in the unit and at Brooks apartment in Maryland were business cards for “Deals on Wheels” a tire and rim resale business started by Brooks in 2015.
Brooks ended up being indicted for grand larceny, grand larceny with intent to sell, unlawfully entering a motor vehicle, and damaging a property belonging to another; a total of 22 charges. Brooks, or more likely his counsel, figured that he might stand a better chance with separate trials for each incident, whereas the Commonwealth clearly favored a single trial.
To try charges arising from separate incidents in a single trial, the Commonwealth must show that the incidents are part of a common scheme or plan or are otherwise so idiosyncratic that they must have been committed by the same person. The circuit court found that the various thefts were sufficiently similar to permit the Commonwealth to try all the charges together, and today the Court of Appeals agrees.
The Court’s opinion really does not cover any new ground on what constitutes a common scheme or plan – schemes and plans are not precisely the same thing, and if you want a quick lesson or refresher on the difference and why it usually doesn’t matter, Brooks provides a good summary. What is perhaps new in this case is another element of the test to allow combined trials – the Commonwealth must have a good reason not to sever the trials because “justice so requires.”
The requirement of justice is a balancing test between judicial economy and the danger of unfair prejudice. Typically, the unfair prejudice arises from the tendency of a jury to believe that if the defendant committed one offense, he likely committed them all. Thus, evidence from the victim or a witness of one offense, normally not admissible in a separate trial of a different offense, becomes admissible in the combined trial. In this case, however, the Court found that the evidence of the several offences “had multiple ‘stark similarities’ that, assuming a proper foundation was laid, would have been admissible in the other trials under Rule 2:404” “to show, inter alia, motive, identity, knowledge, and criminal intent.”
What is missing from this opinion – or rather what is missing from this fact pattern in so many similar cases – is whether Brooks was offered a chance to strike a deal for leniency. Specifically, I’d like to know if the Commonwealth considered offering Brooks a deal if he would drop a dime on his customers who received stolen property. Why? Because the market for high-end SUV rims and tires is obviously people who own high-end SUVs. It may come as a shock – akin to Capt. Renault’s discovery of gambling at Rick’s Café American – that people who can afford high end SUVs (or have the credit to make it appear so) do not always want to pay retail for those fancy upgrades and are willing to suspend disbelief that folks like Brooks could offer such great deals on wheels legitimately. So long is that market thrives, there will be someone else to supply the goods even as Mr. Brooks serves his time.
This week, the Court of Appeals issued two published opinions, one which covered old ground about the liability of a member of a mob for the felonious act of another, and one in which the Court waded only about ankle-deep into one of the most controversial quagmires of the day – requiring bail for pre-trial release.
Let’s start with the less controversial of the two opinions, shall we? Anthony Brian Barnett v. Commonwealth of Virginia involves a jury trial in which Barnett was convicted of wounding by mob, in violation of Code § 18.2-41, and assault and battery, in violation of Code § 18.2-57. Barnett, who was originally charged with malicious wounding, was prepared to take his lumps on the lesser offense of assault and battery, a misdemeanor, but took exception to the felony conviction for wounding by mob.
Now the charge of wounding by mob probably conjures up a scene from Young Frankenstein with Inspector Kemp intoning, “A riot is an ugly thing und once you get one shtarted there is little shance of shtopping it short of bloodshed.” The facts here are somewhat less dramatic than the possibility of Peter Boyle running amuck in a Transylvanian village.
Barnett was pulling out of a restaurant parking lot when his car was nearly struck by a pick-up truck. Note that the two vehicles nearly collided. Rather than counting himself lucky to have avoided an accident, Barnett chose to shout a few words and make a gesture or two expressing his displeasure at the other driver’s motor vehicle operating skills as he drove off. So far, Barnett is guilty of, at most, being human.
What followed, however, was that Barnett apparently stewed over the incident and shortly thereafter returned to the restaurant to confront the other driver, gesturing for him to step outside. Words were exchanged, with the other driver making the reasonable point that neither they nor their property had been damaged, and eventually returning to the restaurant with a less than courteous parting epithet. Barnett is now guilty of being a bit over-sensitive. And the matter should have ended there.
But, obviously, it didn’t. Barnett returned home where he changed shoes because he was concerned that the ones he had been wearing were too slick and he wanted a better gripping sole, as he intended to return the restaurant a square off with the other driver – we know this because he called his cousin to meet him at the restaurant as “back-up.”
You know the old saying, “two’s company, three’s a crowd”? Well, in the law it’s “two’s a conspiracy, three’s a mob.” Unfortunately for Barnett, the first cousin called another cousin. Worse for Barnett, the other cousin decided to bring his gun. And worst of all for all three men, the driver of the other vehicle was also armed.
The scene in the restaurant parking lot is fairly easy to imagine. After calling the other driver (who as apparently unwilling to ignore the challenge) out once more, Barnett threw the first punch and then a general 3-one-one melee ensued. The driver was down and being pummeled when he told the assailants that he would being shooting if they did not back off and when they persisted, he made good on his threat. Barnett and one cousin were both shot, but when the driver attempted to retreat to the restaurant, the other cousin shot him.
Barnett appealed his conviction for wounding by mob. He contended that at the time the victim was shot, the mob no longer existed because he and his cousin were now intent on obtaining treatment for their wounds and, thus, no longer had the intent to harm the victim. The Court of Appeals noted that the existence of the mob and Barnett’s intent to participate in its acts were issues of fact to be decided by the jury, which had sufficient evidence to conclude the rapid sequence of events were part of the continuing act of the mob when the victim was shot.
Now to the main event. Commonwealth of Virginia v. Malachi Morgan Thomas is, as the order of the parties’ names suggests, a “Commonwealth’s Appeal,” meaning that the Commonwealth lost on some point in the trial court and is appealing that ruling. The ruling in this case, was the admission of Thomas to bail prior to trial on charges of rape and forcible sodomy. The victims were two teenage girls Thomas had connected with over the Internet. I will spare you the graphic details of the encounters, which were violent.
Thomas was arrested and initially denied bail. Following his preliminary hearing and indictment, Thomas applied to the circuit court for bail. At the hearing, the Commonwealth proffered that Thomas was on probation in Norfolk and had charges pending, some of which involved the same victims, in another jurisdiction.
The Commonwealth also presented evidence that Thomas had been “extremely difficult to locate.” A Portsmouth police report indicated that Thomas’s mother reported him as a runaway in December 2019. Additionally, upon searching Thomas’s phone, police found that Thomas had searched the Internet for “ten hideouts for fugitives” and “If I wanted to leave the U.S., what country would I flee to?”
Thomas provided evidence that he was currently enrolled and in good standing as a student at Old Dominion University, would reside in a stable housing situation with his mother, and that he would consent to wearing a GPS tracking device.
The circuit court acknowledged that it was more “concerned about the danger to the community,” than Thomas being at risk for flight, but it nonetheless set bail at $25,000 with surety and set certain other conditions.
Now here is a fact about bail in the Commonwealth that most people unfamiliar with the criminal process may be surprised to learn – especially given that much sturm und drang in the media lately has decried the unfairness of requiring defendants to post bond, in cash or by surety, to remain free while awaiting trial on charges of which they are presumed to be innocent – in almost all felony cases the presumption is in favor of pre-trial release with the burden being on the Commonwealth to prove that the defendant should remain in the pokey. In almost all cases. The exceptions are where the defendant has committed “[a]n act of violence as defined in § 19.2-297.1” or “[a]n offense for which the maximum sentence is life imprisonment.” As you might guess, both rape and forcible sodomy fall into both categories. Additionally, the presumption against release applies in cases where “[t]he nature and seriousness of the [crime presents a] danger to any person or the community that would be posed by the [defendant’s] release.”
When the presumption does not apply, the burden falls on the defendant to show why he should be granted release – and while there a number of avenues that he can pursue toward that end (including the ones used by Thomas), it is generally agreed that he must convince the court that he does not present a danger to the community if left to roam free (or even tethered to a GPS monitor). More to the point, case law on this issue requires the trial court to make express findings of a fact that if admitted to bail, the defendant will not pose a danger to the community. It is not sufficient to assume that because the court stated its concerns in this respect but then admitted Harris to bail nonetheless, it must have found that he was not a danger if held to the conditions of his bail.
It will come as no surprise to those familiar with the usual practice of the Court of Appeals that because this is a published opinion it resulted in a win for the Commonwealth. Bond decisions, regardless of which party appeals, rarely get more than a cursory review because the standard of review is almost always discretion of the court, something the appellate courts are loath to reverse on. Here, however, the lack of the express finding of fact required provides the Court with a sound basis to reverse and remand for “enforcement of its judgment. This simply means that the order granting bail will be vacated. Thomas is free to reapply for bail and attempt to show that he is not a danger to the community and have the court make an express ruling on that issue.