- tloojs
- Mar 4, 2021
- 2 min read
Today is a red letter day for John S. Koehler, P.C. This morning I filed my first ever brief in the Supreme Court of Virginia — and now some poor staff attorney (or maybe a law clerk) will have to read it. To that person I say, “Thanks for not laughing out loud.”
In truth, the issue is one of some note and I would be chagrined if it was laughed at because it involves constitutional due process — Whether the Court of Appeals erred in finding that a violation of the defendant’s right to confront a witness against him was harmless beyond a reasonable doubt. What is interesting about the case is that while the standard of review for all constitutional due process issues is the that it must be harmful beyond a reasonable doubt, the application of that standard is different for Confrontation Clause cases, or at least that is the argument I have present to the 9th Street Side of the Appellate Courts Building. In the Court of Appeals, the cases cited by the Court did not apply what I consider to be the appropriate review — did the improper evidence have any tendency to influence the jury’s verdict. Rather, those cases applied the simple “but for the improper evidence was the remaining evidence sufficient” to prove guilt beyond a reasonable doubt? Only one even remotely invoked Confrontation in a jury trial, and in that case the evidence the defendant had want to use as rebuttal against the victim was admitted in other testimony of another witness. In other words, none of the case relied on by the Court dealt with improperly admitted evidence not subject to confrontation.
Now, had the Commonwealth rested its case just before the improper evidence would have been admitted, I think it was more than likely the jury would have convicted — so under the standard used by the Court of Appeals, the judgment would have been upheld on appeal, But once the Commonwealth (against all expectation) was able to introduce hearsay statements of an alleged accomplice who had asserted his Fifth Amendment right when called as a witness, I think the quantum of evidence got a big boost of credibility, and that is the standard that ought to apply — that is, did the jury consider this evidence as the “nail in the coffin” of what was otherwise a highly circumstantial case?
Watch this space for updates!
The lone published opinion from the Court of Appeals of Virginia today is Juan Luis Lopez v. Commonwealth of Virginia. What immediately caught my eye in this case before I was through the first paragraph was the nature of two of the charges against Mr. Lopez: disarming a law enforcement officer of his impact weapon, a baton, in violation of Code § 18.2-57.02 and attempting to disarm a law enforcement officer of his stun weapon, also in violation of Code § 18.2-57.02. Now I will be forthcoming in telling you that this is the first time I have heard of this offense. Granted, it wasn’t enacted until 2001, well after my glory days of reviewing countless criminal appeals, but nonetheless given the frequency with which criminals engage in donnybrooks with the men and women in blue (or brown or green as the case may be), it seems to me that a prosecutor looking to ladder up the charges against a defendant would be able to make a good case for “attempting” to disarm an officer if the officer has any type of weapon close to hand (which they typically will). The reason why this is perhaps not the case is the subject of one of the issues addressed in today’s opinion – what evidence will prove that the defendant intended to disarm the officer in order “to impede or prevent any such person from performing his official duties.”
The facts of the case are, as they so often are, nothing new. It all started with a complaint of a “loud party” at which Mr. Lopez was in attendance. It so happens Mr. Lopez was also wanted by the police in connection with a prior assault and battery and the subsequent failure to appear. [Editorial comment: When you know that they cops are looking for you – or at least will have reason to detain you if you pop up on their radar – don’t attend loud parties.] The two officers who responded, Lopez was the first person with whom they “came into contact.” The opinion does not set the scene, but from subsequent events it is clear that this encounter occurred outside in the street where the party was at least partial being held.
Upon confirming Lopez’s identity and learning that he was wanted, one of the officers advised Lopez that he would be attending a different kind of party at the magistrate’s office and asked him to come along quietly. Lopez didn’t. After a brief tussle, Lopez ran toward a residence (his as it turned out). Before Lopez reached the house, the office deployed his “stun weapon” into Lopez’s back. Lopez entered the home, closed the door and “fell onto a sofa.”
Now this is where the opinion gets a little hinky, in my opinion, as the next sentence reads, “When [the officer] entered the house, Lopez rose from the sofa and lunged toward him, attempting to separate the officer from his stun weapon.” As one of Lopez’s arguments on appeal is that he most assuredly did not attempt to “separate the officer from his stun weapon” (at least with the requisite intent), this statement seems rather conclusory. As it turns out, that is likely because the only evidence that would support a finding that Lopez did not “separate the officer from his stun weapon” was the defendant’s own self-serving testimony that was, to be charitable, somewhat at odds with the physical evidence, the officer’s testimony, and the body cam footage.
At any rate, the struggle continued with the officer using pepper spray on Lopez to no effect and then drawing his baton and attempting to use it to subdue Lopez. “Lopez blocked the baton strike and violently lunged toward [the officer] while shoving him toward the stairs, causing the officer to fall and drop his baton.” Lopez picked up the baton and resumed his assault but was eventually subdued with the help of the other officer.
Lopez ended up with a whole slew of charges that resulted in convictions which led to this appeal. Let’s cut to the chase and discuss the legal issues that the Court of Appeals addresses:
1. One of the charges, escape, required proof that Lopez was “charged with a criminal offense.” He maintains at trial and on appeal that being subject to arrest on a capias for failure to appear does not meet the definition of being “charged with a criminal offense.” The Court ruled that FTA is a criminal contempt and the officer had placed Lopez under arrest for that offense (though he quickly broke free from that arrest) so Lopez had escaped from custody while charged with a criminal offense.
2. Lopez next argued that the evidence did not show that he had the requisite intent to disarm the officer in order to impede the officer in his duties. Lopez contended that he was “merely trying to retreat and avoid being hurt by the officers.” The Court ruled that determining intent was an issue of credibility and that the evidence as a whole showed that Lopez’s actions well exceeded mere retreat and defense.
3. Likewise, Lopez’s claim that he did commit battery of the officer was a credibility issue. There was body cam footage but given the wild maneuvering of Lopez and the officer it was hardly conclusive as to who was the aggressor at any point (well, not if there were the only evidence). The evidence as a whole, however, showed that Lopez was giving as good as he was getting (probably more giving than getting as the officers both showed considerable restraint in what could have been a more serious situation).
- tloojs
- Mar 2, 2021
- 2 min read
Yes, there is an appellate law grapevine, and it was all abuzz yesterday from a reliable rumor that the expansion of the jurisdiction (and size) of the Court of Appeals of Virginia is all but a done deal. The unofficial word is that the legislation has or will soon pass and that the Governor will sign it. This means some big changes for the appellate landscape in Virginia:
Except for appeals that are required to be heard in the Supreme Court (State Corporation Commission Appeals, Appeals of Attorney Disciplines Cases, and Appeals of Death Sentences — which will be no longer be a thing soon), all appeals will go through the Court of Appeals as appeals of right — no more petitions for criminal cases, and no need for a petition in civil cases that formerly went direct to the Supreme Court.
The Court of Appeals will have to extensively rewrite its rules to account for the new process.
The Supreme Court will likely have a period where its dockets are even smaller than the very short dockets of recent years as there will be a delay between the Court of Appeals taking over the Supreme Court’s civil docket and cases being appealed to the Supreme Court.
There will be a significant uptick in summary affirmances — in fact, my guess is that court will simply replace the one-judge review of criminal cases with an automatic release of a summary affirmance in those cases that previously were refused by per curiam order. The question is will a summary affirmance be subject to review with a right of oral argument (as petitions for appeal are now) or will it be a “one and done.”
All the preparation will happen sometime in the next 10 months if the January 1, 2022 shift to the new order remains in the legislation. I think this may be a tall order for the Court to redraft its rules and get the necessary staff in place and trained — the new Judges will have law clerks and judicial assistants of course, but I cannot imagine that they will be sufficient to handle the extra workload without a few additional staff attorneys. The Clerk’s Office will likewise need several new staff members.