Of Carjackings and Appellate Unicorns

Continuing my review of cases handed down before this blog launched, I came across Fletcher v. Commonwealth, a published decision from November of last year, which is worthy of note because it contains that rarest of animals in appellate jurisprudence – an unpreserved error that nonetheless is subject to review on appeal to protect the integrity of the courts and to enable the appellate court to attain the ends of justice.  When the appellate courts decline to review an unpreserved issue under the ends of justice exception, the most cited example of when this unicorn will appear is where the trial court has entered an unlawful sentence, and that is precisely what happened in Fletcher.

The facts of the case read like the nightmare scenario of any person driving in a rural area late at night, particularly a young woman on her own.  The victim stopped at a gas station to put air in her tires.  Fletcher pulled into the station and offered to assist her.  When she declined, Fletcher asked if she wanted to “hang out” and “smoke some weed,” but she again declined.  Fletcher persisted in his attempts to engage the victim in conversation and when she left the gas station he followed directly behind in his vehicle.

The victim grew concerned and texted a friend and then called 911.  The 911 dispatcher remained on the line, and the subsequent encounter between the victim and Fletcher was recorded.  Fletcher sped around the victim’s car and forced her to stop.  When she attempted to back away, her car ran off the road, and Fletcher then backed his car in front of hers, blocking her escape.

Fletcher was wearing gloves and carrying a tire iron when he exited his car.  He demanded that the victim exit her vehicle and follow him.  When she refused, he struck the window several times with the tire iron while yelling threats and obscenities.  Another vehicle approached the scene, and the victim was able to signal that she needed aid.  Fletcher drove away, returning a short while later, but left again when he saw the victim was with the driver and passenger of the other vehicle.  Sheriff’s deputies arrived on the scene a short while later.

Either the victim or one of her rescuers had the presence of mind to take down Fletcher’s license tag number, allowing authorities to identify Fletcher as the owner.  Fletcher’s vehicle was seen by another deputy driving at high speed away from the area where the victim had been run off the road.  Fletcher was apprehended sometime later.

Fletcher was convicted of carjacking, in violation of Code § 18.2-58.1; attempted malicious wounding, in violation of Code §§ 18.2-26 and 18.2-51; abduction, in violation of Code § 18.2-47; felony destruction of property, in violation of Code § 18.2-137; and assault, in violation of Code § 18.2-57.  On appeal he contended that the evidence failed to show that he seized or seized control of the victim’s car, an element of carjacking, and further that the Commonwealth failed to prove that he had the requisite intent to maliciously wound the victim.

On the first issue, the Court of Appeals held that seizure of control of a vehicle requires only that the defendant must restrain the driver from moving the vehicle.  By blocking the victim’s vehicle from returning to the roadway, the Court held that the circuit court could have found that Fletcher had “seized control” of the victim’s vehicle, thus the verdict on this issue was not plainly wrong or without support in the evidence.

With respect to attempted malicious wounding, the Court of Appeals acknowledge that there was conflicting testimony as to the force Fletcher used when striking the window with the tire iron.  Fletcher maintained that as the window did not shatter, there was no evidence that he struck it with sufficient force for the trial court to infer that he intended it to shatter and to cause harm to the victim.  The Court, however, noted that there was considerable other evidence to suggest that Fletcher intended to harm the victim, including his violent effort to force her to stop her vehicle, his threatening the victim in a voice so loud that it was clearly audible on the 911 recording through the close door of the car, and the victim’s testimony that she believed the window would break.  Considering this evidence, the Court held that the trial court was within its province as trier of fact to reject Fletcher’s self-serving testimony.

So now we reach the unicorn.  Fletcher was initially charged with abduction with intent to defile, a class 2 felony.  The trial court convicted him of the lesser included offense of simple abduction, a class 5 felony.  The Court of Appeals does not explain how it happened, but at sentencing, the trial court imposed sentence based on the original charge, not the lesser included offense.  As the issue reached the appellate court, it is clear that no one – the judge, the probation officer who prepared the pre-sentence report, the Commonwealth’s Attorney, or Fletcher’s trial counsel – noticed the error.  When the error was noted sometime afterwards, however, it was so obvious that the Commonwealth did not bother to contest the issue.  The Court reversed the sentenced for abduction and remanded for a new sentencing proceeding.

#courtofappealofvirginia #rule5a18 #sentencing

Carbon Copy Indictments — An Issue that Needs to be Raised (Again)

Ok The main part of this blog is devoted to decisions of the Court of Appeals of Virginia.  Occasionally, however, I will stray in other issues and that is what the Soapbox is for.  Today, I climb up on that precarious perch to address an issue in an unpublished order of the Supreme Court of Virginia in the habeas corpus appeal Robert John Dodd v. Harold Clarke, Director, Virginia Department of Corrections 2/4/2021 (unpublished order).  Dodd is worthy of a mention even though it is an unpublished order because it raises an interesting issue that, IMHO, deserves greater attention – can a defendant be convicted of multiple felonies where the indictments are identical in every respect?  This is a fairly common practice in a rather unpleasant area of the law, that involving the abuse of children through sexual assault, taking of indecent liberties and the creation of pornographic images.  Because these events often take place over extended periods of time, the indictments tend to give a range of dates within which the alleged offenses occurred, rather than specific dates.  Often, the victim is not able to be more specific than by reference to events (“after I started school,” “before we went to see grandma,” etc.).  Without specificity of dates, defendants contend that they are unable to form a complete defense by, for example, establishing an alibi showing that on a specific date they had no contact with the victim.

Generally, courts have held that even extremely broad time periods do not per se violate the constitutional requirement that the defendant be given notice with specificity of the alleged crimes.  However, in 2005, a divided panel of the Sixth Circuit Court of Appeals determined that “carbon copy” indictments insufficiently apprise a defendant of the charges against him, thus putting him at risk of multiple convictions for the same offense.  Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005).  Valentine has been cited in over 200 cases since its release, but it has not found favor with any other circuits or state courts of appeal.  Dodd is one such case.

Dodd was convicted of three counts of forcible sodomy of a child under the age of thirteen, three counts of taking indecent liberties with a minor while in a custodial relationship, and three counts of aggravated sexual battery of a child under the age of thirteen. The indictments were facially identical for each count of the specific offenses. The jury instructions, like the indictments, failed to differentiate between Dodd’s three charges for each offense by date or underlying conduct.

The unpublished order does not provide details as to the length of time specified in the indictments or what the trial evidence was that proved there were multiple offenses.  The omission of these facts is understandable, as this is not a direct appeal of the convictions and 99-year sentence imposed.  In habeas proceedings, the reviewing court is not actually interested in the evidence, but only whether the defendant’s constitutional or statutory rights were violated because of some aspect of his trial, usually the failure of his counsel to provide an effective (or more accurately, a minimally effective) defense.  Here, the issue was whether Dodd’s counsel was ineffective for not challenging the “carbon copy” indictments.  Because “no controlling caselaw exist[s] holding that multiple identical indictments violate a defendant’s constitutional rights,” the Court concludes that Dodd’s counsel was not ineffective for failing to raise the issue.

This does seem to be a “Catch-22” – until there is controlling caselaw on an issue, a counsel cannot be held to be ineffective for not raising the issue, but if counsel does not raise the issue, how will controlling case law be developed?  In reality, it often takes years for “controlling caselaw” to develop.  Issues that we think of today as written in stone – Miranda warnings, the impropriety of racially-motivated striking of blacks from jury pools – had to be raised repeatedly until a crack in the dam of judicial intransigence appeared (which is usually followed by dam-bursting a flood).  If the use of “carbon copy” indictments is ultimately found to be unconstitutional, it will not be because a habeas review finds it to be so.  It will be because the issue is raised often enough at trial and on appeal that there is more precedent than just Valentine.

#doublejeopardy #habeascorpus #supremecourtofvirginia

Yes, Virginia, There is Private Prosecution . . . But It’s Rarely a Good Idea

Private prosecutions are not a unique feature of Virginia law and the practice is even common in some states.  In Virginia, however, the practice is usually confined to two instances.  The first is where an expert in a field that is beyond the common knowledge of the typical day-to-day prosecutor is hired by a victim or other interested party.  One such case is Riner v. Commonwealth, 268 Va. 296 (2004), in which the family of the victim hired an expert in arson to assist the Commonwealth in proving that Riner set a fire in his home to destroy the evidence that he had murdered his wife. The more typical instance is where a victim or other interested party wishes to pursue a which the Commonwealth generally would not, usually in conjunction with a civil suit filed by the employer of the private prosecutor.  In either case, however, the prosecution must still be subject to the direction of the elected Commonwealth’s Attorney and is subject to the same ethical standards as a public prosecutor, which is what brought the case of Mary Price v. Commonwealth of Virginia, 11/4/2020, to the Court of Appeals of Virginia.

Mary Price and Veronica Drew were involved in some form of altercation, the details of which are not recounted in the opinion, resulting in a charge of simple assault against price.  [Editor’s comment: Having spent the first 27 years of my legal career working in the same office suite as a general district court judge, I can perhaps be forgiven for assuming that the altercation was in the nature of a “cat fight,” though that experience would also suggest that there should have been a cross-warrant against Drew.]  Price was convicted in the general district court and noted an appeal to the circuit court.  The Commonwealth “elected to permit the matter to proceed as a citizen complaint,” and Drew procured the services of an attorney who, coincidentally, was also representing Drew in her civil case against Price.

Price objected that the attorney had an inherent conflict of interest.  The attorney in response “offered to withdraw” provided that the Commonwealth’s Attorney would take over the prosecution.  The circuit court, however, ruled that there was no conflict of interest.  Price was convicted again, sentenced to 12 months incarceration, with 10 days to serve on condition of her having no contact with Drew and completing anger management.

The Court of Appeals made short work of this case, finding that the attorney had an inherent conflict of interest that prevented him from prosecuting Price.  Although this would have been sufficient to reverse the conviction, it was equally apparent that the elected Commonwealth’s Attorney was exercising no supervision over the private prosecutor.  Although the conviction is reversed, the case is not yet ended as it will be remanded to the circuit court “for further proceedings, if the Commonwealth be so advised.”  As of the time that this summary was prepared (February 11, 2021), the Commonwealth has not nolle prossed and the case was generally continued on February 1, 2021, suggesting that the Commonwealth is proceeding with the case and Price is presently on terms to be of good behavior and, perhaps, complete the anger management course before the charge will be dismissed.

Meanwhile, an examination of the civil court docket shows that there were indeed cross-warrants between Price and Drew filed in the general district court now on appeal to the circuit court.  The civil docket also shows that Price and Simone Gardner also have cross-warrants on appeal.  [Editor’s note: I’m liking my odds on “cat fight.”]