Staying out of the trial court . . . once again.

Most who know me well, know that I spend as little time as possible in the trial courts — in fact virtually none.  I managed to keep that record intact on Monday.  I was asked to consult on a personal injury case that had moved from the general district court to the circuit court but was procedurally probably not ripe for an appeal.  I prepared a motion to remand the case which was to have been argued at 10AM in the Roanoke City Circuit Court.  The defendant made an offer of settlement on Sunday which the plaintiff accepted on Monday around 9:45.  The matter was concluded in the hallway outside the courtroom.

An Unpublished Opinion Worth a Short Mention

Anthony Andre’s Mackey v. Commonwealth of Virginia, an unpublished opinion of the Court of Appeals released on January 26, 2021 deserves a brief mention in this space because it is a classic example of a failure to take not of what is a final order can result in the appellate court being unable to reach the merits of the case.  In this instance, the issue is what constitutes the final order in a criminal trial — the sentencing order or a subsequent order entered addressing a motion for reconsideration that was pending at the time the sentencing order was entered.

Experienced attorneys have already guessed that the answer depends on the wording of the sentencing order, or more specifically the absence of wording in that order.  The absent words would have indicated that the order was suspended or would not become final until the motion for reconsideration had been dealt with.  In the absence of those words, the order was final on its face.

Less experienced, and a few more experienced hands, will now have jumped to the conclusion that this is Rule 1:1 problem, assuming that the circuit court waited to act on the motion for reconsideration until after the 21st day following judgment and that the appeal related to some ruling thereon which was void for want of jurisdiction. This is half right.  The judge did enter the order denying the motion for reconsideration outside the 21 days, but the appeal did not relate to that ruling, or at least if it did in any part, that was not the reason the appeal could not be addressed on the merits.

Instead, Mackey’s counsel, assuming that the void order on the reconsideration was the final order, timed his filing of the transcript on that date, not the date of the order.  Rule 5A:8.  He actually got the transcript filed early by his reckoning, but alas it was not timely when the proper final order date was more than a month prior.  But wait, isn’t there a provision for having the Court of Appeals accept untimely transcripts “for good cause shown” and aren’t such motions typically granted?  Yes, there is, and yes, they are and probably would be in this case as the transcripts were less than two weeks late and clearly everyone in the trial court thought the matter was still properly before the court at the time the reconsideration was ruled on.  The problem is, of course, that Mackey’s counsel did not file such motion.

But wait!  Isn’t Mackey still entitled to a delayed appeal where the fault lay with his counsel?  Yes, and the Court of Appeals said as much in a parting footnote.  So why not just give Mackey his appeal now?  Because that’s not the way things are done — the Courts do not reward errant counsel, no matter how reasonable that error might seem (and this, IMHO, was not that reasonable — the rules on finality in criminal cases are well established, hence the Court of Appeals’ decision not to publish this opinion).  If Mackey’s counsel knows which side of the bread the butter goes on, he has already contacted a reliable colleague to apply for the delayed appeal and sought the advice of an attorney experienced in Professional Responsibility matters.

Summary and Analysis of Published Opinion of the Court of Appeals, January 26, 2021

Shaka Markel Long v. Commonwealth of Virginia.  The lone published opinion from the Court of Appeals this week – the first in two weeks – comes from the Circuit Court of York County and involves convictions for multiple drug offenses.  The issue is one common to drug cases: when should the trial court permit hearsay evidence of a confidential informant to be received.  The testimony in question was offered at a hearing to suppress the evidence recovered following a “stop out” of a vehicle identified by the informant as being involved in drug trafficking that was known to be in a certain location.  And what, pray tell, is a “stop out”?  You may well ask, because a search of the entire federal and state case law did not reveal a single instance of the use of this term in the manner that it was defined at the hearing by the sheriff’s investigator, who explained that “in my mind, I wanted them to make consensual contact with the suspicious occupied vehicle in the parking lot.”  Despite this being the investigator’s desire, the deputy who received the dispatch conducted a nonconsensual stop, a fact which the Commonwealth readily (and quite properly) conceded.

The investigator’s information from the confidential informant was that the vehicle, which she jointly owned with her daughter, was no longer in her possession, nor was it in the possession of her daughter who was, at that time, a guest at the iron-bar hotel.  The informant had initiated her communications with the investigator some while before being concerned that her daughter was involved in drug trafficking, or more precisely was on the receiving end of that market.  While Long was not identified as a person of interest by the informant, she was able to tell the investigator the location of the vehicle because she had installed a tracking device for that purpose.  She further indicated that the vehicle had come into the possession of its current occupant because of the daughter’s involvement in the aforementioned market.  The vehicle, which the informant “wanted back,” was then parked at a motel known to be a place where that market flourished.

The principal argument made by Long’s counsel at the hearing was that there was an inadequate foundation for permitting the investigator to testify as to what he had been told by the informant, arguing, among other things, that in requesting the stop out the investigator failed to convey to the deputy who conducted the stop the basis for doing so.  Long relied on Giles v. Commonwealth, 32 Va. App. 519 (2000), for the proposition that an informant’s information must exhibit sufficient indicia of reliability to support the reasonable suspicion to conduct a stop.  The Court of Appeals, however, noted that Giles relates to the quality of the evidence, rather than its admissibility – which was the basis of the objection in the circuit court.  Moreover, the Court found that had the objection been to the reliability of the evidence, “the record before us leaves no doubt that the information [the investigator] obtained from [the informant] was, in fact, reliable.”

Long next argued that even if the investigator who requested the stop out had a reasonable basis for suspecting that there was criminal activity afoot, he failed to communicate the basis for that suspicion to the deputy who conducted the stop, and that the information should not be imputed to him under the “collective knowledge” doctrine.  Alas, the opinion does not give a significant amount of detail as to the basis for this argument, which the Court summarily dismisses as being “without merit,” noting that this is the exact circumstance under which the doctrine is intended to be applied.  The fact that the instructing investigator’s intention was for the stop to be consensual does not alter the Court’s analysis because the issue of law is not whether the investigator had a subjective belief that a nonconsensual stop would have been proper, but an objective analysis of the facts applied to the law.

So, what have we learned from Long?  Three things come immediately to mind.  First is the investigator’s use of the term “stop out,” which the Court of Appeals indicated in a parting footnote was probably not understood by the deputy to mean what the investigator had intended, will probably not be making its way into the legal lexicon.  This naturally raises the question of what the Court would have done if the instruction had been clear that the deputy should attempt a consensual encounter.  I offer the opinion that this would have made a significant difference because then the deputy would have understood that the investigator did not believe he had sufficient grounds to conduct a non-consensual stop.  Of course, had that been the case, it is likely the deputy would not have conducted the stop in the manner he did.

The second thing of note is a solid practice point for all litigants – on appeal or otherwise – and that it the wisdom of conceding a point you cannot win.  The Commonwealth saw that there was no point in trying to assert that the deputy had conducted a consensual stop as the evidence plainly showed that he had through various means asserted his authority in detaining both vehicle and suspect.  By conceding this point, the Commonwealth was able to accomplish two things in that it was not required to waste its words or the Court’s time on a fruitless argument and it likewise gained credibility with the Court for its argument that the stop, though not consensual, was nonetheless lawful.

And the third thing of note in this opinion?  Don’t cross mama – especially if she knows how to use a GPS tracker.