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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

2 Criminal Decisions, 1 Worker's Compensation & 1 Domestic Case -- What happened to the new regime?

Four new decisions from the Court of Appeals today, and the first one starts off with a bang, or rather a bang-bang-bang. Patrick Daytione Taylor v. Commonwealth of Virginia involves and appeal from a conviction under Code § 18.2-287.4, which prohibits the carrying of a “semi-automatic center-fire . . . pistol . . . in the City of Richmond." Now this is an a very specific definition for a statute, and to be honest my familiarity with firearms does not extend to what a “semi-automatic center-fire . . . pistol" is. Now, one would think that Google would be the perfect tool for discovering the answer to this question, and this is the answer it gave, "As the name suggests, a centerfire round contains the primer in the center of the cartridge. Therefore, the power ignites when the firing pin of the firearm strikes the center of the cartridge."

So, if understand correctly, "center-fire" refers to the type of cartridge the weapon is designed to expel. The other type of cartridge is called a "rim-firm" and is "inherently less reliable than center-fire ammunition." However, rim-fire ammo is also 1) cheaper and 2) preferred for target practice and "varmint" shooting, while center-fire is preferred for bigger game, self-defense and, it would seem, the criminal element in Richmond and other urban areas mentioned in Code § 18.2-287.4.

Taylor was open-carrying a Taurus PT111 which normally hold 12 rounds, but with an extended magazine, which Taylor had, it holds 24, and that is what brought him to police attention. The officer said that he recognized the weapon and was aware that it fell within the ambit of the statute and, therefore stopped Taylor (who, when he saw the officer, began to move quickly away) to inquire if he had a concealed carry permit.

Wait, What? Taylor was opening carrying, so why would the officer ask if Taylor had a concealed carry permit?

While Virginia is an "open carry" state, a weapon with an extended magazine requires a concealed carry permit to open carry in the City of Richmond (as well as quite a few other urban areas as already mentioned). Look, don't try to make sense of needing a concealed carry permit to open carry, but only in certain cities and counties . . . just accept that this what the law requires for a weapon like this, which looks like it would be difficult to conceal anyway.

Anyway, Taylor was given a summons, duly appeared, and was convicted after his motion to suppress based on the illegality of the stop. On appeal he challenged the stop again, but the Court of Appeals, Judge Raphael joined by Judge White and Sr. Judge Petty, chose to decide the case on a much narrower ground -- the absence of proof that a Taurus PT111 is a center-fire pistol.

At trial, the Commonwealth did not introduce the weapon into evidence and present no testimony or forensic analysis that showed the weapon was designed to expel center-fire ammunition. The Commonwealth argued, and the circuit court agreed, that it could be inferred that the weapon was of that style. To which the Court of Appeals replies, and I am paraphrasing here, but only just, "Really? How would one infer that?" Simply put, even if the trial judge was an expert in firearms and could have taken judicial notice of the fact that the Taurus PT111 is a center-fire pistol (and it is), the court did not do so here. So for the court to infer an necessary element of the offense where no testimony remotely would give rise to that inference leaves the evidence lacking as to that element. The conviction is reversed and the summons dismissed.

Today's other criminal defendant is not so fortunate. In Jonathan Brenton Griffin v. Commonwealth of Virginia, the defendant, a former police officer, was convicted of assault and battery for using excessive force against a handcuffed man in his custody. Griffin was subject to both an administrative and criminal investigation by the same officer, which give rise to his first assignment of error, which asserted that this violated Griffin's due process rights. Next, when tried, Griffin raised a Batson challenge to the Commonwealth's use of peremptory strikes. Third, he contends that the trial court erred by denying the admission of certain evidence concerning the victim’s character. Fourth, he contends that the trial court did not properly instruct the jury. Finally, he contends that the evidence was insufficient to prove that he committed assault and battery.

Whew! Not quite a "kitchen sink" appeal, but getting darn close.

I won't go into a great deal of the facts, as they are not really the crux of the appeal. Griffin was a residential community officer who took a resident into emergency custody and transported him to a local emergency room. While waiting to complete the registration process, Griffin apparently became aggravated by the man's fidgeting and kicked his legs out from under him, resulting in the man face-planting in to floor and sustaining injuries. Evidence of hospital employees substantiated that the assault was unprovoked.

An initial administrative investigation found that Griffin's actions did not rise to the level of criminal activity, but the police chief order a criminal investigation to be commenced. The same officer conducted the criminal investigation that result in Griffin being charged with assault and battery.

Griffin maintained that because he was required to participate in the administrative proceeding, the same officer should not have been allowed to conduct the criminal investigation as he was aware of Griffin's compelled Garrity statements, referring to a 1967 Supreme Court case in which this was found to be a violation of the 5th amendment right against self-incrimination. The Court of Appeals, Judge Beales joined by Judges Fulton and Lorish, found that Garrity did not apply here because the Commonwealth obtained all of its incriminating evidence “from a legitimate source wholly independent of the compelled testimony.” Griffin statements were not in the material give to the Commonwealth and from which it made the charging decision and were not used at trial.

During trial, Griffin raised a Batson challenge to the Commonwealth's using its peremptory strikes to remove four white male jurors. The circuit court accepted the Commonwealth's gender and race neutral reasons for the strikes. The Court of Appeals found that Griffin failed to preserve his claim of pretextual reasons to two of the jurors and the court did not err in accepting the reasons given for striking the other two.

Griffin sought to introduce character evidence about the victim's mental health and criminal history. Relying on two rules of evidence, Griffin argued that this evidence was admissible to show that the victim was potentially dangerous and combative. However, the first of these rules applies only where a defendant has raise a defense of self-defense, which Griffin had not, and the latter applied only if the facts were known to to officer at the time, which they were not, and mostly consisted of incidents after the event at the hospital.

Griffin proffered a jury instruction on the right of police officer to use non-lethal force, which the Court describes as "long, argumentative, and not a neutral statement of the law." The Court found that Griffin was not entitled to the instruction. Similarly, the Court found no error in the circuit court having preferred the Commonwealth's instructions on the elements of battery and that any potential error was resolved by a clarifying instruction given by the circuit court.

The third opinion today is LKQ Corporation and CCMSI v. Joseph Galarreta Morales. This is a case from another of the Court of Appeals' old stomping grounds, the Workers' Compensation Commission. Morales was injured in an industrial accident arising from the wreck of the 26-foot box truck he was driving in 2015. Over the years, Morales was either given light duty or taken off work entirely. In 2020, he was again released to light duty pending a corrective surgery. After the surgery, he was again rated as not able to work.

While off work, Morales allegedly refused to participate in vocational rehabilitation. The employer and carrier sought to terminate his benefits. A deputy commissioner agreed and Morales appealed to the full Commission. A majority of the Commission found that the employer and carrier had not met their burden of showing that the rehabilitation was appropriate to Morales' off-work status -- that is, was he capable of performing vocational therapy which was in many regards the equivalent of performing work duties.

The employer and the carrier appealed to the Court of Appeals, which today, Judge Beales writing for himself and Judges Fulton and Lorish again, finds that the Commission majority was correct. To be clear, the issue in this case was not whether Morales could do was the therapy required and the his refusal to do so was unjustified. Rather, the employer and carrier were required to approve that the vocational therapy was appropriate to his no work rating. Without evidence that the therapy was appropriate, there is no basis for saying that Moarles' refusal was unjustified.

Something of a rarity from the Court of Appeals, the last decision today is a published order from the third main area of the "old" jurisdiciton of the Court . . . or rather not from that jurisdiction as we shall. The reason that Judges Humphreys, Malveaux, and Fulton chose to publish this order is to provide precedent for the finding that the Court of Appeals did not have jurisdiction over subject matter jurisdiction over the interlocutory appeal of a pendite lite order requiring Maeng Jong Choi to pay retroactive and ongoing spousal support at the time the order was entered. However, shortly after the order was entered, the law was changed to give the court that power -- but this was not retroactive so the Court still didn't have jurisdiction over this case. But wait, there's more, while the appeal was pending, the General Assembly changed the law again and took back the power and did not include a savings clause, so even if the Court could have bootstrapped its jurisdiction, it wasn't going to do so in light of the subsequent action of the General Assembly.

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