The Court of Appeals gives us two published opinions today, both in criminal cases and with predictable results, though the latter may be subject to further review.
Adrian Donnel Aley v. Commonwealth of Virginia is a challenge to the sufficiency of the evidence for felony hit-and-run involving personal injury and felony eluding. Aley did not challenge convictions for reckless driving by speed and endangerment. The facts certainly support these latter two convictions as Aley was observed going well above the 50 MPH limit on a dark, winding, country road in Stafford County. Sherriff’s Deputies initiated a high-speed chase before losing sight of the vehicle.
Aley’s girlfriend, at least at the time, was a passenger in the vehicle and testified that he told her driving at a high rate of speed was an “adrenaline rush.” He very courteously adjusted her seat belt and reclined her seat to “relax” her and then proceeded to demonstrate his point. When he nearly rear-ended another vehicle she became “apprehensive” (that’s judicial understatement for “scared out of her wits”).
Eventually, Aley flipped the vehicle while attempting to break. The couple fled to the woods to avoid detection. Although his girlfriend told him she had been injured in the crash and “needed to go to the hospital,” Aley insisted they had to “run from the cops.” They eventually made there where to Aley’s home where his brother administered first aid.
The crashed vehicle was not discovered until daylight. There was blood inside the vehicle. It was “obvious” to the experienced investigator that there had been two passengers and that one or both were injured.
Tracing the car to Aley’s home, which he shared with his parents, Aley’s father denied to the investigator that the occupants of the vehicle were present. Later, Aley, overheard by the girlfriend, told his father that “his friend” was driving the car when the accident occurred. Chivalry for Aley is apparently limited to helping the damsel relax before almost killing her.
Eventually, the girlfriend fessed up to law enforcement. Fortunately, her injuries, though significant were to soft tissue. Aley was charged with the four crimes of which he was ultimately convicted.
At trial and on appeal, he argued that the deputies’ cruiser had never been sufficiently close to his vehicle for it to be proven beyond a reasonable doubt that he was aware that they were attempting to conduct a traffic stop. The circuit court rejected this argument at the motion to strike. After conviction by the jury, Aley moved to set aside the hit and run, arguing that Aley argued that the Commonwealth failed to prove that he knew or should have known of the passenger’s injuries because she never “communicated her injuries” to him and they were “not visible” the day of the incident. The circuit court overruled the motion to set aside.
The Court of Appeals deals with the second issue first, not that the requirement of the hit and run with injury statute does not require the driver to be aware of the precise nature of the injury, but to render aid to anyone who may be injured. Here, the evidence clearly showed that the girlfriend communicated that she wished to go to the hospital and Aley declined to assist her to do so. This was sufficient for the jury to find that Aley had not rendered aid.
With respect to the evidence supporting proof that Aley was aware that the deputies were attempting to get him to stop, well, let’s just say that while there was considerable circumstantial evidence that Aley should have seen the flashing lights, the real clencher here is the girlfriend’s (I think we can assume ex-girlfriend’s testimony, if she has any common sense) testimony of a statement Aley made most decidedly against his interest has he accelerated away from the cruiser: “Oh s*** . . . there is cops, I have got to run.”
Jessie Lee Green v. Commonwealth of Virginia, today’s other published opinion, is from a “’splain why” docket. A “’splain why” docket for those not familiar with the term refers to the day set aside by the court the here revocations of parole or probation where the judge would like the defendants to ‘splain why they shouldn’t be sent back to jail or prison.
In Mr. Green’s case, the issue was whether the court would send him to jail on a suspended A&B on a law enforcement officer and petit larceny, serving six months of a two year total sentence. Green subsequently committed another larceny and in addition to serving time for that offense was revoked on the prior probation.
Upon his next release, Green turned away from crimes against the person and property and instead succumbed to the siren call of illicit drugs. Once again asked to ‘splain why, Green obtained a continuance and during that time, new laws regard the ability of the trial courts to impose time following release became effective. The Commonwealth, anticipating that Green would like assert that these laws now applied to his case, presented the court with two sets of guidelines – one applying the law in effect at the time of the violation and another for the date of the hearing. The court ruled that the changes to the law were procedural, not substantive, and thus were not applicable to a case continued from before the effective date of the new law.
The Court of Appeals affirms, and that is to be expected given that, as the main opinion points out, retroactive application of laws is not favored in Virginia. But as there is a “main opinion” there must be a separate opinion, and indeed there is. Judge Chaney dissents. In her view, the change to the saw was substantive in that it limited the authority of the trial court to impose sentences in revocations beyond the original term that might have been imposed for “technical” violations.
I suspect that this will not be the last word on this issue and that construction and determination of application of the new law regarding revocation is ultimately destined for the Supreme Court. If I were to hazard a guess, I think that the majority view here is more likely to find a receptive audience in the higher court, but it is difficult to say this with any certainty while two seats remain unfilled for the active seven member court.