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

Catching up after the holiday

The Court of Appeals Blog is catching up after taking a few weeks off. During that time, five published opinions were released, including a sharply divided en banc today. Let's start with the en banc, as it is surely destined for a petition for appeal to the Supreme Court by the Commonwealth.

Patrick Austin Carolino v. Commonwealth of Virginia was decided by a divided panel in December of 2022, reversing a conviction for strangulation under Code § 18.2-51.6. The panel described the incident as part of a "stormy romantic relationship" and the issue on appeal was whether the circuit court erred in admitting evidence of a prior bad act involving the defendant and the victim. The majority reversed, but the Commonwealth sought and received a rehearing en banc. Today's majority opinion is authored by Judge Friedman, who also authored the panel majority, and the dissent is by Judge Fulton, the panel dissenter, so that's a pretty good indication of how this case came down. The breakdown of the Court is also interesting. Joining in the majority are Judges Huff, Malveaux, Fulton, Ortiz, Causey, Chaney, Raphael, Lorish, Callins; joining Judge Fulton are Chief Judge Decker and Judges Beales, O’Brien, AtLee, Athey, and White. That's 10-7, so a solid win for Carolino, but hardly unassailable if appealed to the Supreme Court.

The initial dispute between the majority and dissent is on procedural grounds -- whether the assignment of error was sufficient and whether the record is sufficient to allow the court to decide a "right result, wrong reason" argument put forth by the Commonwealth. On the substance of the issue, the division is more nuanced as it involves the question of whether the prior bad act evidence (which included graphic photographs) was improper collateral evidence used to impeach the credibility of the defendant. On this point, I have long been of the view that a trial court must tread very lightly when being asked to admit prior bad act evidence for "impeachment," given the propensity of a jury to be prejudiced against the defendant. Accordingly, I find the majority view persuasive -- and as is usually in such cases, I am left wondering why the Commonwealth chose to take the risk. The case without the impeachment evidence was strong, and the jury had no reason to give the defendant any credibility. I also wonder whether the majority (or at least two members) would have felt differently if the photos had not been allowed.

Tara Ann Baez v. Commonwealth of Virginia was decided on November 14. Judge Fulton, joined by Judges Huff and Athey, affirmed Baez conviction for possession of a controlled substance. Among other issues, Baez appeal the admission of body camera footage from an officer who was not present for cross-examination or to authenticate the footage. As to the confrontation issues, it is well decided that a passive recording device is not a "witness" and merely because the offer who was wearing the device does not testify, his absence is not a basis for asserting the footage was inadmissible, provided the footage can be authenticated some other way. That other way is provided by .Virginia Rule of Evidence 2:901.

In general, video recordings are admissible to 1) illustrate in court testimony, or 2) serve as a silent witness. The circuit court found that the video was admissible under both theories. Baez makes the creative argument that the court should rely on only one theory. The Court of Appeals says, "Um, no, but nice try," and also finds that the recording was admissible under both theories.

Qualik Nashawn Davis v. Commonwealth of Virginia was decided last week. Davis was a previously convicted felon who was found to be in possession of both illicit drugs and a gun.

Let me pause here to make an observation. You know how they always say, it's not the scandal, it's the cover-up. Well, a corollary to that should be, it's not the first felony, it's the next one. Most people convicted of a felony for the first time get relatively light sentences, along with a strong admonition to follow the straight an narrow. While I will not act as an apologist for the lack of proper rehabilitation services in prison and on probation, the fact is that most first-time felons wind up getting into trouble with the law again and usually that means that they are facing enhanced penalties for many of the offenses they incur.

Davis argued on appeal that he could not be convicted of both illegal concealment of a firearm and possession of a firearm that was concealed after conviction of a felony because of double jeopardy. The Court of Appeals, Chief Judge Graff joined by Judges Athey and White, points out that the relevant statute describes the two offenses in the disjunctive, and that the "concealed" language only applies to the illegal concealment of a weapon by anyone, while the latter addresses the possession of a weapon by a convicted felon. As the two offenses have different elements that must be proved, the two convictions do not violate double jeopardy.

Graydon Manor, LLC v. Board of Supervisors of Loudoun County, Virginia was also decided last week. The issue was whether a circuit court sitting in appellate jurisdiction to review a decision of a board of zoning appeals can strike the evidence and dismiss the writ proceeding. Judge Ortiz, joined by Judge Humphreys and Sr. Judge Annunziata, say, "Well of course it can." Most people who don't appreciate the distinction between and trial and a certiorari hearing are probably wondering what the difference is. Certainly; a trial and cert hearing look much the same. The difference is that a cert hearing reviews the decision of the BZA under an appellate standard, not de novo. Thus, Graydon Manor argued that the trial motion to strike the evidence should not be available.

Graydon Manor is half right. Normally trial procedures are not available in appellate proceedings. However, in a cert proceeding, the circuit court can received evidence and is required tom make credibility judgments. In such cases, a motion to strike is appropriate because the court may conclude that the evidence presented by the petitioner is insufficient to establish legal error or caprice in the decision of the BZA. While this might be viewed as "short circuiting" the process and depriving the petitioner of a reasoned ruling that can be further appealed, that was not the basis of the appeal.

Finally, we come to the last case issued today along with Carolino, and Donald Calway v. City of Chesapeake comes with a disclaimer: You humble correspondent was counsel for the appellant who gets the win . . . albeit with an asterisk. The issue before the Court was whether a notice of violation of a zoning ordinance was voidable because it did not include a notice on the effect of a failure to appeal the notice as required by Code § 15.2-2311(A). The statute requires that the notice include four things: (1) that the party has the right to appeal within 30 days; (2) that the zoning decision will be final and unappealable if no appeal is filed within 30 days; (3) the cost of filing an appeal; and (4) the location of further information about appeals.

The city's notice expressly gave 1, 3, and 4, but not 2. The City contended that the statute did not require express wording, and the Court of Appeals, Judge Ortiz joined by Judges Malveaux and Friedman, agreed. However, the Court further held that while express language is not required, the notice must nonetheless convey all four elements. The Court further rejected the City's notion that because the website to which it directed Calway for further information about the appeal did include an explanation that the failure to appeal to the BZA would render the violation not subject to challenge that this was sufficient to proivde Calway with notice. The Court reasoned that the statute required the notice to appear on the violation, not on a website to which the property owner might or might not go. Accordingly, the notice of violation was defective and the subsequent enforcement proceeding was improper and will be dismissed.

Now that seems like a pretty definitive win, so where is the asterisk? In addition to the notice of violation, Calway sought and received an opinion from the Zoning Administrator. The Court concludes that while this opinion was not a sufficient basis for proceeding with the enforcement proceeding, "the administrator’s determination that the carport violates the zoning ordinance is potentially shielded from further attack in this or any future litigation." In other words, the Court is inviting (well, perhaps not inviting, but at least suggesting) the city to begin a new round of enforcement.

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