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

Court of Appeals Opinions: One From Last Week, One From This Week, and an En Banc Grant

Updated: Nov 22, 2022

Did you notice that there was no post to the Court of Appeals of Virginia Blawg last week? You didn’t? Well, there wasn’t. Your humble correspondent was on the road, though not for pleasure alas, and by his return to the Virginia Appellate Lawyer’s World Domination Bunker and Dry-Cleaning Emporium, it was just a bit to close to the holiday weekend to report on the one published opinion issued a week ago. Today, another published opinion was issued and a notice of an en banc petition from the Commonwealth was granted, so we’ve got some catching up to do.. First the opinions:

Markquall Antwoine Canada v. Commonwealth of Virginia involves several charges related to Canada’s possession and reckless handling of a firearm. The principal issue is whether the admission of a 911 recording was properly authenticated and whether it was testimonial in character, thus violating Canada’s Confrontation rights. As do so many incidents involving the reckless handling of a firearm, the underlying scenario involve a romance that went bad – maybe, but more in that later. Dezjah Watson was one half of the romance, Canada the other, and its abrupt and not amicable end was very recent before the night in question – recent enough that Canada still had some clothes at Watson’s apartment.

Canada arrived at the apartment while Watson’s sister and some children (the opinion does not identify them otherwise) were present. After Canada collected his clothes, he left the home and shortly afterwards Watson’s sister heard a gunshot, looked out the front door and saw Watson fleeing from Canada’s car with Canada sitting in the driver’s seat with the door open.

Watson called 911 to report that Canada had fired a small caliber handgun outside the apartment. She advised the dispatcher that Canada was a felon and that she believed he was returning to a nearby motel. She also provided a description of the vehicle he was driving, noting that it did not have registration tags.

Police arrived at the scene and recovered a .25 caliber shell casing on the ground near where Canada’s car had been parked. Going to the motel, police identified that vehicle Watson had identified as Canada’s and observed a .25 caliber round on the driver’s seat. Obtaining a search warrant for Canada’s room and the vehicle, police recovered additional ammunition, the keys for the vehicle and a .25 caliber handgun in the basket of clothes that was in the trunk of the car.

Canada was charged with being a felon in possession, reckless handling of a firearm and unlawfully discharging a firearm. At trial, when the Commonwealth sought to introduce the 911 recording, Canada objected that the recording and not been properly authenticated and further that the evidence was testimonial in nature and not subject to cross-examination (presumably referring to Watson’s statements – there being nothing inculpatory in the dispatcher’s responses). With respect to the authentication, Canada argued that the Code § 8.01-390 certificate accompanying the recording was not properly filled out, but the court ruled that as the actual custodian of the record had identified it in court, the certificate was not needed. With respect confrontation, the court ruled that the Watson’s words were “an excited utterance” and none of the dialogue not testimonial.

Now we get the “or maybe not” part of the romance gone bad. You may have noticed that nothing was said about Watson testifying for the Commonwealth, which presumably would have cured the confrontation issue. That’s because Watson was called a defense witness. Now Watson’s testimony was not so much a recanting of her statements to the dispatcher and police as it was a muddle of those statements and apparent contradictions. Rather than try to summarize myself, let me just quote the Court of Appeals rendering:

Watson testified equivocally to the events of the night of November 6, 2020. According to Watson, she called 911 because she was scared and was unsure what Canada would do because he wasn’t talking to her. She also stated she had been drinking that day. At one point, she stated that everything she said in the 911 call was true, but also stated Canada never had a gun and never shot a gun that night. She testified that she put the gun in the clothes hamper and that Canada did not know it was there. She claimed she had put it there because she was angry that Canada had been cheating on her. However, later in her testimony she said she did not place the gun in the hamper. On redirect, she admitted to purchasing the gun herself for home defense. According to Watson, Canada only threw rocks at her car, which produced a sound like a gunshot. Further, according to Watson, what she told the 911 operator was designed to get Canada in trouble because he had hurt her emotionally. Watson discussed the case and evidence with Canada while he was incarcerated, but she testified that did not influence her testimony. On cross-examination, Watson admitted that she previously testified at a bond hearing that Canada had never been at her house on the night of November 6, 2020. She then admitted that either what she said at trial or what she said at the bond hearing was untrue. She also admitted to previously saying she had not talked to Canada about the case at the bond hearing, but on cross-examination agreed that she had. Watson also agreed on cross-examination to speaking with Canada and Canada stating that Watson should not have told anyone they had spoken, that Watson could have claimed the gun, and that Canada suggested she could still claim the gun. However, Watson never acknowledged that Canada had fired a shot.

Most experience defense attorneys know that this is not how one builds reasonable doubt. Given sister’s statements and the later police investigation, as well as Canada’s pretrial conversations with Watson, the circuit court found Watson’s trial testimony incredible and credited her statements on the 911 call. Canada Was convicted of all three offenses.

Judge Humphreys, joined by Chief Judge Decker and Judge Friedman, affirm those convictions, finding that live testimony of the custodian of the 911 recording (and presumable any other document that may be authenticated Code § 8.01-390 certificate) is a perfectly acceptable way to introduce it into evidence. In fact, if you pause for a moment to reflect, you will probably recall that the purpose of Code § 8.01-390 was to provide an alternative method of introducing government record to live testimony. If the government decides it’s inconvenient to have the custodian come to court, the statute provides for methods of authentication that avoid hearsay issues, but nothing in the statute requires the government to use those methods if the custodian is available.

Now that the recording is in, are the statements therein testimonial? Well, that’s not as easy a question as you might think.  After all, the 911 operator doesn’t swear in the caller – but a false 911 call (like “SWATing” someone) is a criminal offense, so the caller is facing a potential criminal charge for not being truthful. There is also the very obvious fact that the circuit court here expressly relied on Watson’s statements in the call to convict Canada.

The Court of Appeals gives this issue the serious consideration it deserves – because where there is ample case law that says 911 calls a generally are not testimonial, those cases also state that each instance must be judged on its own merits under totality of the circumstances. To summarize briefly, the Court found that Watson’s statements were present sense impressions of a recently occurring event and were not being given for the purpose of preserving testimony. That makes them non-testimonial even if subsequently relied upon to establish Canada’s guilt.

Canada also challenged the sufficiency of the evidence, asserting that Watson’s “semi-recantation” was sufficient to cast doubt as to whether he actually possessed the firearm. O, Canada! (Come on, you knew I was going to work that in somehow.) The simple fact is that the trial judge made an express finding that Watson’s in court testimony not credible . . . and credibility is a matter for the trier of fact, not the judges on appeal.

The same panel that decided Canada last week issued Jaquan Ramone Brown v. Commonwealth of Virginia this week, with Judge Friedman penning the unanimous opinion. And while the opinion is 20 pages long, the issue is very brief – do the COVID-19 Emergency Orders override statutory speedy trial? The answer is just as short – yes, yes they do.

Brown was indicted on January 9, 2020 and held continuously in the custody of the Commonwealth until his trial in May 2021 – well beyond the five-month statutory speed trial date.  The problem is, of course, that on March 16, 2020, the Supreme Court of Virginia declared a judicial emergency based on the COVID-19 pandemic and issued the first of a longer series of orders suspending all non-emergency court proceedings and stating that “all deadlines are hereby tolled and extended, pursuant to Code § 17.1-330(D). March 16 is well within the five-month speedy trial deadline. Moreover, the Supreme Court in a later order expressly stated that statutory speed trial limits were tolled by the first and all subsequent emergency orders until individual circuit courts had approved plans for resuming jury trials.

This appeal is published because, while other cases have address the legitimacy of the suspending of speedy trial by judicial emergency orders, Brown brings a new twist on that argument – he asserts that the Supreme Court’s orders violated the Separation of Powers Doctrine.  Brown reasons that the legislative branch enacted the statutory the speedy trial right and the judicial branch cannot undo it by order. It’s a neat argument, but it has one major flaw.  The legislative branch also enacted Code § 17.1-330, the statute that gives the Court the power to declare judicial emergencies.

Brown replies, “Sure, but the Speedy Trial Statute enforces a constitutional right, and the legislature can’t give the court’s the power to suspend the Constitution.”  Well, yes, and know. It is true that the concept of speedy trial is founded in Constitutional Due Process, but the speedy trial statute is not simply a codification of that right. In fact, it is possible to argue that a trial that comports with the statute is still constitutionally infirm. The Court of Appeals concludes that tolling the statutory speedy trial deadline did not impair Brown’s ability to challenge the delay on Constitutional grounds.

Statutory speedy trial is basically a game of arithmetic. You count the days between the first day (typically the say the defendant is taken into custody on a warrant other lawful process), determine how long he was held in custody or out on bond (giving the Commonwealth five-months to try him vs. nine months) and then subtract any delays “chargeable to the defendant.”  It’s frequently this last calculation that causes the most disagreement, because time can be charged to the defendant even if he was not the cause of the delay – if the defendant agrees to or even “acquiesces” in the delay, it may not count toward statutory speed trial. If at the end of the calculation, the time exceeds that allowed by the statute, the defendant goes free . . . unless that deadline was tolled by a judicial emergency order.

Constitutional speedy trial, by contrast has almost nothing to do with the passage of time. Rather, it addresses the impact of what happened between the crime (not the arrest) and the trial. The issue in constitutional speedy trial is did the delay in bringing the defendant to trial cause unfair prejudice to his being able to defend himself against the charge. An easy example is where the government has reason to believe that a witness can provide favorable evidence for the defendant, but that witness is terminally ill. If the government simply bides its time before charging the defendant, who does not know of the need to preserve the witness’ testimony, until the witness shuffles off his mortal coil, and the defendant subsequently learns of this, he can argue that by waiting to charge him, the government prejudiced his ability to call a favorable witness in his defense – even if the delay was only a few weeks or months.  In other words, constitutional speedy trial is “hyper specific” to the individual case.

Here, Brown couldn’t show any real prejudice from the delay – especially as in doing the statutory speedy trial calculus, the Court found that only about 135 of the days were attributable to the tolling order and most of the rest of the time was chargeable to Brown’s own continuances or other factors not chargeable to the Commonwealth – and that’s the one thing statutory and constitutional speedy trial have in common, the defendant cannot create or permit the circumstances of the delay to occur and then cry foul.  For example, if the defendant “helps” the dying witness get on with job, he can’t then say he will be prejudiced by not being able to call the witness.

And at last we get to the Commonwealth’s successful request for a second bite at the appeal . . . ummm . . . apple, and I get to do a little self-congratulatory back patting.  On August 2, 2022, you humble correspondent concluded his summary of Jordan Darrell Morris v. Commonwealth with the observation that “I think we are bound to see more on this issue.” As you have undoubtedly decerned, the case in which the Court has granted the Commonwealth’s petition for rehearing en banc is in deed Morris. If you prefer not to go back a read the prior post about the case, here is a quick refresher. Morris was arrested after he drove almost all the way to an emergency room in the outskirts of Richmond. Police found Morris in his car, somewhat oddly arranged part on and part off the pavement of the parking lot and very obviously under the influence of some very powerful chemical substances.  Morris told the police that he feared he had overdosed, was suicidal, and was going to the emergency room to seek treatment. The issue was whether Morris was entitled to the immunity of the medical-amnesty statute, Code § 18.2-251.03, and that hinged on whether the requirement that the defendant be in a medical crisis is based on objective or subjective data. I think it is fair to say that Morris was not objectively suffering from an overdose, but it is also true that he subjectively believed that he was in a crisis – though whether it was a medical overdoes, a psychological reaction to the substances he took, or a combination of both is debatable.  Two judges of the Court of Appeals thought the statute covered Morris’s situation, but another did not.

As a dissent it one of the two possible ways to justify seeking a rehearing or rehearing en banc (the other is if there is an opinion by another panel that it is directly on point and reaches a different result), the Commonwealth decided to give the Court of Appeals another shot at this case, and got it.  However, what the Commonwealth will not have when the case is before the Court en banc is the friendly face of the dissenting judge. That’s because the dissent was by Justice Russell, in one of the last cases he sat on before his elevation to the Supreme Court of Virginia.  Even if the case does go on to the Supreme Court, it is likely that Justice Russell would adhere to traditional and recuse himself from consideration of this case (and any other he had direct contact with during his tenure as a Court of Appeals judge).

An interesting point here is that some judges elevated from the Court of Appeals to the Supreme Court or a Circuit Court to either appellate court recuse themselves from every case that originated in their former court while they were sitting whether they actually were involved in the decision, others do not. Although I do not recall it every being done in Virginia, I do know that in some instances judges that moved to a higher court declined to recuse themselves from case they had decided – in effect getting to review their own rulings. The judicial canons do not mandate recusal in any case, only providing guidelines, but the “Caesar’s wife” approach is always the better course.

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