Of Carjackings and Appellate Unicorns
Continuing my review of cases handed down before this blog launched, I came across Fletcher v. Commonwealth, a published decision from November of last year, which is worthy of note because it contains that rarest of animals in appellate jurisprudence – an unpreserved error that nonetheless is subject to review on appeal to protect the integrity of the courts and to enable the appellate court to attain the ends of justice. When the appellate courts decline to review an unpreserved issue under the ends of justice exception, the most cited example of when this unicorn will appear is where the trial court has entered an unlawful sentence, and that is precisely what happened in Fletcher.
The facts of the case read like the nightmare scenario of any person driving in a rural area late at night, particularly a young woman on her own. The victim stopped at a gas station to put air in her tires. Fletcher pulled into the station and offered to assist her. When she declined, Fletcher asked if she wanted to “hang out” and “smoke some weed,” but she again declined. Fletcher persisted in his attempts to engage the victim in conversation and when she left the gas station he followed directly behind in his vehicle.
The victim grew concerned and texted a friend and then called 911. The 911 dispatcher remained on the line, and the subsequent encounter between the victim and Fletcher was recorded. Fletcher sped around the victim’s car and forced her to stop. When she attempted to back away, her car ran off the road, and Fletcher then backed his car in front of hers, blocking her escape.
Fletcher was wearing gloves and carrying a tire iron when he exited his car. He demanded that the victim exit her vehicle and follow him. When she refused, he struck the window several times with the tire iron while yelling threats and obscenities. Another vehicle approached the scene, and the victim was able to signal that she needed aid. Fletcher drove away, returning a short while later, but left again when he saw the victim was with the driver and passenger of the other vehicle. Sheriff’s deputies arrived on the scene a short while later.
Either the victim or one of her rescuers had the presence of mind to take down Fletcher’s license tag number, allowing authorities to identify Fletcher as the owner. Fletcher’s vehicle was seen by another deputy driving at high speed away from the area where the victim had been run off the road. Fletcher was apprehended sometime later.
Fletcher was convicted of carjacking, in violation of Code § 18.2-58.1; attempted malicious wounding, in violation of Code §§ 18.2-26 and 18.2-51; abduction, in violation of Code § 18.2-47; felony destruction of property, in violation of Code § 18.2-137; and assault, in violation of Code § 18.2-57. On appeal he contended that the evidence failed to show that he seized or seized control of the victim’s car, an element of carjacking, and further that the Commonwealth failed to prove that he had the requisite intent to maliciously wound the victim.
On the first issue, the Court of Appeals held that seizure of control of a vehicle requires only that the defendant must restrain the driver from moving the vehicle. By blocking the victim’s vehicle from returning to the roadway, the Court held that the circuit court could have found that Fletcher had “seized control” of the victim’s vehicle, thus the verdict on this issue was not plainly wrong or without support in the evidence.
With respect to attempted malicious wounding, the Court of Appeals acknowledge that there was conflicting testimony as to the force Fletcher used when striking the window with the tire iron. Fletcher maintained that as the window did not shatter, there was no evidence that he struck it with sufficient force for the trial court to infer that he intended it to shatter and to cause harm to the victim. The Court, however, noted that there was considerable other evidence to suggest that Fletcher intended to harm the victim, including his violent effort to force her to stop her vehicle, his threatening the victim in a voice so loud that it was clearly audible on the 911 recording through the close door of the car, and the victim’s testimony that she believed the window would break. Considering this evidence, the Court held that the trial court was within its province as trier of fact to reject Fletcher’s self-serving testimony.
So now we reach the unicorn. Fletcher was initially charged with abduction with intent to defile, a class 2 felony. The trial court convicted him of the lesser included offense of simple abduction, a class 5 felony. The Court of Appeals does not explain how it happened, but at sentencing, the trial court imposed sentence based on the original charge, not the lesser included offense. As the issue reached the appellate court, it is clear that no one – the judge, the probation officer who prepared the pre-sentence report, the Commonwealth’s Attorney, or Fletcher’s trial counsel – noticed the error. When the error was noted sometime afterwards, however, it was so obvious that the Commonwealth did not bother to contest the issue. The Court reversed the sentenced for abduction and remanded for a new sentencing proceeding.