On the 12th Day Before Christmas, the Court of Appeals Gave Two Opinions to Me

Yes, I know that the 12 days of Christmas are between Christmas and Epiphany, but why not celebrate the 12 days before as well. Alas, the two appellants in today's published opinions have naught to celebrate.

William Gary Shahan v. Commonwealth of Virginia arises from convictions for first-degree murder, robbery and associated firearms offenses. Shahan appeals the convictions on two grounds, the first of which is the more interesting as the second is a sufficiency argument that is destined to fail as almost all such arguments are. The first issue, however, is something you don't see very often -- Shahan wanted to present evidence of the civil suit he filed against the Norfolk Police Department alleging that claims for defamation, false imprisonment, and intentional infliction of emotional distress against two police detectives who had arrested, detained and interrogated him with respect to the crimes for which he was facing trial. He offered the very creative argument that evidence of the suit was relevant to prove his innocence because if Shahan were guilty, he likely would not have been “willing to be the face of a lawsuit” against the police. The circuit court responded that one “can file a civil suit fraudulently, in bad faith, knowing full well that he’s guilty of the offense.”

The victim, Clifford Duty, had been in the illegal marijuana trade since 1999. Sometime in late January 2018, he was shot and killed in his apartment, where the body was not discovered for several days. Cellphone records showed that Shahan was in the vicinity of Duty's apartment during the period in which the murder would have occurred, and Duty had placed a call to Shahan around that time. A forensic review of Shahan's phone showed that records of both call and test messages had been deleted for a length period of time which police theorized corresponded with his contacts with Duty. Cellphone record also showed that Shahan and Duty's phones were in the same location away from Duty's apartment during the period after he was likely murdered until Duty's cellphone lost power.

Financial records showed that Shahan was virtually broke just prior to the murder, but deposited $1000 in cash into his bank account shortly afterwards. Shehan's father owned a handgun of the same caliber as the weapon used to kill Duty, and reported it missing several days after the killing.

When first interviewed by police, Shahan admitted having met with Duty sometime close to when the murder occurred, but denied have killed or robbed him. Shahan had been a regular customer of Duty for nearly a decade, often purchasing marijuana from him, which Shahan then resold. He claimed that the money he deposited in the bank was from side work as a tattoo artist and from selling marijuana. He offered no explanation for why he was apparently in possession of Duty's cellphone after Duty was killed.

The case was entirely circumstantial, however a jury can convict on circumstantial evidence and did so in this case. The conviction occurred on June 11, 2021, and Shahan nonsuited the the civil action against the police on August 5, 2021, though this fact was unknown to the Court of Appeals. Shahan recevied a total sentence of 43 years.

The Court of Appeal first addresses the assertion that a defendant who files a civil action against the police for his treatment by them during the investigation of the offenses for which is then being tried. Examination of the Court record showed that Shahan filed this action in December of 2018, about three months before he was indicted, and he alleged that this sowed "investigatory bias." He also asserted, as he did in the trial court, that a guilty person wouldn't bring a civil action for false arrest because it would subject the defendant to civil discovery.

The Court, Judge Humphreys joined by Judges Athey and Callins, found that "[t]he fact that Shahan filed a civil suit against the police investigators proves only that; it does not tend to prove or disprove who committed the crimes Shahan was charged with." Even the inference that an innocent person would not file such an action would be "too attenuated" to permit the jury to find that the evidence tended to prove Shahan was not guilty.

As to the sufficiency of the evidence, the Court held that while circumstantial, the jury could infer that Duty would not have voluntarily surrendered his cellphone and that the totality of the evidence was sufficient to show that Shahan was the criminal actor in Duty's murder.

Arastoo Yazdani v. Soraya Sazegar is a domestic relations case, but its all about the awarding of attorney fees. The unhappy couple met through an online dating service and while the wife was visiting the US on a two-week tourist visa, and after a whirlwind romance, married in November 2018. The wife subsequently discovered that her not-so-loving hubby was contacting other women on the same dating site where they had meet. The ensuing divorce was messy, but no more than usual, and the parties eventually agreed on a settlement of all matters except an award of attorney's fees. The circuit court awarded $33,948.64 to the wife.

Now an award of attorney's fees is committed to the sound discretion of the trial court and rarely warrants a published opinion. However, Judge Lorish, joined by Judges Huff and Raphael, apparently though this case had some value because the wife alleged that husband waived his right to appeal the case as part of the settlement. The Court finds that the issue was not waived because the language of the settlement agreement was not express with respect to the waiver of attorney's fees, which were "reserved" for the court. Thus, while issues that were not reserved their presumably was a waiver, but not resolving the fees issue, the agreement was not a waiver for that issue (or, one assumes, any other issues decided by the court not covered in the agreement).

The Court then found that award of fees to be reasonable under the circumstances and that a second issue raised for the first time on appeal was waived. The case was remanded to the circuit court for an award of fees incurred on appeal.