Having just last week participated in the first ever VaCLE Virginia Appellate Academy during which one of my roles was to advise some of the participants on the subtle art of brief writing, I found the appearance on the one published open from the Court of Appeals issued today to be very gratifying. I know the photo below is a bit small and grainy, but the text is irrelevant to the point I am about to make.
Look at the bottom of the page. See all that white space? The reason that white space is there is because on the next page there is a heading and that heading has a footnote. Had the court formatted the page so that the heading and all (or most) of the footnote was on page 1, it would have looked decidedly odd. Here’s the point I made to the participants at the Academy and that I make here now — the visual appearance of a brief (or opinion) matters. Odd page breaks, widowed and orphaned lines of text, run-over footnotes, broken up block quotes, and a host of other formatting issues make the brief difficult to read — and you don’t want the audience for your brief, whether it’s the Court and court staff, opposing counsel, or your client, being distracted from the content of what they are reading by the appearance of what they are reading. I have heard countless judges tell attorneys that “a badly formatted pleading or brief” will not lose your case, but then in the next breath say, “Of course, judges are human beings and can’t help but be influenced by neatness and good grammar” or the lack thereof.
In short, if you have a winning argument, and can communicate it adequately, an odd page break or non-critical typo is not going to sink your case — but why take the risk? Learn to use the very powerful tools of modern word processors and printers to make your argument impressive in content and form. But don’t overdo it. It may be easy to emphasize a point with Bold, Underscoring, and Italics, but trust me when I say that it is not effective. The best way to tell if your brief is “looking good” is to compare it to an opinion of the Court that will be reading it. Following the Court’s style for headings, emphasis, citations and footnotes will present a document that the judge or justice is “used to seeing.”
Now on to the actual substance of Travor Lamont Lucas v. Commonwealth of Virginia. Mr. Lucas’ story begins as so many do with a simple traffic stop for defective equipment. The officer who stopped the vehcile Lucas was a passenger in felt that it had taken the driver an inordinate amount of time to respond to the cruiser’s lights. Lucas appeared “nervous” when the officer approached the vehicle.
Now let me stop here and say a word about this classic introduction to a criminal case — people will constantly say, “but of course he was nervous; of course the driver didn’t stop right away . . ..” Well, after three decades of reviewing testimony of police encounters with the public, and more recently being able to review bodycam footage, let me take up for the folks in blue (or brown or green or khaki based on the agency and jurisdiction) — there is a “normal nervousness” and there is a “odd sort of nervousness.” Same thing with how a driver pulls over — sometimes it’s clear the driver is just looking for a safe place to stop, and other times it’s, well, not clear if the driver is going to stop. I have had more than one officer tell me that the most worrisome behavior is the driver who stops immediately as this can signal a willingness, perhaps even an intent, to confront the officer — it means that the natural “fight or flight” instinct for that person defaults to “fight.”
Anyway, Lucas had good reason to be nervous as the driver didn’t have a driver’s license. Now this means that the officer had a good reason to detain the vehicle for longer than it would take to give a warning or summons for defective equipment. Long enough, in fact, for a drug-sniffer K-9 unit to arrive on the scene. Asking Lucas and the driver to exit the vehicle, the dog alerted the officers to the presence of narcotics inside, and sure enough suspected narcotics were found inside a folded five-dollar bill.
Lucas now did something that in retrospect he probably shouldn’t have. He body checked the officer trying handcuff him and ran. But not far. One of the officers tackled Lucas after a brief chase and as they went down, the officer heard a distinctive sound that he suspected was a metal firearm falling on the ground. Another officer observed the weapon “fly” out of Lucas’ pants. There was also bodycam footage from earlier that established that no gun had been in the area where Lucas was tackled prior to that time.
Lucas was eventually charged with and convicted of multiple offenses arising from this incident including obstruction of justice, possession of a firearm by a previously convicted violent felon, and possession of a concealed weapon. Exercising his right to appeal, Lucas has several arguments on why this was all a big misunderstanding. Judge Fulton, joined by Judges Ortiz and Raphael, however, seem to have a different understanding.
First, Lucas contends that his refusal to be handcuffed, body checking the officer, and flight from the scene was not really obstruction of justice, it “merely made the officer’s task more difficult and it did not prevent them from performing their duty.” Ummm . . . Newsflash . . . that is almost a perfect definition of “obstruction of justice.”
Lucas relies on a Virginia Supreme Court case that held “mere flight” was not obstruction of justice, but the Court of Appeals notes that this was not “mere flight.” Perhaps the lesson here is that you should run before the police know exactly why your are running, not after they’ve already found evidence sufficient to arrest you and, in fact, are in the process of doing so. I am not saying that running is a good idea — just that as in comedy, timing is everything when not wanting an obstruction of justice charge.
Lucas next argues that the evidence of his possession and concealment of the firearm did not exclude several reasonable hypothesis of how the weapon came to be in the middle of the street close to where he was tackled during his flight and where at least one officer saw it “fly out of his pants.” Lucas suggests that the driver threw the gun from the vehicle or from the side of the road as Lucas fled. In the alternative, Lucas argues that the gun was already in the road and was disturbed when he stumbled upon it as the officers tackled him. Finally, Lucas argues that the Commonwealth failed to prove that the firearm was about his person and readily accessible, as was required to convict him of possession of a concealed weapon.
Here is where Lucas runs into two well known mantras of appellate practice. First, the evidence is (with a few exceptions) always viewed “in the light most favorable to the party that prevailed in the trial court” — and none of the exceptions to that rule apply when challenging the sufficiency of the evidence to sustain a criminal conviction. Second, a reasonable hypothesis of innocence is one that “flows from the evidence, not those that spring from the imagination of the defendant.” There was no evidence that the driver threw anything into the street, and there was uncontroverted evidence that the street was empty prior to Lucas’ flight. Judgment affirmed.
A quick word on an unpublished opinion that was released today, Teresa Mary Maust v. Commonwealth of Virginia. I wish the Court had chosen to publish, if only because it’s pretty rare to get a “reversed and final judgment” in a criminal case. I concede that the facts are fairly unusual, so the precedent may not be worthy of a published opinion, but the case itself is worth a brief mention. Maust was charged with distribution of a controlled substance having been caught up in what is commonly know as a “controlled buy.”
A controlled buy typically involves a police informant — usually cooperating as part of a plea agreement or to avoid criminal charges — who arranges to buy drugs from someone the police already suspect to be dealing (usually based on information from the informant). There are very specific procedures that must be followed to avoid claims of entrapment and to assure that the informant is not, for lack of a better word, hoodooing the police by faking the purchase from an innocent person. This typically requires the officer handling the informant to check that the informant 1) has no drugs on his person, 2) only has the marked bills provided by the police to make the purchase, and no other money, and 3) has no opportunity to purchase drugs from someone other than the target — done by visual and audio surveillance of the informant from the time he leaves the handler to when he returns with the drugs.
Even the best laid plans can go wrong, and in this case they did. After checking Gale, the informant, for drugs and money, the officer supplied Gale with the marked bills and then followed Gale, who was driving his own vehicle, to Maust’s residence. Now this is troubling, for while the officer had searched the vehicle, there is always a chance for mischief when the informant and the officer are separated.
Although Gales was wearing a recording device, the officer was not able to hear live audio (the opinion is not clear as to whether this was a fault of the equipment or that it was only a recording device, not a transmitting one). Again, this is troubling, but not fatal, to the operation, as the recording can serve as evidence that there was no one else present at the transaction (at least not speaking) and that the target is conducting the negotiations.
Then, as they arrived at Maust’s home, Gale got a bit ahead of the officer, who then lost sight of Gale’s vehicle and did not actually see Gale exit the vehicle, or see him enter and later exit Maust’s house, possibly twice. The officer was able to see that there were several other cars present, at least suggesting that other people where likely in the vicinity.
So, what did the tape tell us? Something that was not disclosed before in the opinion — that Gale was not alone in the car during the drive to Maust’s house. An unidentified person can be heard talking to Gale on the drive and in fact it was this “companion” who texted Maust to say that Gale was “here.” More importantly, the officer conceded that he had no idea where Gale’s companion was when Gale was supposed to be buying drugs from Maust, nor is it clear where the companion was when the vehicle was searched, if the companion had any cash on him (or her) or for that matter, what the H*** this person was doing in the middle of a controlled buy.
Now if I am a defense attorney (or a savvy prosecutor), the little tinkles of concern I had about the informant driving his own vehcile, the officer not being able to monitor the audio, and the inability to see Gale actually go into the house have just turned into blaring klaxons. AH-OOGA! AH-OOGA! Houston we have a problem.
Now, there is still plenty of opportunity to put out the fire. For example, the audio recording may establish that Maust openly discussed selling drugs and accepting cash from Gale. Except that she didn’t. Instead, there was some conversation about how much Gale “owed” Maust, and a great deal of questions about some appliances Maust was selling (and no testimony that this was some euphemism for drugs). Nothing about drugs. Eventually Gale returned to the predesignated meeting place and gave the officer three pills and some money that was not part of the original marked buy money.
Now I am going to give a quick summary of what followed. Police got a search warrant, and in searching Maust’s home found considerable evidence that would be entirely consistent with drug trafficking — drugs, of course, but also large sums of cash, a pill press, an “owe sheet” and numerous prescription drug bottles. Among the cash recovered were the marked bills given to Gale for the buy. Maust also made some incriminating statements, while also trying to deflect blame to her ex-husband who was a “way bigger drug dealer.”
Now to this point, experienced criminal lawyers are saying, “Hmmm . . . a close case, but if the circuit court doesn’t have a problem with the initial drug buy and excludes the evidence from the search, it will all come down to credibility. Gale will testify he bought drugs from Maust; Maust will deny it, and the judge will believe Gale.” Except there is one hitch in that plan . . . Gale died before the trial.
Since this is an appeal from a conviction, not an interlocutory appeal from a suppression motion. We know the circuit court did not have any trouble with the legitimacy of the buy, and then found that there was sufficient evidence to show that Maust was the person from whom Gale acquired the drugs.
That’s not how two members of the Court of Appeals see it. Judge Chaney, joined by Judge Causey, find that the circumstances surrounding the buy are sufficiently questionable to raise a doubt as to whether Gale obtained the drugs from Maust. In effect, that is the ace at the bottom of the house of cards on which the rest of the evidence rests, and for the Court, taking that card away causes the rest to fall with it. While there is substantial evidence that Maust was “in the business of dealing drugs,” she was charged with distribution of drugs to Gale. The majority says that the ambiguity about the controlled buy is sufficient for reasonable doubt.
Judge Malveaux, however, takes issue with this rationale. For her, this is a sufficiency case, plain and simple. And applying the “light most favorable” standard, the evidence, albeit circumstantial, is sufficient to find that Gale obtained the drugs he turned over to the officer from Maust.
My question, more for trial counsel I suppose, that for the Court of Appeals, is was there a motion to suppress the evidence of the search and if not, why not? Given the very atypically nature of the buy, challenging the search warrant issued based on the buy would seem a natural action to take. It occurred to me is that if there had been a suppression hearing and Gale was still living, his testimony, subject to cross-examination, might have been preserved at that proceeding and could have been used at the trial. But, if the trial court had found that the questionable drug buy was insufficient to sustain probable cause for a warrant, all that circumstantial evidence that Maust was dealing drugs would go away . . . probably along with the charge.