September 13, 2022 Court of Appeals' Opinions

The Court of Appeals issued three published opinions on September 13, 2022, all involving criminal appeals. Shemon Devonte Clayton v. Commonwealth is an appeal of both a conviction and a revocation, but the only issue was whether Clayton was guilty of a violation of Code § 53.1-203(5), as it was this offense that resulted in the revocation of his prior suspended sentence as well as his current conviction.

You probably noticed that Clayton was not charged with a title 18.2 offense -- that is, an offense from the "criminal code." So, what is Title 53.1 and why does it have statutes that impose criminal penalties? It’s the "Prisons" title, and it has an entire chapter on Crimes and Criminal Proceedings Involving Prisoners. Put simply, it’s the criminal code for those who are already serving time for criminal activity. Code § 53.1-203 has ten separate offenses that are defined as felony offenses which committed by prisoners. Subsection 5 makes it a class 6 felony for any prisoner to "[p]rocure, sell, secrete or have in his possession any chemical compound which he has not lawfully received."

The chemical compound in this instance as a "synthetic cannabinoid" which was found infused in some "leafy material" in a wad of paper which a corrections officer saw tossed from Clayton's cell. Synthetic cannabinoids are "are human-made mind-altering chemicals that are either sprayed on dried, shredded plant material so they can be smoked." Clayton denied that he had tossed the paper, saying that it must have come from an adjoining cell.

Normally, where the only evidence is that of a corrections officer and a prisoner and the Court finds that the prisoner's self-serving testimony is not credible, that should end any question of sufficiency of the evidence. However, Clayton had any interesting take on the evidence here, contending that even if the wadded paper was thrown from his cell, this was not sufficient to prove that he was aware of the chemical that was infused in the leafy material. Relying on a prior decision of the Court of Appeals which spoke of chemical substances being "introduced" into the prison, Clayton argued that this required the Commonwealth to prove that Clayton brought or otherwise deliberately caused the substances to be brought into the prison.

The majority, Judge AtLee joined by Judge Friedman, ruled that Code § 53.1-203(5) is a strict liability offense, and all that was necessary for the Commonwealth to prove a violation of the statute was to show that Clayton possessed a chemical compound while he was a prisoner and that he had not obtained lawfully. In doing so, the Court indicated that Esteban v. Commonwealth, 266 Va. 605 (2003), supported the conclusion that a criminal statute which did not mention a mens rea or scienter elements does not require proof of guilty intent or knowledge.

The reason this opinion was published was that Judge Raphael, while concurring in the result based on Esteban, wrote separately because in his view Esteban does not comport with the view expressed in other jurisdictions that a statute must contain an express requirement of mens rea or scienter to have an intent or knowledge element for the offense. The concurrence is nearly twice the length of the majority and, if one did not know better, it might be viewed as a draft of the argument Judge Raphael would like to see brought to the Supreme Court of Virginia "in an appropriate case."

Devinceo Dontre Heart v. Commonwealth also involves a revocation of a prior suspended sentence, but, unlike Clayton, the violation was not a new crime but a so-called "technical violation." Technical violations of probation are addressed in a brand spanking new Code § 19.2-306.1(A) which has 10 different actions by a probationer that can result in a show cause, but which typically do not warrant revocation, at least on a first or second violation. However, "[t]he court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation." Now that's all pretty straight forward, except in subsection C, the statute then has this to say, "For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.

Now all of this is by-the-by because Heart didn't commit a third, or even a second technical violation. Instead, he committed a first technical violation after having committed two non-technical violations. The statute says nothing about non-technical violations, and that left the circuit court in a quandary -- could it revoke Heart's sentence for a first technical violation which was a third violation. The circuit court thought that it could, but the Court of Appeals (Judge Lorish writing for herself and Judges Beales and Ortiz) thought otherwise.

The Court's reasoning is unassailable from a strict reading of the statute -- it plainly says that the court cannot impose active time for a first technical violation, and that is what this is. The court can place additional restrictions on the defendant or extend the time of supervision, but it cannot revoke the sentence. Of course, it is certainly possible that the legislature did not intend this, but the Court is not permitted to add language to the statute to arrive at a result that may have been intended. The case is remanded for "re-sentencing."

William Winn Khine v. Commonwealth involves a conviction for 1st degree murder. Khine was alleged to have killed his wife. The Court makes short work of an objection to the admission of a hearsay statement that the wife had told a friend she was planning to tell Khine she wanted a divorce, finding that it fell under the state-of-mind exception to the hearsay rule. However, Judge Raphael, writing for himself and Judges Fulton and Ortiz, find fault in the circuit court's striking of Khine's evidence offered to support a defense of not guilty by reason of insanity arising from an irresistible-impulse.

In Virginia, legal insanity comes in two forms. The first, usually referred to as the M'naughten Test, requires the defendant to show that due to a mental disease or defect he was unable to appreciate the wrongfulness or criminality of his act. For example, if the defendant suffered from a delusion that passersby on the street were zombies and shot a "zombie" in the head believing that it was going to attack him, he would not understand that he had committed murder.

The other form of insanity is the "irresistible-impulse" defense. This requires the defendant to show that due to some mental disease or defect he was compelled to commit a criminal act even though he knew it was wrong. For example, if the defendant is under a delusion that a demon has possessed him and is compelling him to commit murder.

Khine presented expert testimony that he was suffering from "an acute episode of psychosis at the time of the alleged offense" and that voices were compelling him to murder his wife. In response, the Commonwealth presented the testimony of two lay witnesses, one of whom said that in daily contact with Khine, she never observed any behavior that was unusual or suggested that he was suffering from a mental disorder. The other witness testified that on the day of the murder she saw Khine with the victim and that he appeared "angry."

The Commonwealth did not present expert evidence -- which raises the question of whether it did not seek an expert opinion, which would have been foolish, or whether it had and didn't like the opinion it got and so decided not to call the witness, which would have been reckless. Instead, relying on the lay testimony, the Commonwealth moved to strike the defense of insanity. The circuit court did just that and convicted Khine.

As already indicated, the Court of Appeals reverses that ruling and remand the case directing that the circuit court "to evaluate that [insanity] defense on the merits." The Commonwealth asked for this remedy, rather than a new trial, probably thinking that the circuit court having struck the defense is not likely to find that Khine met his burden of proof. While Khine had requested a new trial, his counsel agreed that the case could be sent back for a re-evaluation. I think that was probably a wise concession, as it means the Commonwealth will have no opportunity to present its own expert evidence. As the defense must be proven only by a preponderance of the evidence, I think the Commonwealth may be in for a rude surprise -- the circuit court is not likely to view the Court of Appeals opinion as merely saying "Just put a different label on your decision," but will actually evaluate the merits of the defense in light of the reversal -- and with only ay evidence against the expert testimony may make a rejection of the defense difficult on remand.