I freely admit that this post is overdue. The last several weeks have seen some frenetic activity in the Virginia Appellate Lawyer Social Media Bunker, but none of it was related to coverage of the most recent published opinions of the Virginia Court of Appeals, so my apologies. On to the opinions.
Over the last two weeks, the Court of Appeals issued four published opinions, and each has some aspect that should pique the interest of more than a few of you. Here is a preview so that you can decide where to start. There are three criminal appeals and one appeal from the Workers’ Compensation Commission. I put the WCC opinion last, but attorneys may want to skip ahead to that one if they are at all interested in learning how not to lose a $50,000 fee (hint, don’t wait five years to ask to get paid). The three criminal cases involve vastly different issues – Child Abuse, Blood Spatters, and a defendant who wanted to be evaluated for potential sexual deviancy.
Christina M. Mollenhauer v. Commonwealth of Virginia involves a charge of child cruelty under Code § 40.1-103. [Editor’s note: Because I have been consulted on a possible appeal to the Supreme Court of Virginia in a related appeal, the analysis of this case has been removed from the blog; it will be restored when the appeal is concluded.]
Lemar Jason McDaniel, Jr v. Commonwealth of Virginia involves a topic more usually confined to television drama and Agatha Christie novels – blood spatter evidence. McDaniel was convicted of second-degree murder of Devin Harrison with whom McDaniel was involved in a relationship that ended badly. [Editor’s note: The Court of Appeals chose to classify this relationship as “romantic,” but the evidence suggests that it was more in the nature of an abusive and controlling relationship; court’s need to use greater care in choosing such descriptors.] The precise details of Harrison’s death are not known, though the evidence suggests that she died in the home she shared with McDaniel, who then sought to cover up the crime in an unsuccessful effort to clean blood from the furniture, floors and walls using bleach. Further attempts to hide the crime involved text messages sent from Harrison’s phone to her mother in the days following her disappearance.
Police subsequently found Harrison’s body in a trash can several houses away from her own along with documents related to various criminal charges against McDaniel. Police later went to McDaniel’s home (which he had maintained separate from the residence he shared with Harrison), and he consented to them conducting a search which recovered shoes with apparent bloodstains. McDaniel did several other foolish things at this point, lying to police by saying he did not know Harrison was missing (he had been with the parents when they discovered Harrison was not at home and her house had been ransacked and partially cleaned) and claiming to have communicated with her online in the days following her disappearance during which she threatened to harm herself (as McDaniel undoubtedly knew that Harrison’s body had been stuffed in a trash can, he should have realized that people who commit suicide don’t usually dispose of their own bodies)..
We pause here to address that last observation that McDaniel behaved foolishly. People who commit crimes are rarely consummate criminals of the suave Raffles variety or the harden Al Capone variety. They are usually people who have done something incredibly stupid and are entirely out of their depth. As a result, they do incredibly foolish things – like lying to the police. There is only one thing worse than lying to the police when you are guilty, and that is lying to the police when you are innocent. If you are not familiar with Prof. James Lewes’ lecture (and subsequent book) “You have the right to remain innocent,” please Google it after you finish reading this post.
As you have probably discerned, McDaniel was arrested and charged with Harrison’s murder. At his trial, the Commonwealth sought to introduce expert testimony from Angie Witt, a special agent with the Virginia Department of State Police. Witt was trained in blood spatter analysis and was prepared to offer an opinion based on photographs of the crime scene and of McDaniel’s shoes. McDaniel sought to exclude her testimony on the ground that she had not demonstrated sufficient expertise in this area and that even if she had such expertise, she could not render a valid opinion based on photographic evidence.
The first issue is easily disposed of. McDaniel based his argument solely on expert qualifications for blood spatter analysis in a 2009 publication by the National Research Council. Although the NRC is a quasi-governmental organization, it has no standing with respect to qualification of expert forensic witnesses. Moreover, the determination of whether a witness has the necessary background, training, and experience to provide expert testimony is left almost entirely to the discretion of the court. Here, there was considerable evidence that Witt had not only received specialized training in blood spatter analysis but had trained others and had testified in many trials. This was sufficient for the trial court to certify her as an expert, and the Court of Appeals will not gainsay that determination.
The more interesting issue is whether Witt’s opinion carried any validity when it was based on her review of photographs taken of the crime scene, not her personal knowledge of the scene. Witt testified that of the 200 cases she had been consulted on blood spatter evidence issues she had relied solely on photographic evidence in virtually all of them, but she also testified that it was “always helpful” to see the crime scene firsthand. This seems a contradiction because it suggests that something that is “always helpful” is also rarely done. Nonetheless the Court of Appeals concludes that because Witt’s expertise was derived primarily from the study of photographs of blood spatters, her reliance on photographs in this case was not improper.
Finally, McDaniel contended that because Witt had consulted with the Commonwealth’s Attorney about the photographs and testified as to what she had been told, her opinion was based on hearsay which was not in evidence. The Court of Appeals ruled that because McDaniel did not object to the admission of the photographs (or, more precisely, a particular photograph of the blood spatter on McDaniel’s shoe), any question regarding the accuracy of what the photograph depicted, and thus of Witt’s opinion thereon, was a matter for the jury to determine.
Justin Blake Cox v. Commonwealth of Virginia involves a plea of nolo contendere to several sexual offenses involving a minor. Because a nolo contendere plea, or plea of no contest, effectively operates as a waiver of the right of appeal – the plea is functionally the equivalent of a guilty plea, which also waives the right of appeal, except that the defendant is only conceding that the evidence is sufficient to prove his guilt, not the he is actually guilty – it probably is a surprise to some that this case not only was granted a writ, but resulted in a published opinion. If that were all you knew about the case, you would probably be thinking that a reversal of the conviction is awaiting Mr. Cox at the end of the opinion because he must have found some way around the waiver and had a really good argument as to why his plea was invalid. I wouldn’t blame you for thinking that, because typically an invaid plea is thought to be the only basis for setting aside a guilty or nolo plea. .
Most attorneys will generally refer to the waiver of appeal by a guilty or nolo plea as a hard and fast rule. That’s because you can avoid the waiver by entering an Alford plea which preserves the right of appeal – though many Commonwealth’s Attorneys will not offer a plea deal if the plea is an Alford plea. So, they reason, no Alford means no appeal – and they are right with respect to an appeal that challenges the sufficiency of the evidence or any pre-trial error. However, the waiver does not apply to errors alleged to have occurred after the plea is entered. Typically, these fall into two categories: 1) failure of the court to set aside the plea and, 2) an act or omission of the court in sentencing that is contrary to the law. [Editor’s note: There is a third category that rears its very ugly head on occasion, and that is when a defendant enters a plea and is convicted of a crime that doesn’t exist. It’s actually a little disheartening how often this happens – particularly because it can only result when a prosecutor, a defense attorney, and a judge all fail to recognize that what the defendant is accused of does not violate the law.]
In Cox’s case, it was an alleged omission by the court after accepting the plea, but prior to sentencing that was subject to challenge on appeal despite the waiver. Cox’s plea agreement got rid of the most serious charges, which involved his sexual relationship with his teenage niece who was 20 years younger than Cox, in exchange for his nolo plea to two lesser felony sex offenses and two misdemeanors. Sentencing was left to the court’s discretion, possibly with a recommendation from the Commonwealth. The court sentenced Cox to a total of 102 years for these offenses, suspending 80 years (the opinion does not make clear whether the two felony sentences and the misdemeanor sentences were to run consecutively or concurrently, but other sources confirm it was the former). This was about six years above the sentencing guidelines.
Before the court entered the written sentencing order, Cox filed a motion to vacate the sentence, asserting that the court was required under Code § 19.2-301 to obtain a psychosexual evaluation of a defendant charged with sex offenses before imposing sentence. Presumably, Cox believed that such a report would show that he was not a sexual predator and, thus, convince the court to reduce his sentence. [Editor’s note: This seems a huge risk, given that a report that Cox had predatory tendencies would probably have resulted in the court deciding that 102 years was just about the right amount of time for Cox to serve.]
The trial court ruled that the post-conviction evaluation was not required unless requested by one of the parties prior to the sentencing hearing; it can also be ordered by the court sua sponte, but neither of those things happened. The court concluded that Cox’s motion, even if interpreted as a request for an evaluation, was too late despite the court not having entered the sentencing order.
The Court of Appeals affirms. As is often the case when a statute is being interpreted, the appellant wants the courts to focus on a particular word or phrase rather than the entire statutory scheme which is its context. The courts response to such arguments is often called the “read on rule.” Simply put, neither a word or phrase in a statute is to be read in isolation and similarly statutes are “to be read in pari materia with other statutes that address the same subject matter.” [In pari materia is Latin for “upon the same subject” so the typical use of the term is redundant.]
In this case, the Court concludes that Cox was focusing on a single sentence, and more particularly a single word, which said that the trial court “must” order an evaluation. Under the read-on rule, however, it is clear that the court “must” do so only if a proper request is made or the court otherwise believes that an evaluation will be beneficial to its determination of the sentence, and as no such request was made before the sentencing hearing, the court was not required to do anything. While the court could have acceded to Cox’s request because the matter was still under its jurisdiction, it had complete discretion as to whether it would do so.
Because I know a little about such evaluations (quite a lot actually) from reviewing Sexually Violent Predator cases, I can say that Cox probably dodged a bullet here. One of the key factors in determining whether a defendant presents a future risk as a sexual predator is whether he accepts responsibility for his prior acts of sexual violence. As Cox’s plea of nolo contendere suggest that he would not do so, there is a strong possibility that the evaluator would err on the side of caution and opine that there was at least of possibility that Cox was a predator. In which case, perhaps the judge would not have imposed the whole 102 years – but I am betting he would have at least doubled the 22 years Cox is presently facing, figuring that he would be less of a threat if released at age 80 rather than age 58.
Mayes Marks, Jr v. Henrico Doctors’ Hospital/HCA is an appeal from a denial of attorney’s fees in a Workers’ Compensation Case. Like several other opinions from the Court of Appeals in recent months involving claims made to the Commission, this one raises the question “What the H*** took you so long?” Readers may recall that two prior cases summarized in this space, Atlantic Orthopaedic Specialists v. City of Portsmouth and Summit Pharmacy Inc. v. Costco Wholesale (R) and Costco Wholesale Corporation both involved the failure to request reimbursement from a self-insured employer for services covered under a compensation award until well past the statute of limitations – and in both cases the Court of Appeals found that the unexcused delay in seeking payment was, well, not excusable.
Marks represented a provider, not the claimant, in this matter – the hospital where the surgery was performed. It is not clear why the employer was not willing to pay the hospital bill, which was just over $200,000, as the award for the claimant was not disputed, but it refused to pay.
When a payment is owed to a provider under an award from the Commission, the provider must go to the Commission to seek relief. Marks got the Commission to order the employer to pay the hospital and, thus, was entitled to recover his fees from that award – 25% of the bill, which one assumes was a contractual agreement between Marks and the hospital. All of this happened within the time constraints that sunk the providers in Atlantic Orthopaedic and Summit Pharmacy, so what’s the problem?
Well, remember that we just learned that a provider must go to the Commission to enforce an order and recover for services rendered to a claimant? That is also true of an attorney who wants to collect a fee for work before the Commission. One would think that because the agreement between Marks and the Hospital was a contract, he could sue in the circuit court – but the Commission typically includes provision for attorney’s fees awards in its orders, so it is the Commission that has the power to enforce payment of the fee as part of its order. [Editor’s note: I doubt a circuit court would refuse to entertain a breach of contract action under these circumstances, even assuming that the provider’s counsel would thing to raise the issue of the Commission’s jurisdiction. However, because Marks went to the Commission it seems likely that even if he could try again in the circuit court, he would be barred by res judicata. In fact, as we shall see, Marks may have chosen the Commission as his form quite deliberately because of another potential stumbling block to suing for breach of contract . . . the five year statute of limitations on such actions.]
For reasons not explained in the opinion (probably because the explanation is reminiscent of Steve Martin’s advice on how to avoid paying taxes; he suggested that when the IRS came calling you should just say, “I forgot.”), Marks did not make any effort to obtains his fee from the hospital for two years after the award – and then sent the request by email . . . to the wrong email address . . . three times. Marks asserted that he did not receive any “bounce back notices,” but by the same token he did not seem overly concerned that none of his emails received a reply and no check appeared in the mail.
In fact, his level of concern was so limited that he did nothing more for another three years, when he finally went to the Commission to enforce the order that included his fee. Now most of you are probably wondering how this case even made it to the Court of Appeals, as waiting five years to pursue a claim for fees before the Commission seems to fall into the same category as providers who wait years to seek payment – it is in fact longer than the claimants in Atlantic Orthopaedic and Summit Pharmacy waited. But, as it turns out, the Deputy Commissioner who reviewed Marks’ claim concluded that unlike the claims for services rendered to a claimant, the limitations period for seeking recovery under an award by a provider did not apply to a claim for attorney’s fees for representing the provider. The Commission’s rule on this question is Rule 6.2(A)(3), and it does seem to be a little vague on just when an attorney should seek to collect his fees.
The employer appealed to the Commission, which reversed in a 2-1 decision. The majority ruled that there was a “reasonable time” requirement to seek fees under an award and that Marks had not actually conveyed a claim to the Hospital (because of the misdirected emails) until it was served with the petition to the Commission, and that was just not within a reasonable time. The dissent concluded that the Commission did not have the power to imply a reasonable time limitation where the rule did not contain any basis for doing so – requiring only “reasonable notice.”
The Court of Appeals resolves this case on the well-worn principle that the Commission, or any administrative body, is in the best position to interpret its own rules and that if two of the Commissioners thought Rule 6.2(A)(3) was subject to a reasonable time limitation, that was good enough for the Court.
Now this is an interesting case because it seems to be that “reasonable notice” must mean something more than just using good penmanship when filing out the request to be paid. But I am not sure that it necessarily means “notice in a reasonable time,” or at least not just that. What, for example, would be reasonable notice for a fee of just a few hundred dollars as opposed to the $50,000 Marks was entitled to? Does it make a difference that the hospital could have easily paid (presumably), whereas some other claimant might find payment of that amount years afterwards to be a hardship. Another curious aspect of the rule is that it also required the parties to make a “reasonable effort to resolve the claim” before going to the Commission, which did not happen here and might have been a further stumbling block to Marks getting his payday..