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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

The NCAA will have its Final Four in a few weeks . . . here is the Appellate Lawyer's Blog's Final Four of the Opinions Backlog

March 12, 2024 saw four published opinions from the Court of Appeals, and as no published opinions where handed down this week, we have reached the Final Four opinions of Operation Get Caught Up.

Douglas Leon Miner v. Commonwealth of Virginia (March 12, 2024) involves a conviction for making a materially false statement on a criminal background check when making a firearms purchase. Miner entered into a deferred disposition plea on a charge of burglary. While the deferral was in place, Miner tried to purchase a rifle and in completing the background check responded "no" to the question “Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year?” When the background check revealed the indictment for burglary, police were notified and Miner found himself back in court.

Miner maintained that he thought the deferral of the felony charge meant that it had been reduced to a misdemeanor. The Commonwealth introduced the plea agreement, which showed that the charge would not be reduced until Miner had completed the terms of the deferral. A copy of the indictment was included with the plea agreement.

Miner moved to strike the evidence on the ground that the evidence failed to prove that he was under indictment because the copy attached to the plea agreement was not certified. The circuit court overruled the motion to strike and convicted Miner.

The Court of Appeals, Judge Fulton joined by Chief Judge Decker and Judge Ortiz, affirms the conviction. Miner reasserts the "not a certified copy" argument, but the Court finds that the copy was part of an exhibit admitted without objection. In any case, I am not sure that proof that Miner was under indictment required the admission of a copy of the indictment, certified or not. People don't usually enter into plea agreements for felonies for which they have not been indicted, and Miner didn't contest the fact of his plea, only his understanding of what it meant in terms of his status.

Miner had two other arguments, both based on faulty premises. The first argued that making a false statement on a background check form with respect to being charged with a felony was not intended to be criminalized. Unfortunately, he relied on case law that distinguished between being "charged" for a felony and being "indicted." The form says indicted, so if the grand jury has not yet returned a true bill, an applicant can truthfully answer "no," but Miner had been indicted.

Miner next argued that he had obtained advice from a "government official" that he was in fact able to legally purchase a firearm. Unfortunately, that official was his lawyer, who did not work for the government. While we attorneys are often called "officers of the court," we are not government officials "charged by law with responsibility for defining the permissible conduct with respect to the offense at issue."

Christopher O. Parrish v. Mikeya Vance (March 12, 2024) is an appeal from a little known area of Landlord/Tenant Law -- a "Tenant's Assertion and Complaint." A tenant's assertion is a pleading filed in General District Court asserting that a landlord has failed in the duty of providing a habitable living space. The tenant has to give the landlord notice of the problem and 30 days to repair (which seems awfully long given that the defect must "constitute a fire hazard or serious threat to the life, health or safety of occupants"). If the landlord does not remedy the situation, the tenant's assertion is filed with the court and all rent payments normally due to the landlord are paid to the clerk of the court had held in escrow pending resolution of the suit.

The defect in this case was an infestation of fleas. If you think that this is a minor inconvenience, I suggest you study up on the Black Death. Parrish, the landlord, defended the suit on the ground that the lease made flea eradication the duty of the tenant. At the beginning of the lease, Parrish told Vance that he would pay for the initial treatment, which he apparently did, but the exterminator advised Vance that it would take several treatments to assure that the fleas would not repopulate.

Fast forward several months and the fleas are still in the house. Vance filed her tenant's assertion seeking to terminate the lease and recoup all rents paid. Parrish argued that the fleas were actually brought to the home by Vance and she was thus responsible for theior abatement. Neither the General District Court or the Circuit Court were amenable to this argument, finding that the Virginia Residential Landlord/Tenant Act makes the provision of a habitable living space a non-delegable duty.

The Court of Appeals, Judge Causey joined by Judges Raphael and Senior Judge Clements, affirm this judgment. Parrish also raised an objection to the admission of expert testimony, but this issue falls under an "opening the door" theory because Parrish introduced substantially the same evidence.

Parrish's final argument (apart for sufficiency of the evidence, which falls to the standard of review favoring Vance), was that the circuit court violated due process by not allowing him to "present his whole case." However, when he rested his case he advised the judge "That's all." He only contended that he had not been allowed to fully develop his case in a post-judgment motion for reconsideration, and the Court rules that was not timely.

Jamar Paxton v. Commonwealth of Virginia (March 12, 2024) is a 2-1-0 decision reversing a conviction for second degree murder. The Commonwealth has not yet sought a rehearing or noted an appeal to the Supreme Court, but I suspect some action will be taken before the 14 or 30 days deadlines.

The sole issue was whether the circuit court erred in not suppressing incriminating statements made by Paxton, and whether that error was rendered harmless wen Paxton chose to testify about the confession in order to rebut its implication. It is not disputed that Paxton was advised of his Miranda rights and after police accused him of the murder of his girlfriend he said, "I don't wanna talk no more." The officer then said Paxton would be charged and the following exchange took place:

Paxton: Sir.

Officer: Yes.

Paxton: What?

Officer: Mmm-hmm, unless you can come up with a reasonable explanation, . . .

Paxton: Sir, what else do you wanna know? I’m tellin[g] you everything.

Officer: I wanna hear the truth.

The interrogation resumed and Paxton eventually admitted shooting the victim, claiming self-defense. The issue is whether Paxton or the police "re-initiated" the interrogation.

Paxton's motion to suppress his statement was denied, and he hen testified at trial about the substance of that statement, setting up this appeal and the decision reversing and remanding by Senior Judge Petty, who is joined by Judge Malveaux, and Judge Raphael who concurs in the judgment, but writes separately. The issue that the panel has a slight disagreement on is why Paxton's testimony does not constitute a waiver of his Miranda claim. The difficulty stems from case law from the Court of Appeals that appears to conflict with precedent from the US and Virginia Supreme Courts. The debate between the majority and concurrence will be of interest to 5th Amendment scholars, but the result is the same -- if a defendant's Miranda rights are violated, the Commonwealth cannot rely on the illegally obtained evidence to argue that the defendant's testimony seeking to rebut that evidence was "voluntary" and thus waive the objection.

Shanta Orlando Hubbard, a/k/a Shawn Hubbard v. Commonwealth of Virginia (March 12, 2024) results in a reversal upon a finding that a search incident to a traffic stop. Judge Lorish, joined by Judge Ortiz and Sr. Judge Petty, finds that the Commonwealth failed to prove that exigent circumstances warranted an invasive search rather than holding the suspect and obtaining a warrant.

The facts would be comical if not for the constitutional issue of a warrantless search. Hubbard was stopped for an unspecified traffic infraction and was subjected to a patdown search after officers learned that Hubbard had agreed to be subject to random searches under a prior plea agreement. During this patdown, an officer felt a "hard object" in Hubbard's buttocks. When he reached int Hubbard shorts, they fell to the ground, leaving Hubbard standing in his underwear. The officer then attempted to remove the object, but Hubbard clenched his buttocks together and the officer could not remove the object. The officer told Hubbard he would be taken before a magistrate and searched there.

When Hubbard attempted to then release the object, the officer stated that he feared Hubbard would stomp the object in an effort to destroy it and, if the object contained fentanyl, it might become aerosolized and present a danger. The officers then resumed their efforts to remove the object, which turned out to be a plastic bag with 87 smaller bags of crack and power cocaine.

The circuit court denied Hubbard's motion to suppress, finding that the prior agreement waived Hubbard's right to object to the search, even an invasive body cavity search. The court further found that even if the waiver was not considered, exigent circumstances permitted the warrantless search.

The Court of Appeals first finds that plea agreement waivers do not extend to body cavity searches -- this is already established in prior precedent which the circuit court plainly should have known. This means that the burden was on the Commonwealth to show that exigent circumstances existed to warrant the invasive search.

The Court finds that the "theoretical possibility" that object might have been fentanyl and might have become aerosolized was not sufficient to warrant resuming the invaisive body cavity search. The Court also finds that the "buffet of hypothetical exigencies" offered by the Commonwealth did not rise to the level for warranting the search.

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