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

Two Decisions from the Court of Appeals Today are Hard to Reconcile

On November 22, 2022, your humble and obedient reported on the unpublished decision in Maust v. Commonwealth, 2-1 reversal of a criminal conviction. Today, the Court publishes the en banc decision affirming the judgment, with only the two judges who reversed in the panel dissenting. Judge Malveaux, the original dissenter, is joined by Chief Judge Decker, and Judges Humphreys, Beales, Huff, O’Brien, AtLee, Athey, Fulton, Ortiz, Friedman, Raphael, Lorish, Callins and White, while Judge Chaney joined by Judge Causey dissents. The issue that separates that two sides is sufficiency of the evidence to prove guilt beyond a reasonable doubt. What makes this result interesting is that in an unpublished panel decision Judge Causey is joined by Judges O'Brien and Friedman in overturning another conviction finding the evidence was insufficient.

In Maust, the issue was whether the defendant could be found guilty of distribution of a controlled substance in violation of Code § 18.2-248 where the evidence was provided by an informant conducting a controlled buy. The problem was that while the officer seeting up the buy "did not recall" the informant's girlfriend accompanying him to the buy -- she was clearly with him in his car when he arrived. The officer also "lost sight" of the informant for a time. Although the audio has innocuous conversation between Maust, another woman, and the informant, but no express mention of purchasing drugs. A subsequent search discovered numerous pills in prescription bottles and cash including most of the case supplied to the informant.

In the original summary, I expressed surprise that there was apparently no motion to suppress the evidence from the controlled buy. Neither the original opinion and dissent nor today's en banc opinion and dissent say expressly that there was not, but had there been, Maust would almost have certainly challenged the failure to supress -- and I think might have prevailed. I am particular disturbed by the lack of evidence that the informant's girlfriend was search by police and allowed to accompany him to the controlled buy.

What happened instead was that Maust challenged the sufficiency of the evidence to prove her guilt beyond a reasonable doubt against her alternative theory that the informant obtained the drugs from his girlfriend and that any of the marked bills could in Maust's possession were in payment of a debt. In the panel, and again today en banc, the question becomes whether Maust's theory of innocence was enough to move the needle below the reasonable doubt standard. The majority concludes that the standard of review gives "the highest degree of appellate deference" to the trial court's fact-finding. The dissent agrees that deference is owed, but not to the point of ignoring the absence of evidence and strained inferences.

The unpublished opinion is Stephen Lamar Garrick v. Commonwealth of Virginia and involves the question of constructive possession. The facts are consistent with the typical constructive possession case involving an automobile. Garrick was "operating" the vehcile by sleeping in it with the engine running. The police searched the vehicle (the opinion gives no details of why they did this or even whether they woke Garrick before doing so) and found a gun and a baggie of white powder that turned out to be heroin also with two receipts for maintenance of the gar made out in Garrick's name in the glove compartment. Garrick said that his mother owned the car and that he drove it about three days a week.

Garrick's motion to suppress the evidence was denied and at trial his argument that there was insufficient evidence that he was aware of the character and presence of the contraband found not joy from the trial court. He appealed both decisions, but the Court decides that it need not consider the suppression issue because in its view the trial court was just plain wrong to think that Garrick could be charged with knowledge of the drugs in the glove box. The Court finds that no action Garrick took when the police conducted the search gave any indication that he was concerned about what they might find. In other words, Garrick kept his cool -- no furtive movements or jitters -- so the judge could not infer that Garrick was harboring a guilty conscience.

I have a filling that even without a dissent, the Commonwealth is going to challenge this decision -- and I am going to go one step further and say that the Court of Appeals en banc or Supreme Court will give it another look. I am having a hard time reconciling Garrick and Maust. Had Garrick been reversed on the suppression -- which granted we don't know what the basis would have been -- I would not have been surprised unless Garrick consented. But with two of the panel members in Garrick having just said en banc that the trial court is due "the highest degree of appellate deference" in its fact-finding, I am absolutely gobsmacked that they are letting Garrick off.

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