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

Why a Virginia Court of Appeals Blog?

Updated: Nov 22, 2022

The first question that will undoubtedly come to mind for those who have stumbled across (or, one may dare to hope, deliberately come to read) this blog is “Why a Court of Appeals Blog?  If you are an appellate lawyer practicing in both of Virginia’s appellate courts, why limit yourself to just the Court of Appeals?”  The answer is simple – one does not reinvent the wheel, and Steve Emmert already has a Blog which more than adequately – I should say superlatively – covers the Supreme Court of Virginia.  I have no desire to compete with Steve in that arena.

OTOH, while Steve occasionally will make reference to the opinions and actions of other courts – both the Court of Appeals of Virginia and the federal Fourth Circuit Court of Appeals as well as that other Supreme Court on the north bank of the Potomac – and while there are a few other blogs by Virginia’s appellate attorneys (I note in particular Jay O’Keeffe’s Virginia Appellate Law) and quite a few more on specialized topics, there are none that are devoted exclusively to the opinions of the Court of Appeals.  Thus, there seemed to be a niche that needed filling.

This Blog will primarily report on the published opinions of the CAV, with occasional mention of an unpublished opinion as well.  From time to time, there will be other topics covered – statistics, personalities, and the like.  But mostly it will be a place where I can wax philosophical on the CAV’s interpretations of Virginia law.

I will officially begin reviewing the CAV’s opinions with the first release of the New Year – which may or may not occur on January 5 (Tuesdays being the CAV’s usual day to release opinions).  [Edit: it didn’t, but opinions were released the subsequent Tuesday and have been summarized in a subsequent post.]  However, I will also look back to opinions released in 2020 or before as time permits.  Indeed, I shall do so in this first post; moreover, the opinion I wish to highlight is an unpublished opinion, so it may have passed under the radar of many.  Yet this opinion, McMillan v. Commonwealth, Record No. 0557-20-1 (December 22, 2020) is worthy of a few lines if only as a cautionary tale to those who practice in the CAV (or any other court, for that matter).  The moral of that tale is don’t cut corners.

McMillan involves a run-of-the-mill DUI stop.  Police found McMillan in his vehicle with the engine running slumped over the steering wheel and apparently deep in the arms of Morpheus.  Under these circumstances, police are perfectly justified in performing a community caretaker check.  All indications were that McMillan was probably intoxicated, but he refused to take a breathalyzer test, was charged with both DUI and refusal, second offense and was convicted of the latter charge and acquitted of the former.  So far there is nothing that would pique the interest of the CAV.  Except that McMillan was also charged with driving after forfeiture of license, third offense in ten years, in violation of Code § 18.2-272(A) which, unlike DUI, requires proof of actual operation of a vehicle on a highway of the Commonwealth.  Defense attorneys know that this is a significant point when, as here, the officers did not observe the defendant actually operating the vehicle on the road.

At trial, the Commonwealth sought to prove that McMillan had admitted to having driven to the parking lot by playing “body cam” footage in which McMillan makes some reference to having “been” on Moorestown Road, a nearby thoroughfare.  The Commonwealth contended that this was an admission that McMillan drove from Moorestown Road to the parking lot; the defense argued that it established only that McMillan himself was on Moorestown Road, but it proved nothing about where the vehicle was.  Thus, the evidence did not exclude the reasonable hypothesis that McMillan walked (or more likely stumbled) from wherever he had been partaking of adult beverages to his parked vehicle and, recognizing that he was not in a condition to drive, turned on the engine so that he could warm the vehicle while he slept it off.  To those uninitiated in the ways of DUI cases, merely starting the vehicles engine is proof of “operation” of the vehicle.

The circuit court was having none of this “reasonable hypothesis of innocence,” overruling McMillan’s motion to strike without comment at the close of the Commonwealth’s case and again, after McMillan declined to testify or offer evidence in his own defense, in a summation of 101 words (the reason for giving the precise word count shall be made clear anon).  Thereafter, the court convicted McMillan and sentenced him to two-years imprisonment with one year suspended and a concurrent sentence of three months incarceration for the refusal, third offense.

One great frustration of analyzing an appellate opinion is that generally you don’t have access to the record – either the actual record in the trial court or the designated record available to the appellate court.  While it is possible to access these, it is not an easy process, at least not yet in this Commonwealth.  Accordingly, we can only speculate about the next several steps in the process.  For example, we know that McMillan had appointed counsel at trial and that after sentencing a new order appointing counsel was entered.  The possible reasons that this was done in ascending order of likelihood are: 1) the court was entering an order confirming that trial counsel would represent McMillan on appeal (though this is not necessary, as it is normally the case); 2) trial counsel sought to withdraw because s/he did not believe s/he was competent to pursue an appeal or was conflicted from doing so because McMillan had filed an ethics complaint against him/her; or 3) McMillan, dissatisfied with his trial counsel’s performance, requested appointment of new counsel.

Option three is most likely, and, IMHO, McMillan did his trial counsel a great disservice – the counsel’s performance at trial by all appearances was more than competent – consider first that s/he was able to secure an acquittal of the DUI charge.  More to the point, however, the issue whether the evidence showed that McMillan drove on a highway of the Commonwealth was fairly thin – in fact had I been the trial judge I likely would have agreed that the evidence did not exclude the possibility that events occurred exactly as defense counsel had suggested and struck the Code § 18.2-272(A) charge.  It is certainly not defense counsel’s fault that this particular circuit judge did not see things that way.

At any rate, McMillan’s new counsel noted an appeal and filed a petition in the Court of Appeals.  It is at this point that things get interesting, because an appeal was granted following a one-judge review.  If you know much about the CAV, you probably know that unlike civil and administrative appeals within the Court’s jurisdiction, criminal appeals are not appeals of right.  Rather, as in the Supreme Court, a defendant must first seek a writ of error by petition.  Once the appeal is procedurally perfected (a process overseen by the Clerk of the Court), the petition is then reviewed by – and this you may not know – a staff attorney, or very often a law-student extern supervised by a staff attorney.  The staff attorney is supposed to do three things: first, s/he determines that there are no procedural bars to the appeal; second, s/he determines whether there is any merit to the appeal; and third, s/he drafts an order with the recommended disposition.

The staff attorney’s recommendation is presented to a judge of the CAV who can accept, reject, or modify the order (and in all candor, if the original work was done by an extern, the Chief Staff Attorney may have already modified the recommendation –  law student interns see all kinds of merit issues that more experienced hands know are non-starters).  If the appeal is refused, the defendant can request a review by a three-judge panel with oral argument.  As an appeal was granted, that did not happen in this case.

So, at last, we reach the actual appeal which resulted in the unpublished opinion.  Before getting to the main holding of the appeal and the point of this essay, let us take a brief moment to consider this passage in a footnote from the recitation of the facts:

The [body cam] video contained the only admission by McMillan as to how he arrived in the parking lot. The parties apparently disagreed as to what was said on the video, and the trial court relied on the video in convicting McMillan. However, because the Commonwealth neglected to introduce the recording into evidence, it is not part of the record, and we are unable to consider it in our review. We will leave for another day the determination of whose responsibility it is to ensure that a recording played during trial is made part of the record.

McMillan, slip op. at 2 n.2 (emphasis added).

Lacking access to the record, we cannot know when this deficit was first noted by the Court.  It should have been picked up by the defense – or certainly by the Commonwealth when (if) a brief in opposition to the petition was filed.  Had it been noted before the petition was filed – perhaps even before the record was transferred from the circuit court to the Court of Appeals – it likely would have been possible to correct this omission by an order nunc pro tunc.  The record plainly showed that the video had been played in court and that the court had relied upon it in making its judgment.  The oversite in not having it admitted to the record was clearly a ministerial, not discretionary, act and the very sort of thing that nunc pro tunc is intended to accomplish.  Whether the video could have been added to the record after it had been received by the Court of Appeals and the petition was filed is a somewhat more complicated issue, but it is at least conceivable that the Court would have considered issuing a writ of certiorari or possibly a writ of coram nobis.  We also do not know if the parties were made aware of this issue before oral argument, at oral argument, or only when the opinion was released.

In any case, the video was not part of the record.  Now, some may wonder why this was not itself fatal to the appeal, or for that matter why the Court specifically noted that it was not going to address whose burden it had been to have the video admitted.  This is a fascinating issue, because while it is well-established that the party (typically, but not always, the appellant) seeking to call an appellate court’s attention to some element of the trial record has the burden to make certain that it is made a part of the record on appeal, the question of which party has the initial burden to see that it is made a part of the record at trial is less certain.

The general rule is that the party who first relies on the evidence or exhibit should move its admission; but if formal admission is not sought by the proponent, does the opponent have a duty to do so?  Like most legal questions, the answer is “it depends.”  If the opponent intends to rely upon the evidence, which arguably in this case it did, it may very well be that the opponent has a concurrent duty to see that the evidence is received by the court as evidence, and not merely for identification.  This is certainly the case when evidence is admitted for a limited purpose and an opponent subsequently wishes to rely upon it for a different or more general purpose.  These, as the Court indicated, are questions for another day.

So why was the lack of a complete record not fatal to the appeal?  The Court does not say so expressly, but it presumably was of opinion that the issue was not whether the evidence was sufficient to prove that McMillan operated a vehicle on a highway of the Commonwealth in contravention of Code § 18.2-272(A), but rather whether the evidence was sufficient to prove this beyond a reasonable doubt, excluding every reasonable hypothesis if innocence.  Was the body cam video necessary evidence to decide this issue?  Arguably not.

Now what follows is pure speculation, because, as I said, the Court did not express why it chose not to dismiss the appeal for lack of a complete record, but the evidence that was in the record showed that McMillan was found at the wheel of a running vehicle in a parking lot.  Excluding the ambiguous statement from the body cam video, does this evidence without more satisfy the Commonwealth’s burden of going forward at the close of its case?

It does.  Recall that a motion to strike at the conclusion of the Commonwealth’s evidence requires the court to accept that evidence in the light most favorable to the Commonwealth including all reasonable inferences to be drawn therefrom.  While I know a great many defense attorneys who would dispute the point, the fact is that being found at the wheel of a running vehicle gives rise to a reasonable inference that the vehicle has been recently driven, and, as people are not known to drive around parking lots to no purpose, it is an equally reasonable inference that a running vehicle found in a parking lot was driven there by the occupant of the driver’s seat.

Now, there are those who will protest that the burden of going forward with the evidence is not the same as the ultimate burden of proof – and they would be quite correct.  How then, they ask, did this case survive the motion to strike at the close of all the evidence?  The answer is that where, as here, the defendant elects not to put on a case, the trial court does not afford the defense any benefit of the doubt as to the Commonwealth’s evidence after the defense rests, and if it was sufficient to survive the first motion to strike, ipso facto, it is sufficient to survive the second.

“So,” I hear you cry, “why the fuss? — Obviously the circuit court must have convicted upon finding that the Commonwealth meet its burden of proof (else there would be no appeal) and given the deference to a court sitting as trier of fact, sufficient is as sufficient does, right?”  Well, in a word, no.  Which brings us back to the reason the Court probably didn’t kick the appeal for lack of a complete record.  Sufficiency of the evidence in rendering judgment is subject to the same standard as it is on appeal — it must support a finding of guilt beyond a reasonable doubt, excluding every reasonable hypothesis of innocence.  In short, the absence of the body cam evidence was not essential to determining this, because everyone agreed that it was the defendant’s statement about having “been on Morristown Road” that the circuit court relied on in inferring that McMillan had driven to the parking lot.  So, I infer that the argument at trial had been that there was an equally reasonable inference that he had walked from Morristown Road to where the car was parked, and that someone else had driven it there previously.  (Remember, it does McMillan no good if the evidence establishes he drove the vehicle to the parking lot at any point, drunk or sober).

Now, this creates one of those “Rube Goldberg” arguments about how far you have to go to find that a hypothesis of innocence is reasonable and does not merely “spring from the imagination of the defendant.”  Case v. Commonwealth, 63 Va. App. 14, 23, 753 S.E.2d 860 (2014).  Since the officers did not see McMillan actually drive the car, the issue is how does one go about proving that the car arrived at the parking lot under McMillan’s control rather than that of some other person?  The only thing in favor of that view is that McMillan was found alone in the vehicle in possession of the key.  Is that sufficient to create a presumption that he drove the vehicle there?  Yes.  Is it sufficient to exclude the possibility that someone else could have driven the vehicle there?  I would argue that it is not — though the circuit court judge obviously thought it was.  Which sets up what the argument on appeal ought to have been.

Herewith follows the sum total of that argument as presented in the opening brief as quoted by the Court of Appeals in its opinion:

It is against this standard that the Appellant, Gregory Lynn McMillan argues that the trial court erred in finding the evidence sufficient to find him guilty of driving after forfeiture of license, 3rd or subsequent offense within 10 years, in violation of §18.2-272 of the Code of Virginia. Reynolds v. Commonwealth, 30 Va. App. 153, 515 S.E.2d 808 (1999). Appellant argues that there was no evidence before the Court that he drove on the highway with his vehicle. This was a circumstantial case, and the trial court did not exclude every reasonable hypothesis of innocence as to how the Appellant came to be in a vehicle in a private hotel parking lot. The Appellant could have been towed there or another person could have driven the vehicle to that location. Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983).

McMillan, slip op. at 3.

Remember I said the judge’s 101-word summation was relevant — here’s why.  Judges aren’t required to say anything other than to pronounce the verdict — they don’t have to give their reasons for doing so.  Lawyers, on the other hand, are paid to say (and write) things.  So when I see an argument on appeal that is only 18 words longer than the trial judge’s summation, I think perhaps something is amiss.

My favorite quotation from the Rules of the Virginia Supreme Court (pardon a brief aside but given that the official name of the Court is “Supreme Court of Virginia,” it has always bothered me that the rules of the Virginia court system are named as they are – if you happen to know why this is, please drop me a line) is found in subsection j of Rule 1:4, “Brevity is enjoined as the outstanding characteristic of good pleading.”  That few attorneys appreciate the importance of this admonition can be verified by the random selection of any pleading from the simplest motion in any circuit court to the brief of paramount significance in the Supreme Court of Virginia.  Lawyers – even good ones – simply do not know how to write succinctly.

Let me be clear on one point – while the lack of brevity in most pleadings is not necessarily detrimental to your case, merely being brief most certainly can sink your case faster than a lead balloon if you mistake inadequacy for brevity.  Which brings us to the nub of McMillan, a case which demonstrates that it is possible to be brief without being complete and that brevity alone is not a good thing.  It also brings us to my favorite quote from a Virginia appellate court (at least in this context), “We do not deem it our function to comb through the record of this four day trial in order to ferret-out for ourselves the validity of these claims, assisted only by counsel’s conclusory footnote.” Fitzgerald v. Bass, 6 Va. App. 38, 56 n.7 (1988) (en banc).  Bass was authored by Judge Barbara M. Keenan (later to be Justice Keenan and then Judge Keenan of the 4th Circuit), and that pithy footnote initially appeared in her opinion in the case decided by a three-judge panel.

So why does this quote apply to McMillan?  Didn’t he put his theory forward succinctly and support it with citations to the law?  He sure did — it’s just that his citations were to the wrong law — or as the Court of Appeal put it, “McMillan cites—without explanation or pinpoint cites—two cases in support of his sufficiency argument, but neither is persuasive.”  McMillan, slip op. at 4.  They aren’t persuasive for the simple reason that both are cases in which the Court considered a straightforward sufficiency of the evidence argument, not a hypothesis of innocence argument, and affirmed the convictions.  While Reynolds was at least close to being on point — it involved a charge of driving suspended on a restricted license – Coleman is a rape/murder case.  Pardon me while I shout: WHY WOULD YOU CITE A RAPE/MURDER CASE IN A TRAFFIC APPEAL, ESPECIALLY ONE IN WHICH THE DEFENDANT LOST THE APPEAL????????

Thanks, I feel much better.  To make this long blog post short, let’s jump to the chase.  The Court of Appeals found that this argument failed to satisfy the requirement of Rule 5A:20(e) that the appellant’s opening brief contain the principles of law, the argument, and the authorities relating to each question presented.  Id. at 3.  Failure to provide the Court with an adequate argument is a procedural bar to reviewing the merits of the case on the assignment of error — and McMillan had just one.

Now, you may ask me if I agree with the Court of Appeals.  I am shocked to say, “I do.”  Shocked because there probably would have been a time when I would have said, “C’mon! Gimme a break!”  I would have argued that, as slender a reed as it was, there was a sufficient basis for reaching the merits.  So, what has changed?  Have I become jaded after a quarter century or more studying the appellate law?  Have I suddenly turned from a bleeding heart to a heart of stone?  Neither.  It is just that I have come to appreciate the truth of the aphorism that the wheels of justice grind slow, but exceedingly fine.

First, the Court of Appeals could have reached the merits of this case and, even with a proper argument from the appellant, found that the “other driver theory” was a bridge too far (I’m not even going to touch the tow truck theory).  Second, I think this case falls into a category that is abbreviated “GLWYH” by certain members of the appellate bench and bar.  GLWYH stands for “Good Luck with Your Habeas.”

Over the last 20 years or so, the Rules of the Virginia Supreme Court (grrrrr!) have been repeatedly amended to make the job of appellate lawyers easier by eliminating various procedural traps and providing mechanisms to rectify procedural errors, and still a significant percentage of appeals are dismissed without a review on the merits because the appellant’s attorney screwed it up.  It’s not the job of the appellate courts to make up for the failings of the bar to ensure that we have qualified appellate lawyers, or at least competent ones.  It’s cases like McMillan that show we need to do a better job making trial lawyers (and transactional lawyers) understand that having a license to practice law does not make you a capable appellate lawyer — you either need to acquire the skills for yourself or associate an attorney who has them.  Is that a self-serving statement?  You betcha’!  It’s also true.

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