Virginia Court of Appeals 5/25 & 6/01

Okay, who kidnapped our Court of Appeals and replaced them with a group who would take 6 cases, completely reverse 4, partially reverse 1, and only uphold one decision in its entirety? I think that we may need to check the Court's basement for pods.

-----------------------------------

Myers v. Commonwealth - Subject Matter: (1) Standard of Review-Sufficiency of Circumstantial Evidence & (2) Sufficiency of Evidence.



Facts: A truck runs a stop sign. After pursuit by a deputy, the truck stops and the driver flees. The passenger is a paraplegic and remains in the truck. A later search of the truck finds a pistol wrapped in a blanket in a pile of garbage on the floorboard. A later search of the area finds a stolen pistol about 60 feet from where the driver's side door was. No other relevant evidence.



(1) As best I can tell the Commonwealth tried to extend Maryland v. Pringle so that the presence of contraband in a vehicle would not only be sufficient for probable cause to arrest everyone in the vehicle but also sufficient for conviction under beyond a reasonable doubt. The Commonwealth also relies somehow on Hudson v. Commonwealth but, try as I might, I cannot settle on a way which the Commonwealth could have done this which I think would pass the red-face test.



Whatever the Commonwealth was trying to accomplish, the Court of Appeals rebuffs it.



(2) The Court applies Hancock v. Commonwealth and finds that a paraplegic passenger, in somebody else's vehicle, is not in possession of a firearm on the floorboard wrapped in a blanket, under a pile of trash. He is also not in possession of a stolen gun found 60 feet away, on the other side of the vehicle. Not being in possession of the gun he could only be convicted of its theft if he were a principal in the second degree and (assuming but not deciding that the gun had been in the truck) there is "neither proof that the appellant failed to oppose the theft nor proof of other circumstances upon which to find he acted as a principal in the second degree."



Personal Note: It's good to see that someone out there, besides myself, still believes in Hancock. The last time I cited it in court the trial judge told me he wasn't sure Hancock reflected Virginia law. He then refused to apply it.





Nisbet v. Virginia Beach & Strout v. Virginia Beach - Subject: Power of a locality to enforce an ordinance



Note: Both opinions are word for word the same.



A locality cannot use an ordinance to exceed the punishment which is meted out under the Virginia Code. Conviction under the ordinance is reversed.

-- WARNING --

-- Explicit Language Follows --

Allman v. Commonwealth - Subject: Whether calling someone a "pussy" qualifies as obscene language.



Facts: During a hearing an attorney sends an associate rather than coming to court himself. After the hearing has concluded the other party calls the attorney directly and leaves a message:

The message contained numerous unflattering characterizations of Nabhan, referring to him as "a pussy" or "puss" twenty times, and lasted approximately six minutes. Appellant's repeated use of the word, "pussy," included references to female excretory functions. Appellant indicated his belief that Nabhan must be "squatting to pee" in "the ladies room" of his law firm "[be]cause [appellant believed Nabhan] is such a pussy." Appellant indicated he would send Nabhan's copy of his notice of appeal to the attention of the ladies' room at Nabhan's firm because "I know that's where you hang out all the time, because you are such a big pussy." Appellant said Nabhan should become more masculine and courageous by "grow[ing] a set of balls" and said that, even if Nabhan "[grew] a set of balls," left the ladies' room, and "start[ed] lifting weights," Nabhan would still need twelve to twenty other attorneys to accompany him to oral argument before the Supreme Court.

The test for obscenity applied:

Under [a] "contemporary community standards of sexual candor," [does] the statement, "considered as a whole," [either] (1) "ha[ve] as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse," [or](2) "[go] substantially beyond the customary limits of candor in description or representation of such matters."

Finding: "[T]hough utterly tasteless and rude, [the language] merely served to emphasize appellant's belief in Nabhan's cowardice." Therefore, it was not obscene.



Analysis: With respect, the Court is wrong. The charged offense was (basically) the use of obscene language to coerce, intimidate, or harass." The language used could easily fit under the obscenity prong. However, the Court's error is harmless because there is no way that obscene language in a single call - with the primary purpose of notifying a party of an intent to appeal - violates the second prong (at least not beyond a reasonable doubt). The Court's analysis that the language was meant to convey a belief that Nabhan is a coward would fit better under the second prong.



Breeden v. Commonwealth - Subject: Rape, Use of Firearm in Felony, B&E, 5A:18, & Recent Complaint Exception to Hearsay.



(1) When a complaining witness tells of being hit and a threat by the accused to harm himself it substantiates the use of force or threat element in proving a rape despite the "the complaining witness' explicit testimony that Breeden did not force, threaten, or intimidate her to have sex." (a) The judge has the option of ignoring inconsistent evidence from the complaining witness. (b) A threat to harm one's self is a threat to harm another and therefore fulfills the element.



(2) Putting a firearm under one's chin and threatening to kill one's self in order to force someone to have sex with you is using a firearm in commission of a felony (rape).



(3) If one breaks into a house, waits for the owner, confronts her with a gun, grabs her, shoves her, and hits her the Court of Appeals will uphold a conviction of B&E with intent to commit battery.



(4) Under Rule 5A:18 in order to argue something before the court it must have been preserved by an objection at trial. If it was not preserved by objection the appellate court will consider a question only if the trial record proves that an element of the offense did not occur or that the appellant was convicted of conduct which is not a criminal offense.



(5) (a) Va Code Sec 19.2-268.2 provides a recent-complaint exception to the hearsay rule in sexually related charges (for those of you not from Virginia our evidentiary rules are not laid out in any particular order in any particular place). Under this statute

the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.

This statute is construed as allowing in statements made to third party witnesses.



Note: On its face, the statute does not support that interpretation. The "fact" of a complaint is not the substance of a complaint. Facially, the most this statute allows is the following exchange:



Prosecutor: "Did she tell you she'd been raped?"



Witness: "Yes"



I'm not sure how a Court obligated to interpret statutes strictly against the Commonwealth can allow this hearsay in to a trial.



(b) When admissible and inadmissible evidence are intertwined a trial judge, in a bench trial, can admit it under the assumption that the judge will be able to entirely ignore and be uneffected by the inadmissible evidence.





Lewis v. Commonwealth - Subject: (1) Scope of Impeachment & (2) 5A:18



(1) If a witness admits to having known another party in the trial for a while and then admits to conviction of a crime, the lawyer can ask if the other party was involved with the witness in that type of crime even if there is absolutely no prior evidence of any involvement. i.e.



Lawyer: "How long have you known Mr. Smith?"



Witness: "Three years."



Lawyer: "Have you been convicted of murder?" (Yes, I know asking about a particular crime is not allowed but it must be after this decision)



Witness: "Yes."



Lawyer: "Is that murder what connects you to Mr. Smith?"



Witness: (Who cares? It doesn't matter what he answers the jury now sees the other party as a potential murderer)



Note: In fairness this may only apply to cases where there is some sort of agreement or ongoing trade (solicitation, sale of drugs, fencing, gang crime). At least I hope that's as far as this ruling extends. The decision doesn't seem to have that sort of limitation in it.



Not that it should have to; this line of questioning should never be allowed by the prosecutor or Defense (I could have a field day with this). This is the Court allowing a highly prejudicial fishing expedition. The questions have no purpose other than the exceedingly small chance of a positive answer which is massively outweighed by the prejudice which is meant to adhere to Mr. Smith by the mere asking of the question (without any proof of anything).



It's a bad decision which opens impeachment to the potential of abuse from all sides.



(2) When Defendants enter a house to rob those inside they cannot be found guilty of attempting to rob someone outside the house even if that person enters the house (victim was shot dead as he entered house but not robbed). Under these facts the transcript affirmatively proves innocence of attempted robbery. Therefore the conviction is a manifest injustice and there need not be any contemporaneous objection at trial.