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Summary and Analysis of Published Opinions of the Court of Appeals, January 12, 2021

by | Jan 13, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The first set of published opinions from the Court of Appeals of Virginia for 2021 includes its first reversal in a criminal case as well as its first application of a procedural bar.  The Court also addresses an issue of standing in an administrative law case.  Let’s start with the most unusual of the three, the reversal of a criminal conviction in a jury trial.

Rae’quan Xavier Dandridge v. Commonwealth of Virginia comes to us from the Circuit Court of Chesterfield County.  Dandridge, a minor tried as an adult, was charged with first degree murder, but his theory of the case was that while he was the actor who caused the victim’s death, his actions lacked the requisite indicia of premeditation and/or malice, thus he requested that the jury be instructed on the lesser-included offenses of second-degree murder and voluntary manslaughter.  The circuit court instructed the jury on the second-degree but refused the proffered manslaughter instruction, Dandridge was convicted of the second-degree murder and he appealed, assigning error to the court’s refusal to instruct on manslaughter.

At this point, I must interject to raise two important points for appellate practice.  The first is that had Dandridge been convicted of the top count, an appeal on the refusal of the manslaughter instruction would have been futile.  Conviction of the top count when the jury is offered second-degree as an alternative negates any possibility that the jury would have rendered a verdict on manslaughter.  This is why some defense attorneys will make the strategic decision to not ask for a second-degree instruction, but only ask for manslaughter, hoping that the jury will see the case as weak and opt for the lesser offense.  The Commonwealth, likewise, will often not ask for the second-degree instruction, hoping that the jury will not want to give the defendant a break.

The second point is that when an appellate court reviews a circuit court’s decision to grant or refuse a jury instruction, it reviews the evidence in the light favorable to the party that proffered the instruction.  Thus, we are presented with a rare instance where the evidence in a case rendered by a jury and confirmed by the trial court is not given the benefit of the doubt.  Instead, the Court is required to view the evidence in the light most favorable to Dandridge, who proffered the instruction.  In my view, the Court has done an exceptional job of doing just that, because I am fairly certain that what went down when viewed from the Commonwealth’s perspective was much more sinister than its portrayal in the Court’s opinion.

A fair summary of the evidence (I direct you, dear reader to the opinion for the broader view) is that Dandridge had spent the day “hanging out” with two teenage girls who then hitched a ride home with Dandridge’s mother.  Dandridge was armed with a pistol which he carried “for protection” and had placed in the driver’s seatback pocket as he was sitting in back behind his mother.  After dropping off the first girl, Dandridge’s mother drove to the home of A.Y., the second girl, whose family had been advised that someone was bringing A.Y. home.

Wanting to “see who was dropping my daughter off,” A.Y.’s mother and stepfather positioned themselves across the street from the home in a parked car.  Other members of the family and friends, more than ten in all, likewise positioned themselves in parked cars on the street or in the yard.  When Dandridge’s mother pulled in front of the house, A.Y.’s mother received a call from one of the people at the house and drove out of the parking lot to block the front of the Dandridges’ car, while another car pulled in behind.

A.Y.’s brother and his friend, ShyHeim Brown, then approached the vehicle, interrogated Dandridge through the driver’s side back seat window and then without warning punched him in the face, then tried to drag him from the car.  A.Y. warned them that Dandridge had a gun and Dandridge and Brown both reached for the weapon which was visible in the seatback pocket.  Dandridge retrieved the pistol and fired four shots at Brown, hitting him with the last one and killing him.

Now, call me cynical, but I have to believe that there was more to the story than that.  But, lacking any details, we move on to the Court of Appeals’ analysis, which I commend to the reader if you would like a compact, but complete, explanation of the law of voluntary manslaughter from Blackstone forward.  Suffice to say that it boils down to whether the jury could have inferred from the evidence that “Dandridge acted in the heat of passion upon reasonable provocation, and thereby acted without malice” in the killing of Brown.  The Court further notes that the trial court approved an instruction of self-defense, meaning that it was the law of the case that the evidence would support a finding that “Dandridge was in fear of death or bodily injury.”

In a prior case the Court specifically held that “it seems the fearful killer is a manslaughterer when his fear is produced by facts insufficient to make him a self-defender” Couture v. Commonwealth, 51 Va. App. 239, 249 (2008) (quoting Ronald J. Bacigal, Criminal Offenses & Defenses in Virginia, Homicide, 358-59 (2007–08 ed.)).  Thus, it is almost a given that where there is sufficient evidence for self-defense, there is likewise a reasonable interpretation of the evidence that would support a manslaughter conviction.

The Court rejected the Commonwealth’s theory that manslaughter was negated by the fact that the final shot, the one that killed Brown, was deliberately aimed.  The Court distinguished Woods v. Commonwealth, 66 Va. App. 123 (2016), where the defendant had fired 10 times, striking the victim each time, noting that the evidence was at best equivocal as to the sequence of events.

I am fully in agreement with the Court’s judgment.  While I suspect that there was evidence favorable to the Commonwealth – probably with respect to exactly what Dandridge and A.Y. were doing while “hanging out” and why Dandridge, a minor, was tried as an adult when he might just have easily been convicted of a lesser offense as a juvenile if the facts and his record warranted it – the standard of review does not permit the appellate court to consider that evidence unless it was so overwhelming as to make the error in refusing the instruction harmless.  The Court of Appeals expressly found that the evidence wasn’t even close to overwhelming, given that the jury convicted Dandridge of the least serious offense it could.

On remand, Dandridge will face at most a charge of second-degree murder and may be able to persuade the Commonwealth to make a deal on manslaughter.

The second criminal appeal today is Ryan Thomas Pick v. Commonwealth of Virginia  from Hanover County, and it’s a longer and far less interesting read than Dandridge.  Mr. Pick, a teacher, was charged with multiple counts of using a communications system to procure a minor, in violation of Code § 18.2-374.3(B), and one count of using a communications system to solicit a child believed to be less than fifteen years old, when the accused is seven or more years older, in violation of Code § 18.2-374.3(C)(1).  In case you haven’t already guessed I will save you the suspense, Pick’s Lolita was actually a law enforcement officer.  Pick was convicted on all counts.

Pick’s appeal challenged the failure to suppress the records of his online chats with the “female,” contending that their use would violate the wiretap act.  Code § 19.2-61 to -70.3.  The Court of Appeals ruled that chatlogs are not subject to the act because the party proffering them was a party to the communication.

Pick also challenged the introduction of an interview with police when a search warrant was executed at his home.  Pick was initially handcuffed as the search was under way, but later the restraints were removed, and Pick was told that he was not under arrest.  Pick then voluntarily accompanied an investigator to a “command post” vehicle and answered the investigator’s questions for approximately 10 minutes before requesting to speak to a lawyer at which point he was informed that the police had warrants for his arrest.

At the suppression hearing, Pick’s counsel initially argued that Pick had been in custody the entire time, but subsequently conceded that he “might” have felt free to leave after he was told he was not under arrest until he was informed of the arrest warrants.

As I already said this case involved the Court’s first invocation this year of a procedural bar, you no doubt know what’s coming.  The Court of Appeals held that the issue of whether Pick was in custody during the interview had not been preserved for appeal, Rule 5A:18, because counsel had waived that argument before the circuit court by limiting his argument to whether Pick was subject to a custodial interrogation after he was advised that there were warrants for his arrest – at which point the interview had already concluded. Some would contend that counsel only said that Pick “might” have felt free to leave, also meaning that he might not have felt that way.  The Court of Appeals, however, reasoned that this argument did not assert that Pick was actually in custody, only that he might have subjectively believed himself to not be free to leave.

The final issue was the sufficiency of the evidence which, unlike Dandridge, is viewed in the light most favorable to the Commonwealth.  While some of the evidence against Pick was circumstantial, when viewed in its totality, the Court determined that it was indeed sufficient to sustain the charges.

Sarah Ellis Peed v. Virginia Department of Transportation and Washington Gas Light Company is a NIMBY case seeking to stop the construction of a subsurface pipeline beneath the streets of a residential neighborhood in Fairfax County.  WGL obtained a permit for the proposed route from VDOT.  Peed filed this action to challenge the awarding of the permit and the circuit court sustained a motion to dismiss by VDOT and a demurrer by WGL, finding that Peed lacked standing as she was not a party aggrieved of the permitting decision.  Peed maintained that because she had participated in the commenting process leading up to the granting of the permit, she was a “party” to the permitting process.  The Court of Appeals disagreed, finding that the plain meaning of the term “party” in the relevant statutory framework means the applicant and the agency (or any party allowed to intervene) not merely members of the public who participate in the proceedings through public comments.

Not addressed in this opinion, but a point that I wish to raise as a founding member of the Procedural Geeks Club is that the two pleadings on which the circuit court considered this case were both improperly styled.  A challenge to the standing of a plaintiff should be styled as a Plea in Bar, not  amotion to dismiss and certainly not a demurrer; however, it is the policy of the courts of Virginia to rule on the substance of a pleading, and not how it is styled in its caption, so I will cut counsel a little slack.