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Summary and Analysis of Three Published Opinions of the Court of Appeals

| Jun 17, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

The Court of Appeals released three published opinions and five unpublished opinions today.  If one didn’t know better, you might suspect the Court was clearing the decks before the summer hiatus (Editor’s note: One does know better and that is exactly what the Court is doing, look for more opinions leading up to the Fourth of July Weekend).

Romario Bailey v. Commonwealth of Virginia  involves a misdemeanor appeal from a case that originated in a General District Court, which is a fairly rare animal to see in a published opinion.  The issue is whether the circuit court erred in denying a continuance on the appeal date.  Bailey represented himself pro se on an assault charge in the General District Court – the opinion recounts the nature of the offense, but as it isn’t germane to the issue on appeal, I will refer you to the opinion if you wish to know the details.  What is germane is that Bailey hired counsel for the de novo appeal, and he and his counsel appeared on the trial date.  Counsel immediately requested a continuance because there were two witnesses who were not present and were, counsel contended, essential to Bailey’s case.

We pause here to give a two brief practice points for any novice attorneys out there:  If a witness is essential to your case, subpoena them.  I don’t care how much they assure you that they will be present, how much they love, cherish, and respect your client, or how inconvenient it is for you to have the subpoena issues.  Subpoena them.  Full stop.

Next, misdemeanor appeal days are probably the least favorable days to ask a circuit court judge for a continuance.  No, strike that.  The ARE the least favorable days to ask for a continuance.  Appeals from misdemeanor convictions just don’t rate that high on the circuit court’s list of “things I really enjoy about this job” for the judges.  If you need a continuance, ask in advance (the earlier the better).  If you just want a continuance, suck it up.  If your schedule is too busy and you think that the misdemeanor appeal should be continued so that you can go to that deposition two counties over, prepare to be on the circuit judge’s persona non grata list (persona non grata is Latin for a four-letter euphemism for excrement).  Misdemeanor appeals are great for letting an associate cut their teeth on circuit court practice, so when agreeing to take the case, make sure you explain to the client that your very competent associate may do the actual trial.  If you don’t have an associate, see the response to what to do if you want, but do not need, a continuance.

Now, back to our original programming.  It turns out that Bailey had retained his counsel just three days prior to the trial.  He gave the court some reasons why he had delayed in hiring counsel, but the circuit court appeared unmoved.  The Court of Appeals added a footnote at this point to say that neither Bailey nor his counsel had made any attempt to seek the continuance during those three days.  The circuit court “respectfully denied” the continuance but moved the case to the end of the docket to allow Bailey and his counsel time to prepare.  (A lesser mind would think that the court was making sure that Bailey’s counsel had to remain in the court rather longer than anticipated – a lesser mind would be wrong; the court was making a genuine effort to give Bailey a fair shot – the inconvenience to counsel was just a bonus).

Now let me suggest that Bailey’s counsel was perhaps not well-versed in criminal cases, or at least not in the more formal procedures that apply to the circuit court.  Suffice to say that the Court of Appeals notes several deficiencies in counsel’s performance: 1) counsel did not make a formal objection to the denial of the continuance on Sixth Amendment grounds (or really any grounds); failed to make a motion to strike at the end of the Commonwealth’s evidence;  asked to proffer the expected testimony of the witness, which the circuit court said it would allow, but counsel then conceded that he had not spoken to either witness and had only Bailey’s assurance that the witnesses would support his version of events; and did not move to strike the evidence at the close of the case.

After he was convicted and sentenced, Bailey hired new counsel – but this counsel proved no more adept at the niceties of trial practice.  The new counsel filed a motion for reconsideration 14 days after the sentencing order was entered.  This motion set out the arguments that the original counsel should have made at trial.

Counsel did not file a corresponding motion and order to suspend the judgment or request the circuit court to act on the motion within 7 days. Now the circuit court again stepped in to try to make sure that Bailey was getting a fair shake and sua sponte set a hearing on the motion on the 21st day following the sentencing order, heard argument, and “respectfully denied” the motion for reconsideration from the bench (more about this ruling below).

Experienced hands know where this going – the order denying the motion was not circulated and entered by the circuit court until the following day – the 22nd day after the final judgment.  No one could argue that the judge, having given Bailey a break by setting the hearing on the last possible day should have entered a bench order at the end of the hearing.  But the judge was certainly not required to do so – and counsel should have known that the Rule 1:1 deadline was at hand and acted with expedition.

It will come as no surprise that the Court of Appeals finds that the appeal, which challenged the denial of the continuance for the reasons stated in the motion for reconsideration, was not subject review because the circuit court never ruled on the motion while it had jurisdiction over the case.  Trial courts speak only through their orders, and here the order was entered 1 day beyond the court’s jurisdiction to do so.

So, what about the ruling on the motion for reconsideration?  If the appeal had not been barred, would the Court of Appeals have reversed and remanded for a new trial?  Probably not.  “But, but, but . . . you said the motion had all the right arguments!”  Yes, it did, but these were arguments that should have been made at the trial not 14 days later.  The contemporaneous objection rule doesn’t apply just on appeal – the circuit court was within its discretion to decided that the arguments of the motion came too late.  As for Bailey, well he has adequate grounds for a habeas action as I think there is ample evidence of ineffective assistance of counsel.  However, he will also have to prove that but for these errors the result of the criminal case would have had a favorable result and given the he said/she said nature of that evidence, and a certain sense one gets that Bailey was less than credible and his “witnesses” have never been placed under oath, I seriously doubt the court will find his acquittal was close to a sure thing.

Moussa Moise Haba v. Commonwealth of Virginia involved Code § 18.2-386.1 (not 286.1 as mistaken stated in the summary on the Court’s website), which makes it a crime to take photographs of a person without their permission through surreptitious means in a situation where the person would have a reasonable expectation of privacy.  Basically, were talking about “peeping tom” situations aided by advance technology.

Now, the facts of this case are not the usual “hidden camera in the restroom” scenario.  The victim and Haba were acquainted over social media and eventually the victim agreed to meet with Haba at her apartment (never a good idea when first meeting someone from known only through social media).  Things did not go well.  Haba was “very controlling,” and claimed to already have videos of the victim that he would turn over to “the Saudi authorities.”  The victim was a Saudi national and in the US on a government sponsored scholarship.  Using this as leverage, Haba coerced the victim into permitting him to video her undressing.  She initially shielded herself with a blanket, but Haba insisted that she drop the blanket.  She then tried to cover herself with her arms.  Following the incident, the victim contacted police, and Haba was arrested, who was charged with abduction and the violation of Code § 18.2-386.1.

Regrettably, the jury found the evidence of abduction to be insufficient (I am not saying it was a slam dunk, but had Haba been convicted, I would not have expected a reversal for lack of sufficient evidence).  The jury did convict Haba of Code § 18.2-386.1 with a sentence of 10 ½ months, a sentence that I feel is inadequate, but the maximum sentence of 12 months — Code § 18.2-386.1 is a class 1 misdemeanor – would hardly have been adequate either.  Unfortunately, the law does not always correspond in severity to the specific facts of a case.

Haba’s appeal was limited to challenge only one aspect of the elements of Code § 18.2-386.1 – whether the victim had a reasonable expectation of privacy under the facts of the case.  After all, Haba contended, he was right there in the room with her, and she knew he was videoing her.  I am pleased to say that the Court of Appeals response was, and I am paraphrasing here, “Perhaps, but there was a helluva lot more going on than just that.”  In short, everything about the situation suggested that Haba was using extraordinary pressure to force the victim to surrender her expectation of privacy and she was doing everything possible to maintain it.

One final note.  I started this post off by mentioning that published opinions dealing with misdemeanors originally appealed from the General District Court were rare animals – yet here is another misdemeanor conviction as the subject of a published opinion.  Except this is not a case of an appeal from a case originally tried in a General District Court.  Because Haba was also charged with a felony, the misdemeanor was tried in the circuit court in the same trial as the felony.  Still a pretty rare animal.

Michael Moreno, s/k/a Michel Moreno v. Commonwealth of Virginia is the only case from the published decision of the week from felony convictions, and they are serious ones: first degree murder and felony hit and run.  The facts are more tragic than sinister.  Moreno lived with his mother, who contracted lung cancer.  His sister Nancy become the principal caregiver for the mother during a length hospital stay.  Moreno believed that traditional treatments were not effective and urged his sister to try alternative therapies, but she disagreed.  Eventually the mother was returned home – although the opinion does not expressly say so, it appears this was for hospice care.

After the mother died, Nancy remained in the home to care for Moreno.  Moreno told several people that he blamed Nancy for their mother’s death.  On the July 12, 2018, Nancy had to travel for work and arranged for Moreno to drive her to Dulles Airport.  Under circumstances that were not entirely clear, Moreno pulled the vehicle to the shoulder near Dulles, Nancy exited the vehicle and began walking toward the airport.  As observed by two witnesses, Moreno then drove forward at a high rate of speed directly at his sister then drove away at high speed after striking her and driving over her.  One motorist pursued the fleeing vehicle and called 911.  Another motorist, who also observed the accident, stop to render aid.  Nancy was transported to a nearby hospital but died soon after.

Police identified Moreno as a suspect and, when unable to contact him on his cellphone, obtained the location of the last “emergency ping” from his phone.  Using this data, police were able to locate Moreno at a casino in Anne Arundel, Maryland, and the vehicle he had drive was in the parking lot.  When approached by police, Moreno immediately asked “How is my sister?”

Following his arrest and indictment, Moreno sought to suppress evidence collected from the vehicle at the casino.  Moreno contended that unlike “historic” cellphone location data, which he conceded has been found to be proper evidence to show a defendant’s whereabouts, the use of “live” data to track a suspect was an invasion of privacy.  The circuit court overruled the motion and following a jury trial Moreno was convicted and sentenced to 38 years’ imprisonment.

On appeal, Moreno again asserted that it was improper for police to obtain live cellphone data without a warrant to ascertain his location and, thus, any evidence derived from his arrest at the casino was “fruit of the poisonous tree.”  The Court of Appeals, “assuming without deciding” that a warrant would normally be necessary, holds that probable cause and the exigent circumstances justified the warrantless “ping” of the cellphone.  The Court reasoned that one of the exigent circumstances permitting a warrantless search is the pursuit of fleeing suspect who may present an ongoing danger to the public or be in the position to destroy evidence.

I suspect that this case may be of interest to the Supreme Court of Virginia, if not the United States Supreme Court, presuming that Moreno decides to pursue the matter.  This is a developing area of the law and by no means settled.

Something not mentioned in the Court’s opinion is that Moreno has “neurocognitive disorders,” which were caused or exacerbated by a head trauma 25 years ago.  Family members testified that he was “odd” and difficult to relate to.  Additional reports of the trial give a vivid picture of how this tragedy has impacted Moreno’s other siblings.  What is clear from these reports is that Moreno was not receiving any outside assistance from the government or private organizations during the many years leading up to the murder.  It is not difficult to speculate that the stigma attached to mental health disorders that persists in this nation was in part responsible for his isolation and inability to cope with the reality of his situation.  While this is not ground to excuse his brutal act, it is yet another example of how we continue to fail those who are the least among us.