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An overdue compendium summarizing and providing commentary on published opinions from the Court of Appeals from the last three weeks including a discussion of Writs of Actual Innocence, “The Rule,” why it’s good practice to look at former versions of current statutes, continuances sought during the ongoing Judicial Emergency caused by the COVID-19 Pandemic, revenge porn, and an opinion that probably should have been a little bit longer

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

The summer doldrums (and some real legal work) have delayed reporting on recent published opinions of the Court of Appeals of Virginia (not to mention the BIG NEWS of 8 – that’s right 8 – new members appointed to the Court this week – a post on this momentous event will follow in the next day or so).  So here is a recap of the cases that have been handed down recently:

Daryl O. Tyler v. Commonwealth of Virginia is a published order denying a petition for a writ of actual innocence (“WAI”).  This is the first actual innocence case to be addressed by a published decision since this “blawg” started back at the first of the year, so let’s take a moment to discuss this form of post-conviction relief.

There are two types of WAIs: The writ based on DNA evidence and the writ based on after-discovered or new evidence.  Neither writ can be sought until the defendant has exhausted his right to challenge the conviction on direct appeal or the time for making such challenge has passed.  This is true even though a claim of new or after-discovered evidence cannot be raised for the first time on appeal (but can be the subject of an assignment of error if raised in the trial court after the conviction but before sentencing or within 21-day thereafter and ruled on by the trial court).

The “DNA WAI”  is a fairly straight-forward affair in which DNA evidence used in a conviction (or not used because tests were inconclusive) is retested with modern techniques and conclusively excludes the defendant as the source of the DNA – presuming that the DNA evidence was essential to the conviction (or would have been disclosed as exculpatory), this usually results in the writ being granted and the conviction set aside by the Supreme Court of Virginia, where the writ is filed under that Court’s jurisdiction.  This is not to say that a DNA WAI is a “slam dunk,” because DNA evidence is not always essential to the conviction – for example, the sample may have been recovered from evidence that was only tangentially connected to the crime scene or the evidence may be interpreted as indicating the presence of an accomplice, rather than then absence of the defendant.

The other WAI requires the defendant to show that there is “non-biological” (i.e., not DNA) evidence that was unavailable at trial despite due diligence on the part of his defense team or new evidence (frequently a recantation by a witness or a confession by another person) which establishes by at least a preponderance that the conviction was in error because no reasonable juror would have convicted if the additional evidence had been admitted at trial.  The standard for setting aside a conviction based on non-biological evidence was modified in 2020 to the preponderance standard from the former clear and convincing.  While this standard is theoretically easier to prove, in fact the burden is still very high.

The Court of Appeals has three options when reviewing a WAI: 1) it can grant the writ and set aside the conviction; 2) it can refer the matter to the circuit court where the conviction was obtained for an evidentiary hearing, following which it will review the record including credibility findings of the court and make its determination, or 3) it can refuse the writ, finding that on its face it fails to mee the requisite standard.  Tyler, the order released last Tuesday, falls into the last category.

Tyler was convicted of attempting strangulation.  There were two other people beside the victim present at the time of the assault, but one did not testify at trial – at the time the defense averred that it had made a diligent effort to locate that individual but had not been able to locate him.  Tyler appealed his conviction to the Court of Appeals and the Supreme Court of Virginia, concluding the direct challenge to his conviction in early 2020.  Shortly thereafter he filed the WAI alleging that the missing witness had been located and provided an affidavit asserted the “he never saw” Tyler strangle the victim.  This statement, however, was in direct contradiction of the statement the witness gave to police following the incident.

So, even if you are not an adept student of criminal trials, you can probably guess that where a witness has given a contrary statement to police from what he would presumably have said at trial, the Commonwealth would have attempted to impeach his testimony with the prior statement, and the jury would be left to decide whether to believe the witness.  You can probably guess that this alone is not sufficient, even under the preponderance standard of the 2020 amendment of the WAI law to allow the Court to find that no reasonable jury would have convicted Tyler – especially as there was considerable evidence supporting the allegation of attempted strangulation including the testimony of the victim.

So, given that this is not even a close case for granting a WAI, which publish even as an order?  Because the Court starts in analysis by noting that under the 2020 amendment it must apply the new preponderance standard and it lays out how it will do so.  For this reason alone, this is a “must read” for any attorney (or pro se prisoner) filed a non-biological WAI petition.

John Crescent Ndunguru v. Commonwealth of Virginia was released on August 3, 2021, along with the next two cases.  In a bench trial, Ndunguru was convicted of five counts of felony making a false statement in application for Medicaid payments for medical assistance, in violation of Code § 32.1-314, and five counts of felony obtaining money by false pretenses, in violation of Code § 18.2-178.  The sole issue on appeal involves an alleged violation of “the rule.”  Now if you know anything about the law, you know that there are all kinds of “rules” – Rules of Court, Local Rules, Rules of Professional Conduct, etc. – so you might well ask how “the rule” can have particular meaning.  Well, glad you asked, because therein lies a tale.

Soon after the beginning of most trials in courts of record (and sometimes, though less frequently in the “non-record” district courts), the judge or an attorney will make reference to “the rule,” viz.:

Attorney: Judge, I would ask for the rule.

Other Attorney: No objection, your honor.

The Court: Very well, the rule is invoked.  Will all the witness who expect to give testimony on this matter please stand?

Depending on local custom, the witnesses may all be asked to identify themselves and who they are to testify for; they may also be administered the witnesses’ oath, particularly if it is a bench trial; and, the court may ask the attorneys if there are any expected witnesses not present and whether, in a criminal case, the victim (in a criminal case) will be called as a witness.

The judge will then instruct the witnesses that they must leave the courtroom and wait outside, sometimes in special rooms designated for prosecution/plaintiff’s witnesses and defense witnesses.  The judge will further instruct them that they are not to discuss their testimony, either before or after being called, with anyone until the trial is concluded (some judges modify this to “anyone connected with the case in anyway” or words to that effect).

So how did this practice come to be known as “the rule”?  The complete reference is to “the rule for exclusion of witnesses,” and was for many years a common practice in the Anglo-American courts.  Eventually, it became codified and now appears in the Virginia Code at 8.01-375 (civil cases) and § 19.2-265.1 (criminal cases).  Subsequently when Virginia adopted Rules of Evidence, it was also made an actual “rule,” Rule 2:615 to be exact.  So, the asking or “calling for the rule” simply became a shorthand way for asking the court to sequester the witnesses.

The purpose of “the rule” is to ensure that witness do not deliberately conform (or alter) their testimony after hearing what another witness has said.  Of course, it is not uncommon for witnesses to collude before the trial and “get their stories straight.”  But, contrary to what one might thing, it’s a lot harder to do this than merely agreeing on what each witness will say.  First, witnesses are not given free reign to recite memorized statements.  Second, witnesses are subject to cross-examination during which a skilled litigator can easily poke holes in a prepared story.  Also, judges and juries can spot prepared testimony just about every time – and it’s actually more obvious when the witnesses are sequestered.

Contrary to what many assume, “the rule” is not universal – the fact that there has to be a “rule” and it must be asked for indicates that it was at once time an exception to the common practice even in Anglo-American courts.  In many judicial systems not based on the English common law (we are too fond of saying “Anglo-American” which should really apply only to US courts – Canada, India, Australia, and dozens of other judicial systems in the former British Empire function in ways similar if not identical to US courts – indeed the US is the outlier in that we have abandoned wigs and robes for attorneys), witness are not only permitted to remain in the court, but the concept of excluding them would be considered insulting to their integrity.

Here endeth the lesson.

Now, back to Mr. Ndunguru and his appeal involving “the rule.”  The rule was called for at the beginning of the trial, but not all the witnesses were present.  As is customary, an officer was stationed outside the courtroom to intercept the late-arriving witnesses and to inform them that they were not to enter the courtroom or discuss the case with anyone.  Unfortunately, due to intervening circumstances, one witness was able to enter the courtroom and heard a portion another witness’s testimony.  The Commonwealth informed the court of the witness’s presence, and the court instructed her as to the rule and she left.

The court subsequently conducted a hearing to determine whether the witness’s presence for the brief part of the testimony was prejudicial to Ndunguru.  Although both were witnesses for the Commonwealth and testified about similar facts relevant to the fraud, the court found that there was no reasonable possibility that the late-arriving witness would have “adulterated” her testimony because of having overheard the other witness.  As with most questions involving the credibility or witnesses and the admission of their testimony, the Court of Appeals notes that it gives great deference to the findings of the trial court, which observed the witness and could judge her demeanor, and, thus, the court’s decision to permit the witness to testify is a matter of discretion.  Citing the recent Supreme Court cases of Galiotos v. Galiotos, already discussed in this space for its excellent rendition of what constitutes an abuse of discretion, the Court of Appeals finds none here.

Ryan Berkeley Allison v. Commonwealth of Virginia, the second criminal appeal from last week, is a reversal of a criminal conviction under Code § 54.1-3466.  Now it is likely that all but the most experienced criminal defense attorneys (and probably only slightly more prosecutors) have any clue what Title 54.1 deals with – because it’s not the Criminal Code (Title 19.2) or the Traffic and Safety Code sections of the Motor Vehicle Title (Title 46.2).  The fact is that criminal offenses are scattered throughout the code – for example in Title 40.1, Labor and Employment, their crimes related to child labor violations and other workplace offenses, and Titles 28.2 (Fisheries and Habitat of the Tidal Waters) and 29.1 (Wildlife, Inland Fisheries, and Boating) have crimes involving poaching and hunting out of season, not to mention an offense that is among my personal favorites, reckless surfboarding – really, check it out at Code § 29.1-738.

So, what is Title 54.1?  Professions and Occupations.  You can probably guess that the criminal offenses in this Title deal with such things as practicing medicine without a license, operating certain unlicensed businesses, etc.  But it is also where you will find Chapter 34, the Drug Control Act, and therein you will find crimes that are usually charged under Title 18.2, Chapter 7, Article 1, 1.1 and 2, the sections of the Code that deal with drug and drug paraphernalia offenses.  Code § 54.1-3466 relates to controlled paraphernalia, that is, medical devices that can be used in an illicit manner related to the ingestion, injection, or transdermal uptake of drugs – in Allison’s case, a hypodermic syringe.  The apparently unused syringe (the protective orange cap over the need was intact and the syringe “looked new”) was found in the pocket of a jacket Allison was wearing when he was apprehended and arrested on an outstanding warrant after attempting to flee.

The arresting officer testified that Allison “looked surprised” when the syringe was found in the jacket pocket.  He later told the officer that the jacket was “old” and he put it on as he fled the house where the warrant was being served because it was cold outside.  He denied any knowledge of the syringe.  Police conducted a thorough search of the residence and the surrounding area with a drug-sniffer dog but found no other paraphernalia and no evidence suggesting that illicit drugs were in use at the residence.

Now if you want to get hyper-technical, one only needs a prescription or a license to possess a hypodermic syringe – anyone can by a non-hypodermic syringe at a drug store or in the kitchen utensil aisle at Tar-Mart.  In fact, back in the day before disposal of hypodermic syringes was required by federal regulation, doctors would often entice recalcitrant young patients with the promise of being given the “shot giver” (with the needle removed and the body and plunger rinsed) as a reward for being brave while getting a vaccination – they made great one-shot squirt guns.

Allison’s defense counsel decided to get REALLY hyper-technical and pointed out to the statute says it is unlawful to possess the syringe (or other controlled medical device) “under circumstances that reasonably indicate an intention to use such controlled paraphernalia for purposes of illegally administering any controlled drug.”  Hmmmm?  That sounds like a pretty good technicality for Allison – especially given the rule of lenity.  That’s a rule (not “the rule) for construing a penal statute which says the defendant gets every benefit of a narrow, rather than broad, application of the language used to define the offense.  The circuit court, however, didn’t see it that way.  In the court’s view, Allison had no legitimate purpose (i.e., a prescription) for possessing the syringe, ipso facto he must have possessed it for an improper purpose,” and the court didn’t seem to think it was for a water gun fight.

As it turns out, however, the Court of Appeals was not required to decide whether the circuit court was wrong, because unlike the defense counsel or the Commonwealth, some sharp-witted servant of the appellate court (likely a law clerk or staff attorney – which is not to suggest that the judges are not sharp-witted, it’s simply that the way in which cases are dealt with in the appellate courts, the heavy lifting of the initial research falls in the staff) discovered a Supreme Court of Virginia case involving Code § 54-524.109:1, the predecessor statute to the statute at issue here, Code § 54.1-3466.  In Murray v. Commonwealth, all they way back in 1983, the Court found that a jury instruction requiring a finding that the defendant had the requisite intent to misuse the syringe was correct.  In other words, there had to be some basis for the court or jury to find that the defendant intended to use the syringe to administer illicit drugs (or, one might suppose, some other nefarious purpose such as administering poison).  Here, the Allison’s’ inability to show he had a legitimate reason to possess the syringe was an improper shifting of the burden of proof.  In Murray, the syringe was, inconveniently for the defendant, found with heroin, which is pretty damning proof of what the defendant intended to use it for.  Here, there was no evidence that drugs were available to Allison or that he had any intention to use the syringe, even if one discounted his claim that he was unaware of its presence.

Practice Point from this case:  Always research the history of a statute thoroughly, especially if prior forms are either identical or, more importantly, significantly different from the current version.  When the language is identical or nearly so, as in this case, prior interpretations of the law will still be good precedent.  If, however, the legislature has significantly changed the law, you may well find that the change has not been noted by the prosecutor or the court, particularly if it is a recent amendment or recodification.

Oskana Marinaro v. Domenick A. Marinaro, the last of the cases from August 3, is a domestic case, and it is, to your humble servant’s knowledge, the first case from either appellate court in Virginia’s judicial hierarchy to directly address the impact of the COVID-19 Pandemic and its related Judicial Emergency Orders on motions to continue.  I will not bother you with details of the underlying case, which are not germane to holding.  Rather, the issue developed to one simple questions, “Does the record show that in denying the continuance the circuit court followed the directive the Supreme Court’s Emergency Order “to consider and give substantial weight to COVID-19 as a factor in determining whether to grant a continuance” or alternately make sufficient arrangements to accommodate the party seeking the continuance.  Because the record here is silent as to any consideration the circuit court may have given in denying the continuance and making no accommodation, the court abused its discretion, and the matter is remanded for further proceedings.

The most recent post prior to this one dealt with one of three cases decided on July 27.  In that post I promised to get to the other two and now belatedly fulfill that promise.

Ronnie Lee Johnson v. Commonwealth of Virginia involves a practice that has become unfortunately common in our online, voyeuristic society – the surreptitious filming (or videoing) of another person in a, ahem, compromising position.  Most such cases involve a hidden camera is a public place – a rest room or individual dressing room – a communal semi-private space – a locker room or shared dressing room – or the use of a hidden camera in a private space to which the “cameraman” does not have lawful access.  All these instances are clear violations of Code § 18.2-386.1.

But what about a circumstance where the “cameraman” is actually invited into the private space and is, in fact, a participant in the “compromising” act – OK, we’re all adults here (I assume – I can’t imagine that a teenager or younger child is surfing law blogs hoping for some prurient thrills, but if you are under 18, please click here – and yes, I know you all just clicked that link to see where it went) so let’s stop using euphemisms shall we?  Johnson was a regular invited guest in the bedroom of a lady where they engaged in various sexual acts over a period of some time.  This relationship was sufficiently committed that the couple had a “domestic tenant agreement,” that is Johnson was legally entitled to be in the apartment and, while the opinion is not clear, it would appear that the apartment had a single bedroom.

Alas, as with many young romances, the bloom was too soon off the rose (sorry, I said no euphemisms, didn’t I?) – Johnson ceased being a domestic tenant.  Johnson then emailed a video to his former lady love which clearly showed the two of them engaged in an act of sexual congress, which but for the US Supreme Court’s decision in Lawrence v. Texas would still be a criminal offense in Virginia as “crime against nature.”  Whether his intent was to woo back the said lady or (more likely) to advise her that he was in possession of “revenge porn,” the lady took umbrage and contacted the authorities, because she had never authorized nor been made aware that such a recording was being made.

It subsequently emerged that there were additional such recordings, including two that had some very interesting comments by the victim in response to some cryptic references by Johnson (which possibly were the subsequent cause of his being kicked to the curb) to the existence of videographic proof of his comings and goings.  This evidence conclusively established that the victim had no desire to be filmed in the aforesaid compromising acts and would object to even being pictured merely in a state of undress.

Johnson contended, however that as the victim had consented to the acts and knew that he was present (indeed a participant), she had no expectation of privacy, a requirement for proving an offense in violation of Code § 18.2-386.1, in the bedroom they shared.  Setting aside the victim’s claim that the specific act depicted in the emailed video was not one she consented to and that she must have been drugged, the circuit court ruled that consent to a sexual act in a shared bedroom did not extend to consent to be filmed performing such act.

The Court of Appeals affirms the conviction, noting that “expectation of privacy” in the context of Code § 18.2-386.1, refers specifically to the expectation of not being filmed while in a state of undress or otherwise in a compromising circumstance.  Thus, as with the placement of a hidden camera in a communal locker room or dressing room, the mere fact that the victim has surrender some expectation of privacy with respect to other persons present does not mean that all expectations of privacy are waived.

Brian Wesly Ruff v. Commonwealth of Virginia is the last of the opinions in the backlog – and possibly the most troubling.  The issue is whether Ruff was provided with the ability to “contemporaneously” communicate “privately” with his attorney during the testimony of the victim, Ruff’s seven-year-old daughter, during his trial the rape and aggravated malicious wounding of the child.  Code § 18.2-67.9 requires that under circumstances where the defendant and his counsel are not in direct communication (i.e., sitting together), he must have the ability to communicate contemporaneously and in private with his counsel during all relevant proceedings

Initially, the court attempted to have the victim testify in open court with her father present, but she was unable to do so, in part because of Ruff’s behavior.  After hearing expert testimony that any further attempt to have the child testify in open court with be harmful to her mental well-being, the court determined to have the child testify via closed circuit television with the judge, a bailiff, and prosecution and defense counsel in a separate room  Ruff was to remain in courtroom but was provided with a telephone permitting him to speak directly with his counsel during the testimony, but which required counsel to answer the phone  each time Ruff wanted to talk to him.  Defense counsel objected that unless the court cleared the courtroom, Ruff would not be able to speak confidentially to him.  The court indicated that it would address this situation if it arose.

During the testimony, consulted with his counsel in a “private room,” after which the attorney was permitted to ask the child additional questions.  The opinion does not make clear whether Ruff called his attorney on the phone and then they met in the “private room,” but given the sequence of the events as described, it appears rather that Ruff elected not to use the phone and instead had private consultations with his counsel during “breaks” in the proceedings.

After he was convicted, Ruff filed an appeal in which he raised several issues related to the way he was permitted to communicate with his attorney.  The Court of Appeals, however, granted only one assignment of error, which the Court said challenged whether the circumstances of Ruff’s trial satisfied Code § 18.2-67.9.  The Court stated that “[s]pecifically Ruff argues that the communication would not be instantaneous, nor would it be private because Ruff would be speaking into the telephone in the presence of the jury.”  (Emphasis added.)

The emphasized language highlights the troubling aspect of this opinion.  For while the Court gives a reasoned explanation of why the telephone arrangement was sufficiently contemporaneous, it makes no reference to whether the communication was “private” as also required by Code § 18.2-67.9.  The Court’s conclusions simply reads “[t]he trial court, providing Ruff with a telephone to communicate with defense counsel during the closed-circuit testimony of a child victim met the statutory requirement of Code § 18.2-67.9 that a defendant be provided with a means of ‘contemporaneous communication.’  Accordingly, we affirm.”  Despite having clearly outlined the issue in its recitation of the incidents of trial and in introducing the issue for discussion, the Court inexplicably makes no reference to the privacy requirement in its analysis.

The most likely explanation for this omission is that, as indicated in the summary of the proceedings, each time Ruff and his counsel spoke it was in a “private room” with only the attorney present, thus the Court did not feel the need to separately address the “private aspect” of the actual communication between Ruff and his counsel.  However, Ruff’s argument was not that his communications were not private, but rather that the solution offered by the court – the telephone connecting the courtroom to the room where the testimony was taking place was not contemporaneous or private.  In other words, Ruff was contending that even if he were permitted to speak to his counsel privately, this was accomplished only by there being a delay in the proceedings so that they could meet in the “private room,” and this resulted in the communication not being “contemporaneous.”

The Court undoubtedly found that the delay occasioned by having Ruff and the attorney meet in the “private” room was not sufficiently significant to defeat the contemporaneousness of the communication.  That is certainly a reasonable conclusion.  It just would have been nice for the Court to say so clearly.

So this long and long overdue post comes to an end.  I will close with a final observation that “contemporaneousness” at 19 letters may be the longest word yet to appear in this space.