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Lightning Strikes Twice in One Day at the Court of Appeals — Two Criminal Cases Reversed

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

To say that Virginia’s Court of Appeals never reverses a criminal conviction would be an exaggeration. In truth, all appellate courts everywhere tend to affirm far more than they reverse judgments, so the odds are already against any given criminal defendant appealing a conviction. By one measure, considering all the appeals that are refused at the petition stage under the current manner for seeking an appeal in a criminal case, the Court of Appeals’ reversal rate in criminal matters hovers somewhere around 2%. When all appeals become appeals of right, we can expect to get a clearer picture of the true reversal rate, which may be even lower if the availability of appeals of right causes a surge in near-frivolous filings.

Thus, when the sole published opinion of the Court of Appeals released on Tuesday October 12, 2021, clocked in at 22 pages with a summary announcing the reversal of a major drug felony, I expected a dissent was the reason for the excessive length. Reading the names of the Judges on the panel, Beales, Russell, and Haley, I grew more certain that this would prove to be a 2-1 decision. But I was wrong. Judge Russell wrote the opinion for the panel with nary a discouraging word from Judge Beales or Sr. Judge Haley.

Alonzo Devon White v. Commonwealth of Virginia started, by all appearances, a run of the mill domestic disturbance call. Police dispatch directed law enforcement to an apartment complex after receiving an anonymous call reporting that “a black female and a black male had an altercation in the parking lot in which the black male pulled a gun on the black female.”  Further reports (from whom, it is not clear) indicated that “a black male had beat a female in the street with a gun.”

When law enforcement officers arrived, there were two groups of people in the parking lot along with many bystanders. Officers could not identify the two individuals about whom the report had been made. Witnesses gave conflicting versions of the events, suggesting that either the male or the female had been the aggressor.

Officers then entered one of the apartment buildings and were told that the man and woman were in a particular apartment.  Repeated and very forceful knocking at the apartment door resulted in no response for some while, but eventually a woman with a young child answered the door, opening it just a fraction. Despite having a swollen lip, the women insisted that there had only been a verbal argument only. When an officer asked to enter the apartment to speak about the incident, the woman denied the officer admission and instead stepped outside the apartment and closed the door.

Believing that there was armed person inside the apartment, the woman was escorted downstairs. She was uncooperative and evasive when asked whether anyone else was in the apartment. Officers then suspected that the woman may have injured the man. The decided to enter the apartment but waited for the arrival of a unit with a ballistic shield. During this delay, no effort to obtain a search warrant was made.

Officers entered the unlocked apartment and after some time, White appeared and was taken into custody without incident. Officers conducted a sweep of the apartment looking for other occupants and, in the process, saw drug paraphernalia in plain sight. Based on this observation, they obtained a warrant and found both cocaine and heroin.

White’s motion to suppress was denied by the circuit court, which found that the initial entry and sweep of the apartment was justified by exigent circumstances. On appeal, the Court of Appeals looks at the evidence to determine whether the evidence as a whole supported the circuit court’s determination that the exigent circumstances exception to the 4th Amendment’s warrant requirement applied. The discussion, making up 14 of the opinions 22 pages is exhaustive (and a little exhausting to read). I recommend it to anyone wanting a thorough primer on the subject.

However, I am going to take the Court to task for not simply ending the analysis based upon one obvious fact — if the officers had time to request and wait for the ballistic shield, they also had time to get a warrant. In fact, the opinion makes it plain that once they determined the need for the warrant to search beyond items in plain view, they call for and obtained a warrant without difficulty. There, how long did that take me? Not 22 pages, that’s for sure.

The headline mentioned lightning striking twice, but the summary of White said it was the sole published opinion. That’s because the second criminal reversal comes in an unpublished opinion. Samuel Leon Burgess v. Commonwealth of Virginia is being review following a remand by the Supreme Court of Virginia, which found that the Court of Appeals’ prior finding that Burgess had waived his argument that evidence in his trial for will failure to appear had been waived. Addressing the merits as to one of the FTA charges (the only one being challenged), the Court of Appeals concluded — or, rather, recognized that the Supreme Court had “intimated in its remand order” that Edmonds v. Commonwealth, 43 Va. App. 197 (2004), was controlling and mandated reversal of the conviction. Simply put, the record showed that no one ever testified that Burgess had been advised of the date of trial at which he failed to appear. Although there may have been some indication in the court file that Burgess had notice, and the prosecution in both the present case and in Edmonds advised the court that it could take judicial notice of this evidence, there was simply no indication that the court did so.

“Intimate,” as a verb, means to imply or hint, but more rarely can mean to state or make known. As a noun, of course, it has a more personal and delicate meaning and different pronunciation. The remand order in this case was unpublished but is available on the Court’s website. I would say that the order did a great deal more than “intimate” that Edmonds applied unless used in the more infrequent sense as the Court pretty cleared stated and made known that this case needed to be reversed. That’s hitting the Court of Appeals in a fairly intimate place.