Last week the Court of Appeals issued a single opinion and then two more today, and while the Commonwealth was the appellee in all three, only to are appeals from cases in which the defendant was convicted of a crime. Let's start with one of the criminal cases -- the one that resulted in a reversal: Jesse Ryan Hackett, s/k/a Jessi Ryan Hackett v. Commonwealth of Virginia. Code § 18.2-460(E) makes it a Class 1 misdemeanor to knowingly flee from a law-enforcement officer attempting to make a lawful arrest, but only if the officer “applies physical force to the person” or has “the immediate physical ability to place the person under arrest.”
This case deals with the latter potential. Hackett was subject to arrest on a felony warrant and a Lynchburg police officer drove to a residence where he hoped to find him and parked at the end of the street. Hackett was indeed at the residence, in fact he was standing right out front. As the officer approached and was about 20 to 25 yards away, the two made eye contact and Hackett took off like a jack rabbit that startled a rattlesnake. Well, except this was in Lynchburg, not Texas, and it was January, and it was snowing, but you get the idea. Hackett managed to elude police (including backup) for about an hour, when the original offer spotted him from about 50 yards away and Hackett again did a jack rabbit (or perhaps he did a snowshoe rabbit) when the officer commanded him to "stop."
When Hackett was finally apprehended sometime later, in addition to the felony already charged, he was charged with violation Code § 18.2-460(E), apparently by direct indictment because there was not trial in the general district court. At the trial on that charge, Hackett moved to strike at the close of the Commonwealth's evidence, asserting that the officer never had the "immediate physical ability" to arrest Hackett. The circuit court denied the motion and Hackett appealed.
As the lede told you that this was the reversal, you know what is coming. The Court of Appeals, Judge Raphael joined by Judge Friedman, with Judge Fulton concurring separately, found that the officer was never more than 20 yards close to Hackett and at that distance, the officer was not in a position to place Hackett under arrest, no was the verbal command to stop from 50 yards away relevant, because while the statute includes a provision that the officer communicates to the person that he is under arrest and "a reasonable person who receives such communication knows or should know that he is not free to leave," that provision is stated in the conjunctive with "the officer has the legal authority and the immediate physical ability to place the person under arrest."
Judge Fulton's concurrence is based on his disagreement with the majority that the defendant must be within the "immediate span" of the officer control -- a term, which he notes, the majority does not defined -- but he agrees that however close the officer has to be, 20 yards is too far.
An important distinction in this case and the offense of "escape from custody" is that the latter offense requires the defendant to be in actual custody before fleeing. In that scenario, the distance between the defendant and the officer at the time of flight is irrelevant, because one you have been detained -- whether physically or by submission to authority -- you cannot go unless and until the officer (or the court) says you can, and fleeing anytime before that is escape even if the nearest officer is in the next room . . . or the next county.
The second criminal appeal, Timothy Miles, s/k/a Timothy L. Miles v. Commonwealth of Virginia, is also 2-1-0 appeal, which may explain why it is published. A jury convicted Timothy Miles of six counts of unlawfully discharging a firearm in an occupied building, in violation of Code § 18.2-279, reduced from maliciously discharging a firearm in an occupied building, and acquitted him of attempted capital murder of a law enforcement officer and use of a firearm in the commission of that felony. All in all, not a bad result.
But Miles what not satisfied. According to him, there were not six separate offenses, because he fired six shots randomly and rapidly in succession, making it a single act of "firing." That's a creative, but not unreasonable argument. However, Miles was not done. He also argued that the building was not occupied because the only other person in the apartment was the officer investigating a prior report of shots fired, and the officer was not an "occupant" of the apartment. The capital murder charges arose out of the officer being wounded by one of Miles' "random" shots. And that was not even his most creative argument. Miles also argued that because the jury was not properly instructed on criminal negligence, he was convicted of a "non-offense" of "heat-of-passion discharge of a firearm."
This very creative argument was addressed first by the majority, Sr. Judge Haley joined by Judge Ortiz, which found that while Miles raised this issue after the verdict, he in fact had agreed to the jury instruction that he subsequently claimed permitted the jury to convict him of a "non-offense." The majority said that this was approbating and reprobating, and the objection was untimely besides, and the ends of justice did not require them to forgive either of these sins. Judge Chaney concurred, saying there was no need to procedurally bar the argument because Miles' assertion that the jury convicted him of the "non-offense" was so much buncombe, and the jury was properly instructed.
As to the slightly less creative, but still creative argument, that the officer was not an "occupant" of the apartment, the Court states that in this context "occupied" means that another human is present, and has nothing to do with the right to occupy. Similar the most legitimate issue -- is six shots rapidly fired a single offense of firing -- is on of practicality, Regardless of how rapidly Miles pulled the trigger, he had to pull it six times. The six actions of discharging the firearm. One supposes that this leaves open the question of what the Court would do if a defendant had a submachine gun set to full auto and empty the clip in a single action.
The final case, the one released last week, is Nigel Elliot Walker v. Commonwealth of Virginia, and as explained, does not involve a conviction. Walker was acquitted, in 2016, of first degree murder upon a finding that he was insane at the time of the offense. Walker was duly committed to Central State Hospital and responded well to treatment. In 2020, Walker was released to a transitional living facility in what is know as a conditional release.
In 2022, Walker was recommended for independent living. He would still be subject to certain conditions and monitoring, but he would essentially be living in the community without restrictions. The Commonwealth opposed the plan. The Court of Appeals, Chief Judge Decker joined by Judges Maleveaux and Causey, has recited the evidence and argument presented in the circuit court on both sides, and frankly, its a very close case. The circuit court was clearly sympathetic to Walker and his recovery, but ultimately found that the continuing danger to the public and the nature of the underlying offense, weighed against permitting Walker to be permitted to live independently at this time.
The Court affirmed this judgment, primarily because it ultimately to the circuit court exercise of its discretion. As in so many instances, an appellate judge may have exercised that discretion differently, but that does not make the trial court's actions abusive.
On average, person acquitted by reason on insanity are not eligible for full release without any monitoring for many years after the are allowed on community release. Typically, the average time in confined custody is 5 years, but this is skewed by those acquittees how do not respond (or refuse) treatment and, thus, are never released. Walker is clearly ahead of the curve, but I cannot find fault with the Court of Appeals affirmance of the trial court's caution. Walker will be eligible for future reviews and, undoubtedly, if he continues to respond well to treatment and maintain his compliance with the terms of his release, he will eventually be granted more freedom.
While you, dear reader, ponder the meaning of the second half of the headline, let me first address the Rehearing Granted today in Katie Orndoff v. Commonwealth of Virginia. This case was decided back in June and discussed in this space. The case involved a victim-witness who felt the need for some smoked courage (then still not legal) before testifying and incurred the summary contempt wrath of the judge for being intoxicated in his courtroom. The majority found that the circuit court lacked sufficient evidence to support the summary contempt finding, while the dissent felt that the witness's behavior on the stand was sufficient to prove her intoxication. Separate and apart from the legality of the contempt finding, the judge has suffered the wrath of public opinion for what was viewed as disrespectful treatment of a victim who was being made to face her accuser in a domestic battery case. The full court will now review the conviction.
Now on to today's one published decision and the aforementioned Gauntlet Dropping. The Sage of Virginia Beach, Steve Emmert has advised that he intends to invade "my" territory of the Court of Appeals Blawging (actually he informed me and another Blwager who also reports on the VCA, so perhaps I should say "my shared territory") in order to discuss Blue Pearl Veterinary Partners, LLC, et al v. Kristine Anderson. Now to be fair, Steve did offer us the first bite at the apple before he weighed in, which was quite decent of him.
More to the point, when the Court of Appeals jurisdiction was expanded, I suggest that he continue to review the civil cases while I would focus on the criminal, domestic and administrative ones. He declined, graciously, saying he would continue to confine himself to the opinions of the Supreme Court of Virginia, but I think may be having second thoughts given the paucity that court's recent output, so I cannot begrudge him the opportunity
At any rate, I recommend his Blawg, Virginia Appellate News and Analysis to you and look forward to his own take on Blue Pearl. But he did offer the challenge of first effort to me, so let's dive in, shall we?
If you have seen Miracle on 34th Street -- the original form 1947, at least -- you will recall the scene in which Mr. Gailey (the marvelous John Payne from Roanoke) recites certain facts about the post office "for the record." Well, let me recite some facts "for the record":
Pet ownership in the U.S. has jumped significantly over the past three decades. As of 2023, 66% of U.S. households (86.9 million homes) own a pet That’s up from 56% in 1988, pet ownership statistics show. From companionship to emotional support, pets are a vital part of their owners’ lives. In fact, 85% of dog owners and 76% of cat owners consider their pets to be a member of the family. Dogs are the most popular pet in the U.S. (65.1 million U.S. households own a dog), followed by cats (46.5 million households) and freshwater fish (11.1 million households).
In 2022, Americans spent $136.8 billion on their pets, up 10.68% from 2021 ($123.6 billion). Dog owners spend an average of $730 a year on their dogs. While the love of a pet is priceless, the cost of owning one is not. Veterinary care, grooming, food, treats and other outlays can add up quickly. For example, a Forbes Advisor survey of more than 5,000 U.S. dog owners found that 41% of dog owners spend between $500 and $1,999 a year on their dogs and 8% spend more than $2,000. Dog owners spend the most on veterinary care ($367 per year), food ($339 per year) and grooming ($99 per year).
Why have a recited these facts for the record? Because this case is about what a dog is worth. Ask any dog owner what their pet is worth and they will say "you cannot put a price on love." I offer this:
“The gift which I am sending you is called a dog, and is in fact the most precious and valuable possession of mankind.” — Theodorus Gaza, 15th Century Greek Humanist
But the folks at Blue Pearl can ask the court to put, or rather limit, the value of dog that was injured as a result of the negligence of one of their employees. You see, the dog had two of its legs crushed during an MRI procedure and extraordinary measures were needed and will continue to be needed to care for the animal. In suit to recover these damages, Anderson sought $6,782 for “necessary treatment and evaluations.” She also sought between $108,855 and $119,055 per year for the remainder of the dog’s life for “adequate and necessary rehabilitative care,” including electronic stimulation, shockwave therapy, ultrasound therapy, laser therapy, underwater treadmill, platelet rich plasma therapy, and stem cell therapy. Blue Pearl filed a motion in limine to exclude “any evidence or suggestion of veterinary expenses in excess of $350.00,” the amount Anderson paid for the dog.
The court acknowledged that damages for injury to personal property typically are “confined to the diminution of the value of the property” and any “reasonable and necessary expenses incurred.” Nevertheless, the court ruled that certain veterinary treatments exceeding the dog’s value could be “reasonable and necessary expenses.” The court further found that determining which expenses were in fact reasonable and necessary was a question for the fact finder. The court certified that this question was subject to an interlocutory appeal under Code § 8.01-675.5(A).
Today the Court of Appeals affirmed the judge's ruling. Judge Athey, joined by Judges Causey and Friedman, recognizes that pets, however beloved, are personal property (the readers of Dog Fancy and Cat Fancy are probably seething at this suggestion), and as such a cause of action for injury to chattels cannot include “damages for emotional distress resulting from negligently inflicted injur[ies]" (more seething from Friends of the ASPCA). This does not mean, however, that recoverable damages cannot include veterinary expenses that exceed the diminution in the dog’s fair market value, which the Court observes is an issue of first impression in Virginia.
Blue Pearl notes that “the general rule for determining . . . damages for injury to personal property is to subtract the fair market value of the property immediately after the loss from the fair market value thereof immediately before the injury, the remainder, plus necessary reasonable expenses incurred, being the damages.” (Emphasis added mine, which I will explain shortly).
The Court agrees that this is generally the measure for damages to personal property . . . but it is not the only measure. Rather, there are “sundry rules for measuring damages" which "are subordinate to the ultimate aim of making good the injury done or loss suffered and hence ‘[t]he answer rests in good sense rather than in a mechanical application of a single formula.'" When the property has no ascertainable market value or where such value is "manifestly inadequate,"' some other measure of worth must be applied. (Cheering from The American Kennel Club).
Relying on a 1904 case from Massachusetts and an even older treatise, the Court concludes that Blue Pearl's proposed limitation to diminution in market value was overly mechanistic and that the Court properly denied the motion in limine. At trial (technically, not "on remand" because this is an interlocutory appeal), Anderson will still have the burden of proving that the six-figure annual costs of care are reasonable an necessary, but she should have that chance.
Now, back to my emphasis in the paragraph above. Blue Pearl argued that damages in the case included necessary reasonable expenses incurred. Well, isn't that exactly what the trial court ruled? So, I am left to wonder what Blue Pearl was trying to accomplish by not sticking to its guns that the damages were limited to the animal's purchase price and nothing more? I am not sure that the Court shouldn't have seized on this statement as a concession and affirmed on that basis.
The Court of Appeals was silent for the last two weeks and was closed for Independence Day yesterday, the "usual" opinion day, so it was something of a surprise to see two new published opinions today. In a reversal of a criminal conviction in Renee Michelle Parady v. Commonwealth of Virginia, the Court makes a very important distinction about what will justify a warrantless search. The facts are not unusual. Parady was a passenger in a truck that was lawfully stopped because it had tags that were registered to a different vehicle, which is a suspicious circumstance.
The next suspicious circumstance was that the driver had an outstanding capias. Arrested on the capias and searched incident to that arrest, no contraband was found. But around the same time a drug-sniffer dog alerted on the passenger side of the vehicle where Parady was sitting. A third passenger was a known confidential informant and in a conversation with one of the officers she indicated that the source of the scent detected by the dog was an item secreted in a private area of Parady's clothing.
Parady denied having any contraband, but a patdown search suggested that there was some foreign object in the said personal area. The officer demanded that Parady produce the object, which turned out to be a small case containing several pills.
Now, before we get to the search and seizure issue, the Court advises us of a peculiar circumstance. The police did not formally arrest Parady at the time. Apparently the police wanted to assure themselves that the secreted pills were contraband and not, well, vitamins?
At any rate, when the pills provide to be an illegal narcotic, Parady was arrested. Here attorney filed a motion to suppress the fruits of the search as unlawful due to the lack of a warrant. The circuit court them made a curious ruling -- while finding that it was "ludicrous" for the Commonwealth to maintain that the police could not have controlled the situation while a warrant was obtained for a search, the court nonetheless found that the search was valid because the officers had "probable cause."
Those of you who remember first year criminal procedure can see where this case is going. The Court of Appeals, Judge Lorish joined by Judges Beales and Fulton, reverses, reminding everyone (but especially the trial judge, one suspects) that "probable cause" is the basis for obtaining a warrant, not for dispensing with the need for one. The Court also rejects the Commonwealth's "right result, wrong reason" arguments that the search was "incident to an arrest." Parady was detained by the search, but not placed under arrest before the search or, indeed, not for two weeks after the stop.
The other opinion today is from a civil case. In Michael Brown v. Timothy L. Kirkpatrick, involves a tender of UIM coverage from the insurer of Brown, an injured party in an automobile accident. Brown's insurer had waived its right of subrogation and tendered its UIM policy limits with the understanding that Kirkpatrick's insurer would defend the suit. The case proceeded to trial with Brown being awarded $286,000 against Kirkpatrick.
Brown receive the policy limit of $50,000 from Kirkpatrick's insurer and $286,000 from his own carrier for UIM coverage. However, Brown declined to agree to have the judgment marked as satisfied, asserting that the waiver of subrogation by his carrier should enure to Kirkpatrick's benefit. In other words, Brown contended that even if his carrier did not want to pursue Kirckpatrick to cover the $236,000 it paid under Brown's coverage, Brown was entitled to go after that money. The circuit court disagreed and Brown appealed.
The issue on appeal is whether the Collateral Source Rule of Llewellyn v. White, 297 Va. 588, 599 (2019), which held that where the UIM carrier settles with the plaintiff, the tender of policy limits does not enure to the benefit of the defendant who remains liable to the tortfeasor for any judgment, applied to cases where the UIM carrier settles with the defendant.
In a split decision, the Court of Appeals (Judge Humphreys joined by Judge Lorish) rules that UIM coverage is always collateral where subrogation is waived. Judge Huff dissents, reasoning that the waiver of subrogation in an agreement with the tortfeasor and his carrier is decidedly different from the situation in Llewellyn.
I won't say much about the merits of either position as I am certain that an en banc and/or a review by the Supreme Court will follow. I am in sympathy with Judge Huff, as it appears that Brown is getting a double recovery. When the UIM carrier settles with the plaintiff, there is a real possibility that the plaintiff won't bother to go after the tortfeasor, who may have little or no insurance and no means to pay a judgment. Moreover, such a settlement include other benefits to the carrier and the insured. Here, all the UIM carrier did, in effect, was to ask the defendant's carrier to put on a defense.