Updated: May 3, 2023
The Court of Appeals issued only one new published decision today, but it is a doozie. If you noticed the italics in the lede, you have probably guessed that there were other published decisions – just not “new” because they are both from en banc rehearings. Since these can be made short shift of, let’s start with them first, shall we?
First up is Bradford T. Cellucci v. Commonwealth of Virginia, which is a rehearing from an unpublished decision all they way back in May of 2022. In that case, a divided panel, with Judges Ortiz and Causey in the majority and Chief Judge Decker dissenting, reversed the trial court’s decision to not modify pursuant to Code § 19.2-303 a sentence of life imprisonment and the maximum fine of $100,000. While conceding that Cellucci’s offense, in which he savagely attacked a romantic rival leaving him permanently paralyzed, was “horrific,” the majority found that the circuit court failed to consider all of the evidence on the motion to reconsider, and thus, did not comply with the procedural requirements of Code § 19.2-303 and further erred in stating that Cellucci presented no mitigating evidence, when he had, in fact, presented substantial evidence in mitgation. Chief Judge Decker found that the majority was misreading the record, and would have found that the judge merely meant that Cellucci presented no mitigating evidence sufficient to overcome the horrific nature of his crime.
Today, the en banc Court adopts Chief Judge Decker’s view from the panel. She is joined by Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Friedman, Chaney, Raphael, Lorish, and White. Judge Ortiz is again joined by Judge Causey along with Judge Callins dissenting. I will comment briefly to say that while the dissent might be pardoned for thinking that the maximum punishment here was possibly excessive, the sentence was a matter within the circuit court’s discretion, and the majority was correct to read the court’s detailed letter stating its reasons for not reducing the sentence in a light favorable to upholding the sentence. With a 14-3 decision, I would not expect an appeal to be granted by the Supreme Court if Cellucci petitions for one.
The other en banc decision, Robert Lee Jeffrey, Jr., v. Commonwealth of Virginia, is not from a prior opinion, but from a review of a denial of post-conviction bond pending appeal brought on motion under Rule 5A:2. That motion was granted in a 2-1 decision last October, but before the case was remanded for setting of bond (or at least reconsidering the denial of bond) the Commonwealth sought a rehearing and received one. Because the original order was not published (bond review motions rarely warrant publication), we don’t know who the judges were that through the circuit court was in the wrong, but what we do know if that today all 17 judges sign on to the order denying the motion. Of course, this does not mean that all 17 agree, it may just be that those that do not are in “silent dissent.” What it comes down to is this: the judge denied post-conviction bond because he found that Jeffrey was a “financial predator” who preyed on nonprofit organizations and the City of Roanoke, and a three-time convicted felon, who would “endanger the community at large.” As with the Cellucci case, it is very likely that at least some of the judges of the Court of Appeals were doubtful that they would have found Jeffrey to be all that much of a danger – he’s a politician who got caught with his hand in the cookie jar and, one would hope, has learned his lesson. However, the issue in reviewing a denial of post-conviction bond is not whether the Court of Appeals would have exercised the discretion to do so differently, but whether the judge in this case abused his discretion. The Court concludes that he did not.
Now to the “swamp” referred to in the headline. Anyone familiar with automobile liability insurance knows that for the coverage to apply, one must be “using an insured vehicle as a vehicle.” Typically, this is not difficult to determine because at the time of the vent that triggered a request for coverage from the insured, someone was driving the vehicle, or boarding or alighting from a vehicle, both being necessary acts for using the vehicle to get from place to place.
On the other hand, there some “uses” that clearly fall outside the concept of using a vehicle as a vehicle. For example, if I drive my car onto my lawn next to my house, then climb on the roof to clean my gutters, and I fall off the roof while doing so, I am not going to get much love from a court when I claim that “step ladder” is an intended use of my sedan.
Then there is the swamp. I do not use that term lightly because one can wade for days in the cases that have to decide when a use is consistent with the function of a vehicle as a vehicle searching through murky opinions, dank concurrences, and oozy, dripping dissents. Until 2022, this untamed bog was the province of the Supreme Court of Virginia, but as of today, the Court of Appeals has weighed in with its opinion in United Services Automobile Association v. Bruce A. Estep, and given that like the panel opinion in Cellucci and the panel order in Jeffrey, it’s a 2-1 decision, I feel certain it is destined for an en banc and possibly a trip to the Ninth Street side of Grace Street.
On November 20, 2016, Estep and his wife checked out of a hotel in Fairfax County. Estep began loading his bags into his car preparing for a return to his home in Chesapeake. He intended to return the luggage cart to the hotel lobby once the car was packed. Estep was “leaning into the rear of the vehicle, bent over at the waist and reaching into the vehicle, such that his body was in the vehicle from the waist up” when a gust of wind set the luggage cart he was utilizing in motion. The luggage cart struck him on his right side, causing him to fall to the ground. The injuries he sustained were serious.
That’s it. Those are the facts. Now, you be the judge. Was Estep “using” the vehicle as a vehicle? I will give you some time to think about that, and provide “spoiler space” with this video of another travel related SNAFU involving luggage.
Have you made up your mind – is Mr. Estep covered by his automobile liability policy for his injuries? If you answered yes, Judge Friedman, joined by Judge Causey agrees with you. You naysayers will have to find solace in Judge O’Brien’s dissent.
Before getting to the whys and wherefores, an interesting note about the standard of review. Because the facts were stipulated to, the Court of Appeals gives no deference to the circuit court’s application of those facts. Rather, the Court of Appeals is, in effect, reweighing the evidence because just like when it reviews a contract or other written document, it is in a equal position to the circuit court to interpret the meaning of the written stipulations. There is no credibility determination to make because there is no witness whose shift eyes or nervous ticks would give the circuit court pause before ruling in his favor.
Estep argued his accident arose out of the use of his car “as a car” because he suffered his injuries while he was packing the vehicle before an imminent road trip. USAA in turn claimed the accident did not arise out of “use” of the car because there was no causal relationship between loading the trunk with bags and the luggage cart hitting him, as Estep could have been struck by the runaway luggage cart regardless of his proximity to the vehicle.
The majority concludes that “transporting luggage is a valid and expected use of a vehicle, and one cannot transport the baggage without first packing the vehicle.” Therefore, whether Estep might have been hit a rolling baggage cart under some other circumstance is irrelevant. In this case, he was struck by the luggage cart while he was using it to assist in an “expected use” of the vehicle. The majority goes on to note that USAA cannot win by asserting that Estep was not occupying the vehicle or that the vehicle was not being used, but was merely the “situs” of the accident. As already mentioned, boarding or alighting from a vehicle constitutes an expected use and these occur before or after the vehicle has actually transported the individual.
The dissent agrees with the majority that Estep was occupying the vehicle at the time of his injury, but concludes his injuries did not result from an accident arising out of the use of his vehicle. This, Judge O’Brien concludes, was because “the cause of the Estep’s accident—the wind blowing the luggage cart into him—was ‘merely incidental or tangential’ to his use of the vehicle.”
I would point out that the majority’s logic would apply just as well if Estep had been struck by another vehicle while loading his car, and I wonder if this fact would have altered Judge O’Brien’s view? Consider this, suppose I have a vehicle with lift-gate like Estep’s, but instead of putting luggage in it, I put my brother-in-law – not so much because the other seats are occupied, but because he is inveterate back-seat driver and wish him to be as far from the front as possible, but I lack the necessary restraints to place him on the roof rack. I think that if he were struck by a car while boarding or alighting from the vehicle, we would clearly say that he was using the vehicle as a vehicle, because this is no different than being hit when using a more conventional manner of vehicular ingress and egress.
Now, suppose that along with my brother-in-law, I am also putting some luggage (it’s a big cargo space) and the cart is blown by the wind and strikes him. Would this be a different case for Judge O’Brien? Probably not.
What if he were struck by a runaway luggage cart that had been left in the parking lot by another hotel guest – certainly under Judge O’Brien’s reasoning, this would be even more “incidental or tangential,” but would the majority still find coverage? What if the wind blew down a tree that struct the lift-gate which then struck Mr. Estep? What if the tree struck him directly?
See? A swamp.
[Editor’s note: the final case summarized today is probably the one that will be most relevant to the general practice of law as it involves the application of Virginia’s “longarm statute” for purposes of establishing personal jurisdiction over out-of-state medical providers in a wrongful death suit – it’s just not as much fun as the first three, but if you prefer to get to it fast, feel free to skip to the end.]
The Court of Appeals released four published opinions this week, one of which should have attorneys generally, and Commonwealth’s Attorneys especially, saying “that was a close one.”
Or rather, not really a close one at all. Nickolas G. Spanos v. Shannon L. Taylor is an appeal by a pro se appellant with a colorful history in a misspent youth and more recently a crusader for truth as “President of Exposing Corruption in Virginia's Justice System” according to his Linked-In page. Since 2020, Spanos has filed 13 appeals in the Court of Appeals against various persons including Sr. Judge John Gibney of the Eastern District, 15th Circuit Court Judge Joseph Ellis, Assistant Attorney General Brittany McGill, and Richmond attorney Howard Vick who about 35 years ago had a run in with Senator (and disbarred attorney) Joseph Morrissey in a case with strikingly similar facts to the present one involving Shannon L. Taylor, the Commonwealth’s Attorney of Henrico County – there were two other cases filed concurrently against attorney Michael Feinmel, who is the Henrico County Deputy Manager for Public Safety, the appeal of which was dealt with by an unpublished opinion, and Henrico Circuit Court Judge Lee Harris, the appeal of which seems to have gone astray (but never fear, because Judge Harris, along with Taylor and Feinmel and others, is the appellant in three other cases filed by Spanos).
So, the first thing you need to know about this case is that Spanos filed his action against Taylor in the Circuit Court of Louisa County. While the opinion does not go into the reasons for this, one can speculate that Spanos did not want the case being heard in the same circuit in which Taylor regularly appeared, and where Spanos has filed 8 of his suits, so far all without success.
The next thing you need to know is what Spanos wanted the circuit court to do, which was to consider a legal ethics complaint against Taylor and “to revoke [Taylor’s] license(s) [to] practice law in the Commonwealth of Virginia, or discipline [Taylor] consistent with the laws of the Commonwealth of Virginia.” Taylor demurred to the complaint, asserting that matters of attorney ethics and licensure was an exclusive province of the Virginia State Bar, and the circuit court could not grant the relief requested. The circuit court granted the demurrer and the Court of Appeals, Judge Friedman joined by Judges Beales and Callins, affirm.
I am not going to get into the weeds of Spanos’ contention that any person has standing to seek discipline of any attorney in any court of the Commonwealth in an original action – that is not as part of a case already before the court. Suffice to say that the 14 pages the Court devotes to painstakingly explain why this is not so was probably necessary, but still more space than Spanos should have been entitled to.
So the good news is that attorneys will not have to defend against citizen-initiated suits in the circuit courts seeking their disbarment. The bad news is that Spanos is not done yet, as he has cases pending in at least three jurisdictions against Taylor, Harris, and many others.
Moving on to something only slightly less tiresome, KSS One, LLC v. Henrico County, Virginia, Board of Supervisors of Henrico County, et al. also involves a demurrer. In this case, the action brought by KSS One, LLC was an attempt to overturn a circuit court order finding that KSS failed to state a cause of against the County, its governing body, and several others, in seeking to stop the construction of a childcare center on an undeveloped parcel that was part of an office condominium park. Although originally approved back in 2004, the project was slow to be developed, but by 2020, six of the eight parcels in the park had been developed, with a seventh underway. The original development plan had included a childcare center as a possible use, but none of the parcels had been developed for that purpose. KSS was the owner on one of the developed parcels.
What happened next has an interesting twist thanks to the COVID pandemic. In 2020, the county manager for Henrico County also declared—and the Board of Supervisors confirmed—that a local emergency existed “because of the COVID-19 pandemic.” On April 15, referencing the continuing emergency, the Board of Supervisors adopted a ordinance delegating to the planning director the authority to “approve plans of development during the Emergency.”
While the planning director was vested with this power, the owner on the last remaining parcel sought approval to build a childcare center – a use approved back in 2004. After some negotiation with the planning staff and some adjustments for parking and the like, the director approved the plan.
This did not sit well with KSS and some of the other condominium tenants. The opinion does not go into why, but presumably it had to do with the increased traffic, noise, and safety issues, and not merely out of an intense hatred of toddlers. Or at least one hope not.
The most interesting of the reasons KSS advanced for the approval of the childcare center being improper was that the delegation of the power to approve development plans to the director was improper because he was thus vested with the power to decide issues in which he was also acting as an “advocate.” The theory was that since his department was responsible for negotiating with the developers, the Board of Supervisors’ ceding to him the power to approve the development plans was not kosher in terms of due process. KSS also alleged that it was being deprived of a vested right, though I was somewhat baffled by exactly what those rights were supposed to be, since the childcare center had been part of the original plan.
The Court of Appeals, Judge Raphael joined by Judges Chaney and Callins, affirms the circuit court’s sustaining of the County’s demurrer. This opinion is only slightly longer than the opinion in Spanos v. Taylor, but somewhat more deserving of that space.
We finally get something with some real law in Shaquawn Demonte Warren v. Commonwealth of Virginia. There are two issues in this appeal, and the first involves a topic of interest of late – the restoration of civil liberties after conviction of a felony. In this instance, the issue arises with respect to whether a venireman was eligible to serve on the jury in this DUI trial. The prospective jury told the court that he had been convicted of felony DUI, but that his civil liberties had been restored and he had voted in several elections since then. However, the Virginia Criminal Information Network did not show that his rights had been restored.
The Commonwealth moved to strike the juror for cause, contending that the evidence was equivocal as to whether he was eligible to serve as a juror. The defense objected, arguing that the juror’s name was on the voting rolls, indicating that his rights had been restored. After checking another database and not finding evidence that the juror’s rights had been restored, the court struck the juror for cause.
After the jury was seated, but before the trial began, the Commonwealth moved to exclude evidence from Warren to support a defense of necessity. According to Warren, when he was stopped by police for going 96 in a 60 and erratic driving, he was “frantic” because he had learned that his cousin had been shot and was rushing to get to him and take him to a hospital. The circuit court granted to motion to exclude the evidence.
We pause now to address the “defense of necessity” with respect to speeding. It is indeed true that Virginia does recognize a defense of necessity to speeding – but contrary to the dozens of attorney websites that come up when you Google® “defense of necessity speeding Virginia” it is rarely successful. The reason is simple – if you have a legitimate emergency that warranted driving at an excessive speed (but otherwise safely), most officers will give you a lights and sirens escort to your destination, not a ticket.
Warren was duly convicted and appealed these two issues. The Court of Appeals, Judge Humphreys joined by Judges Atlee and Raphael, affirmed. The juror qualification issue was committed to the sound discretion of the trial court, which observed and heard the venireman’s statements. While the court affirmatively stated that it believed the venireman was being truthful with respect to his belief that his rights had been restored, the equivocal evidence was sufficient to give the court a valid reason to exercise its discretion and excuse the juror for cause.
The discussion of the necessity defense issue was more nuanced. While acknowledging that the court is typically given deference on questions of the admissibility of the evidence, in this case the evidence was being proffered as an affirmative defense, and the accused is entitled to bring evidence in his favor. Thus, the Court had to consider whether Warren’s proffered evidence supported a necessity defense.
Necessity as a defense asserts, in essence, that the defendant was forced to choose between the lesser of two evils where obeying the law would result in some greater harm than if the law were broken. A classic example is breaking into a burning house to rescue a child trapped inside. Technically, breaking and entering is a crime regardless of your reason for doing so, but the harm of letting a child burn to death exceeds the injury of unauthorized entry to an occupied dwelling.
Without specifically ruling that necessity can be a defense to DUI, the Court concludes that Warren’s proffered evidence did not meet the standard for a necessity defense in that there were “other adequate means to avoid” the anticipated harm – for example calling 911. Warren had testified that he feared it would take an ambulance too long to reach his cousin. However, as he was traveling from Newport News to Chesapeake, a 37-mile drive, this was not credible according to the circuit court, and the Court of Appeals agreed.
Finally we reach the opinion that was hinted at in the leading editorial note: Katherine Louise Carter, Exec. etc. v. Wake Forest University Baptist Medical Center, et al is a tragic story of the failure to detect a cancer until it was too late. The decedent was treated in both Virginia and North Carolina, and at times he or his daughter conducted “virtual” visits with the North Carolina Providers. Following her father’s death, Carter qualified as executrix and brought a wrongful death action against both the Virginia and North Carolina providers. The latter argued that there were not sufficient “minimum contacts” to allow Virginia to exercise jurisdiction over them. The circuit court agreed and dismissed those defendant’s from the suit.
The Court of Appeals, Judge White joined in her first published opinion by Judges Huff and Athey, affirm. I think that a lot of people will take issue with this result, but after reading the opinion I came away with some serious doubt as to whether it would be wise to allow one state to reach across its borders to haul medical providers into its courts, at least where, as here, the doctor-patient relationship originated in the foreign jurisdiction. Judge White’s opinion is also commendable for its brevity and succinctness. Student’s of CivPro should definitely give this opinion a careful read.
[Editor's note: After speaking to one of the attorney's involved in Carter, I am again leaning in favor of the appellant -- I think this case may be destined for a review in Supreme Court of Virginia. I think we need to acknowledge that technology generally, and COVID specifically, has altered the practice of medicine and other businesses and professions and our jurisprudence has to recognize this may mean changes in how we consider long-arm jurisdiction. It has also been suggested that the brevity of the opinion may not be entirely appropriate if the statement of facts was not fairly recounted . . . time will tell.]
The Court of Appeals released three published opinions today. The first of these involves an increasingly common phenomenon of a woman meeting a person through a “dating app” and ending up the victim of a violent sexual assault. In every generation, there seems to be a new way to “hook-up” – bars in the 60s, discos in the 70s, pool halls in the 80s, coffee shops in the 90’s, clubbing in the 00s, and now dating apps. While most encounters in these other settings did not lead to sexual assault, the premise of the dating app seems almost tailor-made for the sexual predator.
In Akeem Alee Calokoh v. Commonwealth of Virginia the defendant and the victim connect through an app called “Scout” and Calokoh asked the victim if she wanted to “chill.” Although he said that it was not looking for a sexual encounter, he also said that the victim could spend the night with him. The victim, who lived in West Virginia, agreed to meet Calokoh at his home in Fairfax County. The visit resulted in the victim being raped in a wooded area. These facts are not disputed on appeal. Rather, Calokoh argues that the circuit court erred in not permitting him to introduce school records to support his claim that he is intellectually disabled and could not have formed the requisite intent to commit rape. This case thus gives us a first look at how the Court of Appeals will address claims raised under the new mental health evidence statute, Code § 19.2-271.6.
At trial, Calokoh sought to introduce the records through the testimony of a psychologist who testified about Calokoh’s developmentally disability as reflected in the record. The circuit court sustained the Commonwealth’s objection that the majority of the records was irrelevant and mostly hearsay.
Calokoh contended that Code § 19.2-271.6 permitted him to introduce evidence of his developmental disability and that it provided him with an affirmative defense which required the Commonwealth to prove that Calokoh “knowingly and intentionally” acted against the victim’s will and without her consent. The circuit court declined to amend the model jury instruction on the elements of rape, but did instruct the jury on Code § 19.2-271.6, giving two instructions proffered by the Commonwealth and rejecting three proffered by Calokoh.
The jury sent a question of to the court asking whether it could consider the evidence of intellectual disability with respect to finding whether the victim consented. The court responded that the jury should consider intellectual disability only with respect to whether Calokoh formed the intent to commit rape, not whether the victim consented.
With respect to the admission of Calokoh’s school records, the Court, Judge AtLee joined by judges Humphreys and Huff, affirmed. Because evidence of Calokoh’s developmental disability had been introduced through the psychologist’s, admission of the records, which were mostly irrelevant and consisted of hearsay, was not improper. However, this is the tail wagging the dog, as this opinion is the first to address Code § 19.2-271.6 and, thus, is a must-read for criminal defense attorneys (and prosecutors).
The Court today holds that Code § 19.2-271.6 did not create an affirmative defense. It is an evidentiary rule that abrogated the common law regarding presenting mental health evidence to show lack of the ability to form the requisite intent to commit an offense. Thus, when evidence is presented that the defendant suffers from some form of mental disease or defect, this is fact evidence for the jury to weight with respect to whether the defendant could have formed the intent to commit the crime. It does not alter the elements of the offense or create an additional element for the Commonwealth to prove.
The defendant in Taylor Amil Wallace v. Commonwealth of Virginia gets a somewhat better result in his appeal from a conviction for another crime involving technology – the use of a computer for a fraudulent purpose without authorization. The computer in question is an ATM and the fraudulent purpose was using the ATM to deposit forged checks.
The Court of Appeals, Judge Ortiz joined by Judge Lorish with Judge Athey concurring in part and dissenting in part, first have to decide whether an ATM is a computer within the meaning of Code § 18.2-152.3, and it is on this point that the majority and dissent differ – the majority decides not to decide the issue because it finds that the Commonwealth failed to prove that Wallce used the ATM “without authority,” so the conviction for that offense must be reversed. Because Judge Athey would find that using an ATM “without authority” includes using it for a fraudulent transaction, he must address whether this ATM is a computer.
The dissent takes the view that while not all ATMs are computers, those that function, in effect, as AI tellers certainly are because they have a sophisticated function involving many types of transactions. He distinguishes these full-service ATMs from those that one finds in convenience stores, hotels, and bars that only dispense cash.
I am going to take issue with both the majority and the dissent. First, I think the majority should have addressed whether an ATM is, or at least can be, a computer. Having said that, however, I disagree with Judge Athey that a customer who uses their ATM card to access their bank’s ATM network and then uses it for a fraudulent purposes is using that ATM “without authority.” Expect to see a petition for rehearing from the Commonwealth or an appeal or cross-appeals to the Supreme Court.
The last opinion today, The Manors LLC and Darrick Harris v. Board of Supervisors of Albemarle County, in some ways seems to accord with the hi-tech tone of the first two opinions, while at the same time harking back to a simpler time. Harris renovated a rundown property with the intent of turning it into a guest hose in which he would live, but also rent out five rooms for short periods. This required a special use permit for using a residence for “homestays” with more than two rooms for rent. While this harkens back to the days of boarding houses and quaint bed-and-breakfasts, one presumes that Harris was going to obtain his guests through some form of on-line booking service.
Alas, Harris was not able to welcome guests to his humble abode at more than two rooms at a time because the Board of Supervisors of Albemarle County turned down his request for a special use permit, the circuit court upheld that decision, and so too today does the Court of Appeals, Judge Callins joined by Judges Beals and Friedman.
First, a word about appeals from zoning actions. Whether the matter is taken to a Board of Zoning Appeals or to the local governing body, the administrative decision of a zoning action falls within the appellate jurisdiction of the circuit court. That’s right, the circuit court sits in appellate jurisdiction reviewing the zoning decision on a writ of certiorari.
Now, as to why the County rejected the special use permit, the zoning staff had several concerns: aside from concern about whether Harris would live on-site (he previously filed an application for an exemption for this requirement), fall into four main categories: (1) the large house and garage are aesthetically out of character with the surrounding neighborhood; (2) the proposal is essentially a “small hotel” and a party house, which is out of character with the neighborhood; (3) the homestay will increase traffic and parking problems; and (4) granting the special exception will set a precedent that allows residential neighborhoods to be overcome by homestay and short-term rental properties.
Apparently Harris has at least one other property like The Manors and it has been a sore spot with neighbors because it is used as a “party house.” That is, the “guests” book the rooms and then host a large, often boisterous and alcohol fueled party with many more guests that would typically be at a residential home.
For those interested in the minutiae of the review of zoning issues, the opinion is a fairly easy read at just 14 pages. However, the appeal comes down to one issue – was the Board’s determination of the facts and application of the law “fairly debatable?” This is about as high a standard of review to overcome as abuse of discretion. Some would argue that it is contextual even higher because the courts are hesitant to set aside a decision which is essentially legislative in nature.