Did you notice that there was no post to the Court of Appeals of Virginia Blawg last week? You didn’t? Well, there wasn’t. Your humble correspondent was on the road, though not for pleasure alas, and by his return to the Virginia Appellate Lawyer’s World Domination Bunker and Dry-Cleaning Emporium, it was just a bit to close to the holiday weekend to report on the one published opinion issued a week ago. Today, another published opinion was issued and a notice of an en banc petition from the Commonwealth was granted, so we’ve got some catching up to do.. First the opinions:
Markquall Antwoine Canada v. Commonwealth of Virginia involves several charges related to Canada’s possession and reckless handling of a firearm. The principal issue is whether the admission of a 911 recording was properly authenticated and whether it was testimonial in character, thus violating Canada’s Confrontation rights. As do so many incidents involving the reckless handling of a firearm, the underlying scenario involve a romance that went bad – maybe, but more in that later. Dezjah Watson was one half of the romance, Canada the other, and its abrupt and not amicable end was very recent before the night in question – recent enough that Canada still had some clothes at Watson’s apartment.
Canada arrived at the apartment while Watson’s sister and some children (the opinion does not identify them otherwise) were present. After Canada collected his clothes, he left the home and shortly afterwards Watson’s sister heard a gunshot, looked out the front door and saw Watson fleeing from Canada’s car with Canada sitting in the driver’s seat with the door open.
Watson called 911 to report that Canada had fired a small caliber handgun outside the apartment. She advised the dispatcher that Canada was a felon and that she believed he was returning to a nearby motel. She also provided a description of the vehicle he was driving, noting that it did not have registration tags.
Police arrived at the scene and recovered a .25 caliber shell casing on the ground near where Canada’s car had been parked. Going to the motel, police identified that vehicle Watson had identified as Canada’s and observed a .25 caliber round on the driver’s seat. Obtaining a search warrant for Canada’s room and the vehicle, police recovered additional ammunition, the keys for the vehicle and a .25 caliber handgun in the basket of clothes that was in the trunk of the car.
Canada was charged with being a felon in possession, reckless handling of a firearm and unlawfully discharging a firearm. At trial, when the Commonwealth sought to introduce the 911 recording, Canada objected that the recording and not been properly authenticated and further that the evidence was testimonial in nature and not subject to cross-examination (presumably referring to Watson’s statements – there being nothing inculpatory in the dispatcher’s responses). With respect to the authentication, Canada argued that the Code § 8.01-390 certificate accompanying the recording was not properly filled out, but the court ruled that as the actual custodian of the record had identified it in court, the certificate was not needed. With respect confrontation, the court ruled that the Watson’s words were “an excited utterance” and none of the dialogue not testimonial.
Now we get the “or maybe not” part of the romance gone bad. You may have noticed that nothing was said about Watson testifying for the Commonwealth, which presumably would have cured the confrontation issue. That’s because Watson was called a defense witness. Now Watson’s testimony was not so much a recanting of her statements to the dispatcher and police as it was a muddle of those statements and apparent contradictions. Rather than try to summarize myself, let me just quote the Court of Appeals rendering:
Watson testified equivocally to the events of the night of November 6, 2020. According to Watson, she called 911 because she was scared and was unsure what Canada would do because he wasn’t talking to her. She also stated she had been drinking that day. At one point, she stated that everything she said in the 911 call was true, but also stated Canada never had a gun and never shot a gun that night. She testified that she put the gun in the clothes hamper and that Canada did not know it was there. She claimed she had put it there because she was angry that Canada had been cheating on her. However, later in her testimony she said she did not place the gun in the hamper. On redirect, she admitted to purchasing the gun herself for home defense. According to Watson, Canada only threw rocks at her car, which produced a sound like a gunshot. Further, according to Watson, what she told the 911 operator was designed to get Canada in trouble because he had hurt her emotionally. Watson discussed the case and evidence with Canada while he was incarcerated, but she testified that did not influence her testimony. On cross-examination, Watson admitted that she previously testified at a bond hearing that Canada had never been at her house on the night of November 6, 2020. She then admitted that either what she said at trial or what she said at the bond hearing was untrue. She also admitted to previously saying she had not talked to Canada about the case at the bond hearing, but on cross-examination agreed that she had. Watson also agreed on cross-examination to speaking with Canada and Canada stating that Watson should not have told anyone they had spoken, that Watson could have claimed the gun, and that Canada suggested she could still claim the gun. However, Watson never acknowledged that Canada had fired a shot.
Most experience defense attorneys know that this is not how one builds reasonable doubt. Given sister’s statements and the later police investigation, as well as Canada’s pretrial conversations with Watson, the circuit court found Watson’s trial testimony incredible and credited her statements on the 911 call. Canada Was convicted of all three offenses.
Judge Humphreys, joined by Chief Judge Decker and Judge Friedman, affirm those convictions, finding that live testimony of the custodian of the 911 recording (and presumable any other document that may be authenticated Code § 8.01-390 certificate) is a perfectly acceptable way to introduce it into evidence. In fact, if you pause for a moment to reflect, you will probably recall that the purpose of Code § 8.01-390 was to provide an alternative method of introducing government record to live testimony. If the government decides it’s inconvenient to have the custodian come to court, the statute provides for methods of authentication that avoid hearsay issues, but nothing in the statute requires the government to use those methods if the custodian is available.
Now that the recording is in, are the statements therein testimonial? Well, that’s not as easy a question as you might think. After all, the 911 operator doesn’t swear in the caller – but a false 911 call (like “SWATing” someone) is a criminal offense, so the caller is facing a potential criminal charge for not being truthful. There is also the very obvious fact that the circuit court here expressly relied on Watson’s statements in the call to convict Canada.
The Court of Appeals gives this issue the serious consideration it deserves – because where there is ample case law that says 911 calls a generally are not testimonial, those cases also state that each instance must be judged on its own merits under totality of the circumstances. To summarize briefly, the Court found that Watson’s statements were present sense impressions of a recently occurring event and were not being given for the purpose of preserving testimony. That makes them non-testimonial even if subsequently relied upon to establish Canada’s guilt.
Canada also challenged the sufficiency of the evidence, asserting that Watson’s “semi-recantation” was sufficient to cast doubt as to whether he actually possessed the firearm. O, Canada! (Come on, you knew I was going to work that in somehow.) The simple fact is that the trial judge made an express finding that Watson’s in court testimony not credible . . . and credibility is a matter for the trier of fact, not the judges on appeal.
The same panel that decided Canada last week issued Jaquan Ramone Brown v. Commonwealth of Virginia this week, with Judge Friedman penning the unanimous opinion. And while the opinion is 20 pages long, the issue is very brief – do the COVID-19 Emergency Orders override statutory speedy trial? The answer is just as short – yes, yes they do.
Brown was indicted on January 9, 2020 and held continuously in the custody of the Commonwealth until his trial in May 2021 – well beyond the five-month statutory speed trial date. The problem is, of course, that on March 16, 2020, the Supreme Court of Virginia declared a judicial emergency based on the COVID-19 pandemic and issued the first of a longer series of orders suspending all non-emergency court proceedings and stating that “all deadlines are hereby tolled and extended, pursuant to Code § 17.1-330(D). March 16 is well within the five-month speedy trial deadline. Moreover, the Supreme Court in a later order expressly stated that statutory speed trial limits were tolled by the first and all subsequent emergency orders until individual circuit courts had approved plans for resuming jury trials.
This appeal is published because, while other cases have address the legitimacy of the suspending of speedy trial by judicial emergency orders, Brown brings a new twist on that argument – he asserts that the Supreme Court’s orders violated the Separation of Powers Doctrine. Brown reasons that the legislative branch enacted the statutory the speedy trial right and the judicial branch cannot undo it by order. It’s a neat argument, but it has one major flaw. The legislative branch also enacted Code § 17.1-330, the statute that gives the Court the power to declare judicial emergencies.
Brown replies, “Sure, but the Speedy Trial Statute enforces a constitutional right, and the legislature can’t give the court’s the power to suspend the Constitution.” Well, yes, and know. It is true that the concept of speedy trial is founded in Constitutional Due Process, but the speedy trial statute is not simply a codification of that right. In fact, it is possible to argue that a trial that comports with the statute is still constitutionally infirm. The Court of Appeals concludes that tolling the statutory speedy trial deadline did not impair Brown’s ability to challenge the delay on Constitutional grounds.
Statutory speedy trial is basically a game of arithmetic. You count the days between the first day (typically the say the defendant is taken into custody on a warrant other lawful process), determine how long he was held in custody or out on bond (giving the Commonwealth five-months to try him vs. nine months) and then subtract any delays “chargeable to the defendant.” It’s frequently this last calculation that causes the most disagreement, because time can be charged to the defendant even if he was not the cause of the delay – if the defendant agrees to or even “acquiesces” in the delay, it may not count toward statutory speed trial. If at the end of the calculation, the time exceeds that allowed by the statute, the defendant goes free . . . unless that deadline was tolled by a judicial emergency order.
Constitutional speedy trial, by contrast has almost nothing to do with the passage of time. Rather, it addresses the impact of what happened between the crime (not the arrest) and the trial. The issue in constitutional speedy trial is did the delay in bringing the defendant to trial cause unfair prejudice to his being able to defend himself against the charge. An easy example is where the government has reason to believe that a witness can provide favorable evidence for the defendant, but that witness is terminally ill. If the government simply bides its time before charging the defendant, who does not know of the need to preserve the witness’ testimony, until the witness shuffles off his mortal coil, and the defendant subsequently learns of this, he can argue that by waiting to charge him, the government prejudiced his ability to call a favorable witness in his defense – even if the delay was only a few weeks or months. In other words, constitutional speedy trial is “hyper specific” to the individual case.
Here, Brown couldn’t show any real prejudice from the delay – especially as in doing the statutory speedy trial calculus, the Court found that only about 135 of the days were attributable to the tolling order and most of the rest of the time was chargeable to Brown’s own continuances or other factors not chargeable to the Commonwealth – and that’s the one thing statutory and constitutional speedy trial have in common, the defendant cannot create or permit the circumstances of the delay to occur and then cry foul. For example, if the defendant “helps” the dying witness get on with job, he can’t then say he will be prejudiced by not being able to call the witness.
And at last we get to the Commonwealth’s successful request for a second bite at the appeal . . . ummm . . . apple, and I get to do a little self-congratulatory back patting. On August 2, 2022, you humble correspondent concluded his summary of Jordan Darrell Morris v. Commonwealth with the observation that “I think we are bound to see more on this issue.” As you have undoubtedly decerned, the case in which the Court has granted the Commonwealth’s petition for rehearing en banc is in deed Morris. If you prefer not to go back a read the prior post about the case, here is a quick refresher. Morris was arrested after he drove almost all the way to an emergency room in the outskirts of Richmond. Police found Morris in his car, somewhat oddly arranged part on and part off the pavement of the parking lot and very obviously under the influence of some very powerful chemical substances. Morris told the police that he feared he had overdosed, was suicidal, and was going to the emergency room to seek treatment. The issue was whether Morris was entitled to the immunity of the medical-amnesty statute, Code § 18.2-251.03, and that hinged on whether the requirement that the defendant be in a medical crisis is based on objective or subjective data. I think it is fair to say that Morris was not objectively suffering from an overdose, but it is also true that he subjectively believed that he was in a crisis – though whether it was a medical overdoes, a psychological reaction to the substances he took, or a combination of both is debatable. Two judges of the Court of Appeals thought the statute covered Morris’s situation, but another did not.
As a dissent it one of the two possible ways to justify seeking a rehearing or rehearing en banc (the other is if there is an opinion by another panel that it is directly on point and reaches a different result), the Commonwealth decided to give the Court of Appeals another shot at this case, and got it. However, what the Commonwealth will not have when the case is before the Court en banc is the friendly face of the dissenting judge. That’s because the dissent was by Justice Russell, in one of the last cases he sat on before his elevation to the Supreme Court of Virginia. Even if the case does go on to the Supreme Court, it is likely that Justice Russell would adhere to traditional and recuse himself from consideration of this case (and any other he had direct contact with during his tenure as a Court of Appeals judge).
An interesting point here is that some judges elevated from the Court of Appeals to the Supreme Court or a Circuit Court to either appellate court recuse themselves from every case that originated in their former court while they were sitting whether they actually were involved in the decision, others do not. Although I do not recall it every being done in Virginia, I do know that in some instances judges that moved to a higher court declined to recuse themselves from case they had decided – in effect getting to review their own rulings. The judicial canons do not mandate recusal in any case, only providing guidelines, but the “Caesar’s wife” approach is always the better course.
Editorial Comment: Today we have a classic example of how the American Criminal Justice System can ensnare people — both the guilty and innocent — in a web of contrived evidence, pressure to convict, and grossly ineffective assistance of counsel — and then fails to provide any kind of real relief to those whose lives were destroyed in the process — or closure for the victim’s family and friends. I urge you to read the entire post, because it’s important that everyone, not just attorneys, understand that the system, while often just, is not perfect.
The Court of Appeals issues a single published decision today, an order dismissing a petition for a writ of actual innocence. The issue addressed by the Court is not whether Stephen James Hood was actually innocent of being an accessory after the fact to abduction and first-degree murder of Ilouise Cooper, and elderly black woman, as a principal in the second degree, but whether the Court can consider his petition where Hood was technically not convicted of these offenses.
The murder occurred August 31, 1990. Initially, police believed that Cooper had been murdered by Billy Madison as revenge against a relative or friend of Cooper who had beaten and robbed Madison during a drug deal gone wrong. Hood, an acquaintance of Madison, was thought to have aided in the crime. Eventually, police brought in witnesses to identify Madison and Hood from a photo line-up. Also in the line-up was Jeffrey Cox, also an acquaintance of Hood and Madison. The witnesses gave very tentative identifications of Cox as the person who abducted Cooper.
Believing that Cox was the principal actor — but also that Hood was an accomplice — prosecutors offered Hood immunity in exchange for his testimony. Hood was presented with “statements” that he and Cox had abducted and murdered Cooper, and at the urging of his attorney, he adopted these statements as his own. The theory of the crime was somewhat vague, with the Commonwealth seemingly unsure whether the abduction was with the intent to rob Cooper or sexually assault her, or both. This theory was complicated by the fact that there was neither evidence or robbery — her jewelry was not taken — nor of sexual assault — although her close were “in disarray,” there was no evidence of trauma suggestive of a physical violation.
Cox was convicted of abduction and murder, and his appeal to the Court of Appeals was refused. Cox’s attorney failed to seek an appeal of that decision to the Supreme Court of Virginia. This was back in the day when a delayed appeal could only be granted by filing a habeas corpus which had to include all other bases for overturning the conviction or they would be deemed waived. Cox, perhaps wisely as it turned out, elected not to seek a delayed appeal at that time. He then spent the next decade in an effort, both pro se and with the assistance of counsel, seeking to challenge his convictions. I will not go into the details of these efforts that led to Cox’s eventual exoneration, which you can read about in the National Registry of Exonerations. Let it suffice to say that the evidence against Cox was shown to be a tissue of lies and that Cox had an airtight alibi for the time of the abduction and murder. After his release from prison, the General Assembly passed a compensation bill awarding him $750,000.
And that should have ended this sorry affair. Except, the Commonwealth still had Hood’s “confession.” Theorizing that Hood had agreed to the immunity deal to cover up his guilt as the actual murderer, the prosecution indicted Hood and successfully convinced the circuit court to throw out the immunity deal on the basis that Hood’s “statements” implicating Cox were perjured. The Commonwealth also persuaded the court to prohibit Hood from presenting any evidence with respect to Cox’s conviction and exoneration to a jury. As a result, Hood opted for a bench trial,
Now the case gets even murkier, as the Commonwealth’s theory was that Hood was the principal actor, but the evidence actually implicated Madison, with hood as an accomplice, because the Commonwealth had reverted to “revenge for a drug deal gone wrong” theory, and Madison was the victim of the robbery and beating. The circuit court rejected Hood’s claim that his initial “confession” implicating Hood had been coerced, but struck the more serious charges and convicted him as a second degree principal in the murder and an accessory after the fact to the abduction. Hood filed an appeal to the Court of Appeals, which upheld his conviction in a 2-1 decision with Judge James Benton dissenting. The Supreme Court of Virginia affirmed the decision of the Court of Appeals.
We pause now in our main story, the bring in some relevant facts. Anyone who was living in Richmond in the mid-90s probably remembers the investigation into the Golden Years Murders. For the better part of a decade, elderly black women were abducted, sexually assaulted and murdered, the work of an apparent serial killer. A special task force was formed to investigate the crimes. Eventually, Leslie Leon Burchart, a mentally ill homeless man, was convicted of several of those murders. Why is this relevant? Because it was subsequently alleged, with very credible support, that Burchart was probably guilty of additional murders — including Coopers. While this was far from certain (and there was much stronger evidence in another case that a person had been wrongfully convicted of a murder likely committed by Burchart), it was clear that Richmond Police had not pursued leads in these cases that would have linked Burchart to the murders.
After Burchat was convicted, Hood was sought a writ of habeas corpus from the Circuit Court of the City of Richmond. It took the court nearly five years to resolve the petition, eventually concluding that Hood’s trial had been a clusterf**k of errors by his counsel and likely misdeeds by the prosecution. Predictably, the Commonwealth sought to appeal this decision. However, the appeal was subsequently withdraw when Hood agreed to enter an Alford plea to attempted abduction with a sentence of time-served. It is easy to understand why Hood would do this. Even if the Commonwealth’s appeal of the habeas had been unsuccessful, Hood was likely facing a retrial in which, given his past experience, his confidence of an acquittal was understandable low.
Which brings us to his petition for a writ of actual innocence. Hood was asking the Court of Appeals to find that he as actually innocent of the convictions that were vacated by the habeas order. While this would not have resulted in the vacating of his conviction under the Alford plea, it would have gone a long way to acknowledging that he was likely the victim of an overzealous prosecution.
The problem is, as Judges Humphrey and Causey and Senior Judge Clements see it, is that the Court does not have jurisdiction to consider a writ of actual innocence under these circumstances. Recognizing that this is unique situation, the Court analyzes its statutory jurisdiction and concludes that writs of actual innocence are available only to set aside a conviction of a felony offense — the accessory after the fact offense was, at that time, a misdemeanor and so wouldn’t be reviewable in any case, as pointed out in a footnote — but the convictions have been vacated, rendering them a legal nullity. As the convictions do not legally exist, the Court concludes that it has no jurisdiction to determine is Hood was actually innocent of the crimes.
I have not fault with the reasoning of the Court — the statute permitting writs of actual innocence just didn’t anticipate this type of case, not is it likely the General Assembly would have given such authority to the Court of Appeals had it been anticipated. My issue with the case is more fundamental. Too often I have seen criminal cases, a prime example being the repeated attempts to impose the death penalty on Darryl Renard Atkins, where the Commonwealth pursued a defendant relentlessly despite increasing evidence of his likely innocence.
In the Atkins case, it was ultimately revealed that Atkins, while an accomplice to the robbery of a young sailor and present at his subsequent murder, had been railroaded by an unscrupulous prosecutor who determined that because Atkins was developmentally disabled a jury would be more likey to impose a death sentence on him than on his accomplice. The prosecutor then coached the accomplice to change his statements to implicate Atkins.
I will not recount the long and tortured process that followed, but will say this: I was responsible for reviewing the evidence from Atkins’ first trial — before the prosecutorial misconduct was revealed. After studying the physical evidence and the testimony of the accomplice, I was convinced beyond any doubt that the accomplice had been the shooter and, in all likelihood, Atkins had tried to prevent the murder. Unfortunately, by this time, Atkins “guilt” had been established and the only issue was whether the Commonwealth could put to death a developmentally disabled person without giving the jury an opportunity to weight this as a mitigating factor. The case went all the way the the United States Supreme Court, which reversed the death sentence. The Commonwealth was able to obtain a death sentence from a second jury, but that sentence was also set aside, this time by the Supreme Court of Virginia. It was while Atkins was awaiting his third penalty proceeding that his accomplice dies in prison, and the accomplice’s attorney, freed from the attorney-client privilege, revealed that his client had admitted his role as the shooter and that the Commonwealth, aware of this claim, had nonetheless proceeded to use his testimony against Atkins.
With this revelation, the trial judge ruled that no reasonable jury would have convicted Atkins as a principal in the first degree, which is required to impose the death sentence, and entered a judgement sentencing Atkins to life in prison. The Commonwealth then did something that I find to be inexcusable — it sought a writ of mandamus to the trial court directing it to vacate the sentence and to permit the Commonwealth to seek a third death sentence from a jury. The Supreme Court of Virginia refused the petition.
The present case is perhaps not as grave as the Atkins case, it is still incomprehensible to me that that Commonwealth would continue to seek a conviction against Hood, who spent nearly a decade in prison, given the absolute certainty that obtaining a conviction against him was a dicey prospect at best. Unlike in Atkins, I have not had the opportunity to review the evidence first hand and in detail, and I suppose it is possible that there was some credible evidence that linked Hood to the abduction and murder of Cooper. But I do not see the conviction of Hood by an Alford plea to “attempted abduction,” a crime that he most certainly did not commit, as Cooper was actually abducted, as in any way constituting “justice.”
When testimonial evidence is excluded by a trial court, it is essential that the party who want to introduce that evidence makes a “proffer” of what the evidence would have been. Without a proffer, an appellate court will rarely consider reserving a judgment based on the trial court’s decision to exclude the evidence as there is no way of knowing how it would have impacted the trial. Perhaps the witness would have claimed ignorance, or perhaps would have said the exact opposite of what the appellant wanted.
Now when a court excludes documentary evidence, making a proffer is easy. You simply produce the documents and have them entered into the record. Generally, the court will not even require you to authenticate them since they are not being considered. But testimonial evidence is not that easy to proffer for several reason. First, the court isn’t likely to allow you to proffer it through live testimony. Whether it is a bench trial or a jury trial, this will take time, and in the case of the former, there is the added difficulty that the judge, who is also the trier of fact, will have to be present when the testimony is proffered, but ignore it later when making determinations of fact. Judges often say, “You can make your proffer after the evidence is in,” but this requires 1) that you remember to do it, and 2) that the witness is going to be available at the end of the trial. There are also times when you are being asked to proffer testimony of a witness who is not present, or to proffer the expected testimony rather than have the witness testify.
The making of a proffer must be sufficient to allow the appellate court to determine if its exclusion was error, and that is the issue that controls the result in today’s only published opinion from the Court of Appeals, William O. Flannagan, Jr. v. Commonwealth of Virginia. Flannagan was charged with and convicted of 1st degree murder and use of a firearm in that crime. It was not disputed that on the day of the murder Flannagan had been drinking at a gathering and over the course of several hours got into repeated arguments with Jason Ferguson, at times recklessly brandishing a pistol. Eventually, Flannagan and Ferguson were both asked to leave. Shortly thereafter a gunshot was heard and Ferguson was shot and killed. Although Flannagan was standing nearby with the gun in his hand, apparently no one actually saw Flannagan fire the pistol.
Flannagan walked away from the scene and was apprehended a short time later. The officers who found Flannagan administered a preliminary breath test (PBR). A PBT is generally used to detect the presence of alcohol in a person’s breath, but is not recognized as scientifically accurate to provide the precise concentration of alcohol. In most cases, a PBT is used to establish probable cause that a person is intoxicated so that a more accurate test can be be ordered, but by statute, the result of the test is not admissible to establish the blood alcohol level (BAL) of a defendant during the guilt phase of a trial. This rule normally benefits the defendant in a DUI case or for some other offense where a precise BAL is required to be shown for some purpose, but it applies to both the prosecution and defense — so, for example, the defense cannot seek to introduce the result of a PBT to rebut a BAL established by scientifically accurate means.
The use of PBR results in other contexts is less certain. Certainly, if the result is to be introduced to show that the person to whom the test was administered had some alcohol in his blood stream, for example to show that he had been surreptitiously been given an alcoholic beverage, it could be argued that the test was sufficiently accurate to prove this. Attempts have been made to have PBR tests admitted in both criminal a civil cases where the issues was not the test’s ability to show a precise BAL, but only to show that some alcohol was present. In such cases, the courts have generally based the admissibility on two factors: 1) Is the particular PBR test accurate when properly calibrated and administers and 2) that it was properly calibrated and administered in the particular case.
Now you are probably wondering (unless you know a lot about homicide law) why the result of Flannagan’s PBT would have been relevant in this case. He was charged with first degree murder, not DUI. The answer lies in a peculiar facet of criminal law in Virginia, which is that voluntary intoxication is not a defense to negate or mitigate the existence of an intent to commit a crime except to negate premeditation as an element of first degree murder.
Flannagan wanted to question the officers who administered the test about the specific result of the test, that is, the approximate BAL that the test indicated was in his system just shortly after the killing. While the evidence would establish that Flannagan had been drinking, that was probably not enough to show that he was intoxicated to the point that his ability to premeditate the killing of Ferguson would be called into doubt. Flannagan obviously wanted to put some number to his level of intoxication to bolster his defense, and the Commonwealth just as obviously wanted that evidence out.
When the Commonwealth objected to Flannagan’s first question to the officer about the PBT, Flannagan said that he would present expert testimony regarding what the result meant with respect to his level of intoxication. His counsel proffered that the officer who administered the test would say that it had been calibrated just five days before and would also authenticate the calibration logs for the test. The circuit court then asked how that “establish[ed] the reliability of the test overall.” Citing Santen v. Tuthill, 265 Va. 492 (2003) as well as an Attorney General opinion, Flannagan maintained that the proper calibration of a PBT device was sufficient to establish its reliability.
The court seemed doubtful of this proposition and asked if the expert would state that she could render her opinion based on the device being properly calibrated because the test was “reliable for establishing the blood alcohol content.” Following a brief recess, Flanngan’s counsel reported that the expert was not prepared to say that the device was “reliable for establishing the blood alcohol content.” The court ruled that the evidence of the result of the test, and the testimony of the expert based on that result, were not admissible, but permitted Flannagan to proffer the expected testimony, which was that the the device was properly calibrated and administered, that the PBT showed a BAL of 0.189%, and that this level of intoxication would have affected Flannagan’s “judgment, attention, motor coordination, and reaction time.”
The issue on appeal was whether the proffered evidence should have been admitted. More specifically, Flannagan argued that the proffer that the device was properly calibrated and the test properly administered was all that was required to establish the reliability of the result. In an opinion by Judge AtLee, joined by Judge Causey and Sr. Judge Haley, the Court of Appeals disagrees. Setting aside for a moment that Santen is a civil case, so probably not the best precedent for admissibility of this kind of evidence in a criminal trial, the Court points out that the circumstance in this case is the mirror image of that in Santen. In Santen the proffer was that the device was scientifically accurate, but no proffer was made that it had been properly calibrated and administered. Here, the proffer was that the device was calibrated and the test administered properly, but not that the test itself was scientifically reliable. As mentioned above, the general rule before admitting such evidence is that you must show both prongs — and Flannagan’s proffer didn’t.
Now, one could wonder (indeed, I’d be surprised if you aren’t wondering now), how can one expert testify in one trial that a test is scientifically accurate and another then not be able to do so in a different — for clearly that was the problem here. There are several possibilities. First, it could be that Flanngan’s expert simply wasn’t prepared to say this — that doesn’t mean that she could not have done so had she studied the literature or performed tests on the machine, just that she wasn’t able to say so on the day of trial. Another possibility is that this could be an issue on which there is genuine scientific disagreement, because where some process is so widely accepted in the scientific community that there is no debate about its accuracy anymore, the courts will accept that fact without expert support. In the case of the various types of PBTs, however, there is no consensus as to their precision of reliability — that is, while it is agreed that they can detect the presence of alcohol in the breath, unlike more sophisticated devices, the ability to accurately determine BAL is far from certain.