Today I second-chaired a criminal trial. Why was an appellate lawyer doing real lawyer work? Well, primarily because in this case (and in a related case that will be tried in about 2 months) there was initially a concern that there would be a significant appellate issue. As it turned out today, we never even reached that issue and got an appropriate result. For reasons of confidentiality (although this was a public trial, I do not wish to bring any more attention to the case than is warranted), I won’t go into to details. However, the issue we thought might need to be preserved for appeal was whether Virginia’s new “mental health evidence” law has opened the door, if just a crack, for obtaining an acquittal or a reduced offense based on the defendant’s diminished capacity/culpability.
For those not in the know, until July 1, 2021, in Virginia you could not introduce evidence of the defendant having a mental disease, mental defect, or developmental delay during the guilt determination of the trial unless you were seeking an acquittal by reason of insanity. In Virginia, an insanity defense is applicable only if at the time of the offense(s) the defendant was “incapable of understanding the wrongfulness of his act,” which is often called the M’naughten Rule, or the defendant was acting under an “irresistible impulse.”
The M’naughten rule was formulated as a reaction to the acquittal in 1843 of Daniel M’naghten on the charge of murdering Edwaed Drummond. M’naghten had shot Drummond after mistakenly identifying him as UK Prime Minister Robert Peel, who was the intended target. The House of Lords asked a panel of judges, presided over by Sir Nicolas Conyngham Tindal, Chief Justice of the Common Pleas, a series of hypothetical questions about the defense of insanity. The principles expounded by this panel have come to be known as the “M’Naghten Rules”, though they have gained any status only by usage in the common law and M’Naghten himself would have been found guilty if they had been applied at his trial.
Although the panel offered several rules, the one that has received the most widespread use relates specifically to whether a defendant can be held liable for an action that he did not perceive to be wrong. The judges said that “the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” For much the remainder of the 19th century and through the first half of the 20th century, this standard for insanity became the rule in almost all courts that derive their procedures from English common law, including most states in the US.
A second test, somewhat more recent in origin, is the “irresistible impulse test” in which the defendant, while aware that what he is doing is criminal, is compelled to commit the offense. This test is sometimes called the “cop at the elbow” scenario, essentially maintaining that the defendant would have committed the crime even if the police were standing right beside him telling him it was a crime.
Apart from these two circumstances, mental illness was not a basis for exculpating a defendant of criminal liability, but could only be used to mitigate his punishment. Indeed, in four US states and in many other criminal justice systems, the concept of using insanity as a defense is rejected flat out, allowing only for consideration of the punishment.
By the latter half of the 20th century, criminal justice reform had started to allow for consideration of mental illness to mitigate, or even exculpate, a defendant even when the defendant understood the wrongfulness of the act and was not action under an irresistible impulse. Though known by various names, this practice has generally been referred to as the “diminished capacity” defense. In very simple terms, its presents the argument that the defendant’s mental illness kept him from forming a rational intent to commit the crime, even while knowing that it was a crime.
Virginia has never adopted a diminished capacity defense, but this did not stop defense attorneys from trying to bring in evidence of a defendant’s mental illness even where an insanity defense was not being offered. So in 1985, the Supreme Court of Virginia was asked to decide whether such evidence was admissible in the guilt phase of a criminal trial. In Stamper v. Commonwealth, the Court held that such evidence was not relevant to proving the guilt or innocence in absence of a claim of insanity. As the Court put it, “there is no sliding scale of insanity.”
And so the law remained until the 2021 Special Session of the General Assembly. Taking up a bill that had been continued from the regular session, the legislature “overruled” Stamper by creating a specific statutory authorization under Code § 19.2-271.6 to admit evidence of a mental disease or defect or a developmental disability if such evidence tended to show that the defendant “did not have the intent required for offense charged.” The evidence has to be otherwise admissible, and it must be established that the defendant has the disease, defect or delay, although the manner for doing so is not clearly set out in the law. The law also does not clearly require a court to conduct a commitment proceeding if the defendant is acquitted, though it makes reference to the court being permitted (or rather not being limited in its authority) to enter an emergency custody order and schedule such proceeding.
So what is the significance of this new law? No one really knows, and that is why an appellate lawyer was second chairing a felony trial today, because there was a real possibility that the issue was going to come up. As it turned out, it didn’t, because the trial court found that the evidence was sufficient to find that defendant was legally insane at the time of the offenses under the M’naughten rule. While the court expressed some concern about one of the charges, it ultimately ruled that while the defendant had the burden of establishing insanity, the Commonwealth still retained the burden of proving guilt beyond a reasonable doubt, and in this instance the evidence that the defendant was mentally ill was sufficient to raise a doubt as to whether, absent that illness, he would have acted as he did, the court concluded that in his mental state it was not shown that he did understand the wrongfulness of his act, and as one witness opined that he did not, the defense prevailed.
So for the moment, we will not have a case on the application of Code § 19.2-271.6 to take up on appeal. But there will have to be one, eventually. The best possible interpretation (from the defense perspective) would be to treat the evidence as admissible to establish a “but for” principle. That is, “but for the mental illness, the defendant would not have committed the crime.”
For example, suppose the defendant “John Doe” believes himself to be Willie Sutton, the bank robber who when asked why he robbed banks, famously replied “Because that’s where the money is.” (Sutton denied having said it, saying that the reporter who attributed it to him made it up, but later said that had he been asked the question he might have said that, but would more likely have replied, “Because I enjoyed it.”). Now Sutton knew that robbing banks was a criminal offense, and so does the defendant. He commits the crimes because he enjoys it, or perhaps because that’s where the money is. But he is not Willie Sutton, and if he wasn’t mentally ill, he wouldn’t ever dream of robbing a bank.
Under the M’naughten rule, an expert would have to opine that John Doe didn’t appreciate the wrongfulness of his acts when he believed that he was Willie Sutton and it was Sutton, not Doe, who was robbing banks. The defense might find an expert willing to make this very fine distinction — i.e. that while John Doe as Willie Sutton knew robbing banks was a crime, he wasn’t able to appreciate that it was John Doe committing the crime, so Doe didn’t know that Doe was doing something wrong. That may be a hard sell to a judge or jury, especially as the Commonwealth will find an expert who will say “Hogwash.”
Similarly, an expert might be willing to say that John Does was acting under an irresistible impulse to commit bank robberies because “Willie Sutton” was in effect compelling him to do so. Again, this will be a hard sell.
But no expert would have any difficulty in opining that John Doe wouldn’t commit bank robberies if he were not mentally ill — provided they were certain it was true and his belief that he was Sutton not merely an act. Therein lies the difficulty in convincing a court, especially an appellate court, to adopt a “but for” standard — it make mental health evidence too tempting for the defendant to suddenly realize that he must have been crazy.
I think a more likely outcome will be that the Court takes the legislature at its word and decides that the evidence must show that because of the mental illness “the defendant did not have the intent required for the offense charged.” In other words, the evidence will most likely be used to reduce, rather than eliminate, culpability for an offense. This is sometimes called “diminished responsibility.” This is most often applied to reduce a charge of murder to manslaughter as, for example, where the defendant believed that the victim was someone who had committed a horrible crime and “deserved” to die, even while knowing that vigilante justice was wrong. If it was simply a case of mistaken identity, the crime would still be murder; but if the defendant’s mental illness caused him to believe incorrectly that his neighbor was secretly a pedophile or rapist, it might warrant a reduction in the charge and possible a suspended sentence with a civil commitment for treatment.
To reach this point, the law will probably be used by a reform-minded prosecutor to strike a plea bargain with a defendant, and may never reach an appellate court for imprimatur if the trial court is willing to accept the plea and, perhaps an agreed sentence that includes mental health treatment. I think a trial court will be far less likely to permit a defendant to make such an argument to a jury, and it might reach the appellate courts that way. Time will tell.
Having just last week participated in the first ever VaCLE Virginia Appellate Academy during which one of my roles was to advise some of the participants on the subtle art of brief writing, I found the appearance on the one published open from the Court of Appeals issued today to be very gratifying. I know the photo below is a bit small and grainy, but the text is irrelevant to the point I am about to make.
Look at the bottom of the page. See all that white space? The reason that white space is there is because on the next page there is a heading and that heading has a footnote. Had the court formatted the page so that the heading and all (or most) of the footnote was on page 1, it would have looked decidedly odd. Here’s the point I made to the participants at the Academy and that I make here now — the visual appearance of a brief (or opinion) matters. Odd page breaks, widowed and orphaned lines of text, run-over footnotes, broken up block quotes, and a host of other formatting issues make the brief difficult to read — and you don’t want the audience for your brief, whether it’s the Court and court staff, opposing counsel, or your client, being distracted from the content of what they are reading by the appearance of what they are reading. I have heard countless judges tell attorneys that “a badly formatted pleading or brief” will not lose your case, but then in the next breath say, “Of course, judges are human beings and can’t help but be influenced by neatness and good grammar” or the lack thereof.
In short, if you have a winning argument, and can communicate it adequately, an odd page break or non-critical typo is not going to sink your case — but why take the risk? Learn to use the very powerful tools of modern word processors and printers to make your argument impressive in content and form. But don’t overdo it. It may be easy to emphasize a point with Bold, Underscoring, and Italics, but trust me when I say that it is not effective. The best way to tell if your brief is “looking good” is to compare it to an opinion of the Court that will be reading it. Following the Court’s style for headings, emphasis, citations and footnotes will present a document that the judge or justice is “used to seeing.”
Now on to the actual substance of Travor Lamont Lucas v. Commonwealth of Virginia. Mr. Lucas’ story begins as so many do with a simple traffic stop for defective equipment. The officer who stopped the vehcile Lucas was a passenger in felt that it had taken the driver an inordinate amount of time to respond to the cruiser’s lights. Lucas appeared “nervous” when the officer approached the vehicle.
Now let me stop here and say a word about this classic introduction to a criminal case — people will constantly say, “but of course he was nervous; of course the driver didn’t stop right away . . ..” Well, after three decades of reviewing testimony of police encounters with the public, and more recently being able to review bodycam footage, let me take up for the folks in blue (or brown or green or khaki based on the agency and jurisdiction) — there is a “normal nervousness” and there is a “odd sort of nervousness.” Same thing with how a driver pulls over — sometimes it’s clear the driver is just looking for a safe place to stop, and other times it’s, well, not clear if the driver is going to stop. I have had more than one officer tell me that the most worrisome behavior is the driver who stops immediately as this can signal a willingness, perhaps even an intent, to confront the officer — it means that the natural “fight or flight” instinct for that person defaults to “fight.”
Anyway, Lucas had good reason to be nervous as the driver didn’t have a driver’s license. Now this means that the officer had a good reason to detain the vehicle for longer than it would take to give a warning or summons for defective equipment. Long enough, in fact, for a drug-sniffer K-9 unit to arrive on the scene. Asking Lucas and the driver to exit the vehicle, the dog alerted the officers to the presence of narcotics inside, and sure enough suspected narcotics were found inside a folded five-dollar bill.
Lucas now did something that in retrospect he probably shouldn’t have. He body checked the officer trying handcuff him and ran. But not far. One of the officers tackled Lucas after a brief chase and as they went down, the officer heard a distinctive sound that he suspected was a metal firearm falling on the ground. Another officer observed the weapon “fly” out of Lucas’ pants. There was also bodycam footage from earlier that established that no gun had been in the area where Lucas was tackled prior to that time.
Lucas was eventually charged with and convicted of multiple offenses arising from this incident including obstruction of justice, possession of a firearm by a previously convicted violent felon, and possession of a concealed weapon. Exercising his right to appeal, Lucas has several arguments on why this was all a big misunderstanding. Judge Fulton, joined by Judges Ortiz and Raphael, however, seem to have a different understanding.
First, Lucas contends that his refusal to be handcuffed, body checking the officer, and flight from the scene was not really obstruction of justice, it “merely made the officer’s task more difficult and it did not prevent them from performing their duty.” Ummm . . . Newsflash . . . that is almost a perfect definition of “obstruction of justice.”
Lucas relies on a Virginia Supreme Court case that held “mere flight” was not obstruction of justice, but the Court of Appeals notes that this was not “mere flight.” Perhaps the lesson here is that you should run before the police know exactly why your are running, not after they’ve already found evidence sufficient to arrest you and, in fact, are in the process of doing so. I am not saying that running is a good idea — just that as in comedy, timing is everything when not wanting an obstruction of justice charge.
Lucas next argues that the evidence of his possession and concealment of the firearm did not exclude several reasonable hypothesis of how the weapon came to be in the middle of the street close to where he was tackled during his flight and where at least one officer saw it “fly out of his pants.” Lucas suggests that the driver threw the gun from the vehicle or from the side of the road as Lucas fled. In the alternative, Lucas argues that the gun was already in the road and was disturbed when he stumbled upon it as the officers tackled him. Finally, Lucas argues that the Commonwealth failed to prove that the firearm was about his person and readily accessible, as was required to convict him of possession of a concealed weapon.
Here is where Lucas runs into two well known mantras of appellate practice. First, the evidence is (with a few exceptions) always viewed “in the light most favorable to the party that prevailed in the trial court” — and none of the exceptions to that rule apply when challenging the sufficiency of the evidence to sustain a criminal conviction. Second, a reasonable hypothesis of innocence is one that “flows from the evidence, not those that spring from the imagination of the defendant.” There was no evidence that the driver threw anything into the street, and there was uncontroverted evidence that the street was empty prior to Lucas’ flight. Judgment affirmed.
A quick word on an unpublished opinion that was released today, Teresa Mary Maust v. Commonwealth of Virginia. I wish the Court had chosen to publish, if only because it’s pretty rare to get a “reversed and final judgment” in a criminal case. I concede that the facts are fairly unusual, so the precedent may not be worthy of a published opinion, but the case itself is worth a brief mention. Maust was charged with distribution of a controlled substance having been caught up in what is commonly know as a “controlled buy.”
A controlled buy typically involves a police informant — usually cooperating as part of a plea agreement or to avoid criminal charges — who arranges to buy drugs from someone the police already suspect to be dealing (usually based on information from the informant). There are very specific procedures that must be followed to avoid claims of entrapment and to assure that the informant is not, for lack of a better word, hoodooing the police by faking the purchase from an innocent person. This typically requires the officer handling the informant to check that the informant 1) has no drugs on his person, 2) only has the marked bills provided by the police to make the purchase, and no other money, and 3) has no opportunity to purchase drugs from someone other than the target — done by visual and audio surveillance of the informant from the time he leaves the handler to when he returns with the drugs.
Even the best laid plans can go wrong, and in this case they did. After checking Gale, the informant, for drugs and money, the officer supplied Gale with the marked bills and then followed Gale, who was driving his own vehicle, to Maust’s residence. Now this is troubling, for while the officer had searched the vehicle, there is always a chance for mischief when the informant and the officer are separated.
Although Gales was wearing a recording device, the officer was not able to hear live audio (the opinion is not clear as to whether this was a fault of the equipment or that it was only a recording device, not a transmitting one). Again, this is troubling, but not fatal, to the operation, as the recording can serve as evidence that there was no one else present at the transaction (at least not speaking) and that the target is conducting the negotiations.
Then, as they arrived at Maust’s home, Gale got a bit ahead of the officer, who then lost sight of Gale’s vehicle and did not actually see Gale exit the vehicle, or see him enter and later exit Maust’s house, possibly twice. The officer was able to see that there were several other cars present, at least suggesting that other people where likely in the vicinity.
So, what did the tape tell us? Something that was not disclosed before in the opinion — that Gale was not alone in the car during the drive to Maust’s house. An unidentified person can be heard talking to Gale on the drive and in fact it was this “companion” who texted Maust to say that Gale was “here.” More importantly, the officer conceded that he had no idea where Gale’s companion was when Gale was supposed to be buying drugs from Maust, nor is it clear where the companion was when the vehicle was searched, if the companion had any cash on him (or her) or for that matter, what the H*** this person was doing in the middle of a controlled buy.
Now if I am a defense attorney (or a savvy prosecutor), the little tinkles of concern I had about the informant driving his own vehcile, the officer not being able to monitor the audio, and the inability to see Gale actually go into the house have just turned into blaring klaxons. AH-OOGA! AH-OOGA! Houston we have a problem.
Now, there is still plenty of opportunity to put out the fire. For example, the audio recording may establish that Maust openly discussed selling drugs and accepting cash from Gale. Except that she didn’t. Instead, there was some conversation about how much Gale “owed” Maust, and a great deal of questions about some appliances Maust was selling (and no testimony that this was some euphemism for drugs). Nothing about drugs. Eventually Gale returned to the predesignated meeting place and gave the officer three pills and some money that was not part of the original marked buy money.
Now I am going to give a quick summary of what followed. Police got a search warrant, and in searching Maust’s home found considerable evidence that would be entirely consistent with drug trafficking — drugs, of course, but also large sums of cash, a pill press, an “owe sheet” and numerous prescription drug bottles. Among the cash recovered were the marked bills given to Gale for the buy. Maust also made some incriminating statements, while also trying to deflect blame to her ex-husband who was a “way bigger drug dealer.”
Now to this point, experienced criminal lawyers are saying, “Hmmm . . . a close case, but if the circuit court doesn’t have a problem with the initial drug buy and excludes the evidence from the search, it will all come down to credibility. Gale will testify he bought drugs from Maust; Maust will deny it, and the judge will believe Gale.” Except there is one hitch in that plan . . . Gale died before the trial.
Since this is an appeal from a conviction, not an interlocutory appeal from a suppression motion. We know the circuit court did not have any trouble with the legitimacy of the buy, and then found that there was sufficient evidence to show that Maust was the person from whom Gale acquired the drugs.
That’s not how two members of the Court of Appeals see it. Judge Chaney, joined by Judge Causey, find that the circumstances surrounding the buy are sufficiently questionable to raise a doubt as to whether Gale obtained the drugs from Maust. In effect, that is the ace at the bottom of the house of cards on which the rest of the evidence rests, and for the Court, taking that card away causes the rest to fall with it. While there is substantial evidence that Maust was “in the business of dealing drugs,” she was charged with distribution of drugs to Gale. The majority says that the ambiguity about the controlled buy is sufficient for reasonable doubt.
Judge Malveaux, however, takes issue with this rationale. For her, this is a sufficiency case, plain and simple. And applying the “light most favorable” standard, the evidence, albeit circumstantial, is sufficient to find that Gale obtained the drugs he turned over to the officer from Maust.
My question, more for trial counsel I suppose, that for the Court of Appeals, is was there a motion to suppress the evidence of the search and if not, why not? Given the very atypically nature of the buy, challenging the search warrant issued based on the buy would seem a natural action to take. It occurred to me is that if there had been a suppression hearing and Gale was still living, his testimony, subject to cross-examination, might have been preserved at that proceeding and could have been used at the trial. But, if the trial court had found that the questionable drug buy was insufficient to sustain probable cause for a warrant, all that circumstantial evidence that Maust was dealing drugs would go away . . . probably along with the charge.
As we enter the Dog Days of Summer, the Court of Appeals has three published opinion to kick off August. Let’s start off with a Worker’s Compensation appeal where the pro se employee appellee gets a win! Hooray for the little guy — or in this case gal. The case has a really interesting twist in that Ms. Casie O’Neil is a sheriff’s deouty and her on the job injury was caused by another law enforcement officer during a training exercise.
County of Henrico and PMA Management Corporation, TPA v. Casie O’Neil involves three questions: Did the Commission err in failing to find that O’Neil’s claim was barred by res judicata, and if not, did it err in finding that her injuries were were causally related to her workplace accident. Separately, the County also argued that “the Commission erred by refusing to permit the County to participate in oral argument in an unrelated case.” That third issue is a bit of a head-scratcher, isn’t it? How is an “unrelated case” relevant to O’Neil’s? As Margo Channing would have it, “Fasten your seatbelts; it’s going to be a bumpy night.”
O’Neil attended a sheriff’s training exercise. During the training, a lieutenant punched her near the throat, causing pain in her collarbone, neck, head, left arm, and ear. Immediately following the punch, O’Neil felt pain on her left side, she could not hear anything, and her jaw hurt. Her supervisors instructed her to go back to her workplace to fill out an incident report. She experienced more pain while driving, so she pulled over and her supervisor drove her to the emergency room where she was treated. Subsequent medical treatment showed that O’Neil was suffering from “multilevel degenerative disc disease in the spine,” how ever in making this diagnosis, the training incident was identified as the “onset” of the condition.
There was no evidentiary hearing on O’Neil’s initial claim for benefits. She was rated for light duty and received an award that provided temporary total disability due to “sternoclavicular joint strain.” After being rated to return to full duty, O’Neil continued to suffer pain and hearing loss. Following additional examinations, she was diagnosed with brachial plexus injury, reactive cervical lymphadenopathy, neuropathic pain, and otalgia of the left ear. Again, the doctor making the diagnosis traced these conditions to the trauma from the training accident.
O’Neil filed a new claim, which was dismissed by the deputy commissioner as barred by the previous award. The Commission reversed the res judicata finding and remanded the case to the deputy commissioner, who then denied the claim finding that O’Neil failed to prove that any injuries to her brachial plexus, neck, collarbone, left arm, left ear, or mouth were directly related to the incident or a composable consequence of that incident. The Commission again reversed with respect to the injuries to her brachial plexus, neck, collarbone, and left arm, but not those related to her ear. So, we know the origin of the first two issues . . . but what about the “unrelated case”? Well, as I said, it’s going to be a bumpy night.
The Court of Appeals, Judge Callins writing for herself and Judges Huff and Lorish, first address the res judicata issue. Res judicata can apply to Worker’s Compensation cases, but it’s not quite as straightforward as in civil law, because “when res judicata conflicts with other public policy considerations, [the Court] must balance application of the doctrine against those other considerations.” This, the appellate courts “recognize that a “[w]orkers’ compensation case, of course, cannot always be concluded in a single evidentiary hearing,” and have therefore affirmed the Commission’s ‘tailored . . . application of res judicata to take into account allegations of injury that, while pled in the initial claim may nonetheless not be ripe for final adjudication.'”
One of the ways that a claimant can avoid res judicata is if she never had the opportunity to present evidence to the Commission and, in doing so, failed to establish all her claims. The Court of Appeals has already held that where there is no claim, but only an agreed award, the lack of an opportunity to present evidence means that there was also no opportunity to “waive” a future claim by failing to present evidence. Today, the Court answers the question of whether the filing of a claim followed by an agreed award without an evidentiary hearing likewise avoids res judicata. The Court holds that the same rationale applies — no evidentiary hearing means no waiver of claims not proven.
As to the finding that the injuries were caused by the workplace accident, the County argued that there was insufficient expert evidence to establish causation. The Court responds that the Commission can rely on medical evidence and draw its on conclusion about causation and that its decision is review in the light most favorable to the prevailing party. I guess that was more polite than my reaction to this issue which was “Ummm . . .No.”
Finally, what’s this about not being permitted to present argument in an “unrelated proceeding”? Well, it turns out that O’Neil, while pro se at the appeal level, had counsel before the Commission and this attorney, whose identity is sadly not revealed because he or she deserves credit IMHO, had three cases with the same res judicata issue. The attorney requested that the Commission consider one of the cases first and then apply its finding to the others. The County sought to present argument in that case, and the Commission declined.
On appeal, the County argues that it was denied due process because the Commission’s decision in the other case was, effectively, the final word on the issue at that level. The Court raises an interesting point, which is that it has never expressly held that a governmental entity has due process rights in a worker’s compensation setting. Rather than resolve the issue, which was not raised by O’Neil, the Court assumed that due process would apply, but finds that it was not denied here.
First, the Court notes that the Commission’s rules do not allow for the intervening of disinterested parties to the claim. The County was interested in the legal issue, not the claim in the other case. Second, the County was permitted to argue the issue in its case, it was just disappointed that it had to do so in the face of the precedent for the other case — hardly a unique position.
The other two opinions today are both from criminal cases. The first Michael Angelo Street v. Commonwealth of Virginia is more or less a repeat of last week’s Montgomery v. Commonwealth, a 2-1 affirmance finding that the statutory elimination of “plain smell” of marijuana as a basis for searching a vehicle did not apply retroactively. I predicted that Montgomery would not be the last word on that issue, but I didn’t expect another case quite so soon. In Street there was no dissent, with Chief Judge Decker joined by Judges Athey and Chaney affirming Streets conviction upon a finding that the search was (at the time) lawful.
Finally, we have a split-decision in Jordan Darrell Morris v. Commonwealth of Virginia, a case involving the medical-amnesty statute, Code § 18.2-251.03, which shields from arrest or prosecution those persons who seek emergency medical assistance because they are experiencing a drug overdose. The facts are very specific here, but the broader issue of the appeal will have application in many instances. Specifically, that issue is whether the person claiming immunity for seeking medical aid for an overdose must actually be experiencing an overdose. That is, must there be medical evidence that the defendant was suffering a medical crisis, or is the subjective belief that he is sufficient to invoke the immunity of the statute.
Morris was arrested on his way to emergency room — indeed, the police found him in his vehicle stopped in the driveway of the facility. Morris was under the influence of some intoxicating pharmaceuticals and told the officers who stopped his vehicle that he was contemplating committing suicide by an overdose of those drugs, saying that that using drugs (crack cocaine, as it turned out) made him suicidal. He told the officers that he was at the emergency room to “get help.”
When tried for possession in violation of Code § 18.2-250 and DUI-D, Morris sought to suppress the evidence under the medical-amnesty statute. The Commonwealth argued that there was no evidence that Morris was seeking treatment for an overdose, or was in fact suffering an overdose. The issue was presented to the court on stipulated facts. The circuit court agreed with the Commonwealth that there was no evidence of a life-threatening condition from the ingestion of drugs which was required to provide immunity from prosecution. Morris entered a Alford plea and this appeal followed.
The majority, Judge Raphael joined by Justice Ortiz, concludes that the statute must be broadly construed both with respect to whether the existence of the life-threatening condition is present — the defendant’s subjective belief that he is in medical crisis being enough to satisfy that part of the statute. The majority also finds that suicidal ideation as a a result of ingestion of drugs is a life-threatening condition arising from an (over)dose. In other words, the majority reasons that if the drugs create or enhance a desire to commit suicide, the defendant as taken too many drugs, even if it isn’t the “overdoes” that is the direct cause of the medical crisis that can lead to death. The Court vacates and remands for a new proceeding on the motion to suppress under the standard articulated in the opinion.
One element of the case has to do with standard of review for the stipulation of facts and how they are to be viewed on appeal. The Commonwealth only reluctantly stipulated to the facts when pressed by the trial court, and argues on appeal (with the agreement of Street) that it is now entitled to a favorable view of the stipulations. The majority, in a footnote, disagreed, saying that stipulated facts are not in dispute and that the appellate court is in the same position as the trial court to weigh the stipulations. Now, what I find interesting about this is that in the first Virginia Appellate Academy to be held this week in Charlottesville, the sample case that the participants have briefed and will argue includes a stipulation of facts . . . and the question of the standard of review for stipulations might very well come up in the mock arguments.
Judge, now Justice, Russell dissents. Judge Russell says that the majority is making policy by interpreting the statute well beyond the plain meaning of its words. Specifically, the word “overdose,” in his view, has a clear meaning — a medical crisis in which an excess amount of pharmaceuticals produces a physical medical crisis that requires medical attention. The dissent in 19-pages and has much more to say about the actual facts of this case, but I think it is fair to say that this observation highlights the main point of contention between the majority and the dissent. While the question of whether the “overdose” is subjective or objective, one still has to agree on what an “overdose” is.
Before today, I would have assumed that Judge Russell’s definition was what was intended by the legislature — but by the same token, I don’t think I would have considered the position put forward by Morris and adopted by the majority. While I think Morris’s case is a weak one, I can certainly think of a similar fact pattern — the “bad trip.” Suppose the defendant’s life functions are not in danger, but the drugs are nonetheless causing him to have a psychotic break and he believes a demon has entered his body and he must cut it out by disemboweling himself — yet somehow he retains a sufficient awareness to seek medical help? As with the “plain smell,” I think we are bound to see more on this issue — though probably not as soon as next week.