With only one published opinion today and nary an unpublished opinion, the Court of Appeals of Virginia is sending 2021 out with more of a whimper than a bang. Even the one opinion, Kionne L. Pulley v. Commonwealth, does not deal with any new or earthshattering issues.
Mr. Pulley was imprisoned in the Augusta Correctional Center and was permitted to make phone calls including several made to Cherie Kemper. Now, for those who may not be aware of it, corrections officers and law enforcement are permitted to listen in on all phone conversations made by inmates unless it is to an attorney. Inmates should certainly be aware of this as there are warning on the walls saying that their calls will be monitored. Nonetheless, Mr. Pulley discussed with Ms. Kemper in (barely) coded language the acquisition of contraband and a plan to deliver it to the prison when she next visited. Although the opinion does not expressly say so, from the context that the particular officers listening in on these calls were investigating suspected trafficking of narcotics in the prison, one can guess that this was not the first time Mr. Pulley and Ms. Kemper had made such arrangements — particularly as Mr. Pulley was giving her instructions that suggested she had previously performed a less than stellar job as a smuggler.
In any event, after a search of Kemper’s abode where the drugs were found, Mr. Pulley chivalrously offered to shoulder the full blame, say that e was the one that “arranged for the drugs” and he would “take full responsibility.” He explained that Kemper had kids, and he did not want her to get in trouble.
Despite his noble intentions, Mr. Pulley was not above “objecting to nearly all of the Commonwealth’s evidence.” As relevant to the appeal, he objected that use of statements made during the monitored phone calls violated both hearsay and his right to confront a witness (Kemper) against him. The circuit court overruled these objections, finding that the evidence was admissible to prove the existence of a conspiracy, provided that the Commonwealth could connect the specific statements to actions in furtherance of that conspiracy. The court further ruled that the statements were not testimonial in nature and, thus, not subject to confrontation.
On appeal, Pulley argued that the Commonwealth failed to prove the existence of the conspiracy by independent evidence and, thus, Kemper’s statements were not admissible. The Court of Appeals notes that where evidence of a conspiracy includes statements that would otherwise be hearsay, the order of presentation of the evidence is within the discretion of the prosecution and, so long as there is independent prima facie evidence of the conspiracy, admission of a co-conspirator’s out-of-court statements is permissible. Here, although the hearsay explained the context of other actions taken by the conspirators, it was not the sole evidence of the conspiracy, and that additional evidence was sufficient to establish the requisite prima facie case.
The Court also rejects Pulley’s assertion that the recorded conversations were testimonial because they were created with the intention that they would be used at trial. There is a distinction between evidence in the form of spoken or written words collected for the purpose of use at trial and “testimonial” statements. Here, even though the parties should have known that the statements were being recorded and could be used against them, they did not amount to testimonial statements and, thus, there was no right to confront the declarant.
Pulley also challenged the sufficiency of the evidence, contending that the evidence failed to show that he attempted to obtain the specific drug found in Kemper’s residence rather than some other contraband or possibly an “innocent item” or that his intent was to distribute the drugs rather than use them for his own recreation. Naturally, these arguments fail because on appeal the evidence is viewed in the light most favorable to the Commonwealth with all reasonable inferences to be granted therefrom — and here the inferences we very reasonable. A third sufficiency argument was found to be barred by Rule 5A:18.
The Court of Appeals issued a single opinion today, and with it delivered an early Christmas present to the appellant in Michael B. Yourko v. Lee Ann B. Yourko. At least until the Court of Appeals starts hearing estate and trust cases, you can probably guess by the case style that this is a domestic relations case. The issue is whether the husband could seek to modify a final decree, equitable distribution order and division of military pension order under the trial court’s original jurisdiction. The trial court ruled that it no longer had jurisdiction and dismissed the husband’s motion for modification of these orders. The appeal is a Gordian knot of procedural issues that takes 18 pages to unravel, but the ultimate result is that the Court of Appeals finds that the trial court still had jurisdiction to consider the motion and remands the case for it to do so. Of course, there is no guarantee that the trial court will rule in husband’s favor, but at least he will get his day in court.
As my gift to you, dear readers, I will try to shorten the 18 pages of analysis to three paragraphs. Let’s start with the obvious — were the orders final in form and thus subject to appeal? The Court says yes, clearly they entered judgment and left nothing to be done. Next, were they subject to revision nunc pro tunc under 8.-01-428 due to a clerical error or mutual mistake of fact? No, says the Court of Appeals, the order was entered exactly as everyone had agreed. So what’s the beef?
Well, as it turns out, the military pension order, though final and not erroneous in form was wrong in content in that it violated certain provisions of federal law with respect to the division of husband’s military pension, and, thus, at least that much of the order was void ab initio, not merely voidable, because the state court does not have jurisdiction to enter an order contrary to federal law on military pensions. Now, in domestic cases, unlike most other forms of litigation, the “final judgment” is made up of several different orders which are entered at different times during the proceedings. Typically, the orders already entered remain under the jurisdiction of the trial court until the very last one is entered — so, one could argue that this order is the “final order” even though technically it is not.
The Court of Appeals notes that there is a split in prior case law as to whether an order (or, in this case, the collective orders dealing with the pension, equitable distribution and the final decree) can be selectively void — that is, void only to those parts that were beyond the court’s jurisdiction — or if a void provision is in the order, is the entire order void. The Court concludes that the issue is case specific — if the void aspects do not impact the non-void aspects, the case can be remanded solely to correct the void aspects. But here, the division of the pension would necessarily impact other decisions of the trial court with respect the equitable distribution, support, etc., so the entire order with respect to those elements is void and on remand the circuit court can make what ever adjustments are necessary to correct the judgment.
At this season of the year with the joy of religious celebrations and festivities for the coming of the New Year, it is unfortunate — but also perhaps necessary — that we will inevitably be reminded of the harshness of the world. Whether it is the tragedy of the recent natural disaster of unseasonable tornados, the need to provide for the poor who will not have a holiday meal, or the continuing pandemic and the political rancor that it has engendered, we are at once reminded that we are fortunate not to have such troubles at our own doorstep, but also that those troubles are often much closer to home than we would like.
The three published decisions of the Court of Appeals today all regrettably fall into the category of horrors which the legal profession and the courts must deal with. Two are criminal cases which detail cruelty to innocents, a child in one case, canine companions in the other. The third deals with a far more sensitive topic which, in its own way is perhaps the most horrifying of all, as it requires the Court to decide, quite literally, the fate of a potential human life.
On any other day, the case of Chelsey Danielle Ingram v. Commonwealth of Virginia would likely be the most upsetting and controversial. Ingram was found guilty of thirteen counts of animal cruelty. The issues on appeal were whether the circuit court erred in not suppressing the evidence of a warrantless search and whether the evidence was sufficient to sustain the convictions.
The 4th amendment issue was fairly straightforward as the law enforcement officers unquestionably entered on to the curtilage of the property without a warrant and there found considerable evidence that there were dead, dying and malnourished dogs on the property. The Court of Appeals, however, agreed with the trial court that the officers had not entered the property with the intent to gather evidence of a crime. Rather, they had responded to a “dogs on the loose” dispatch and, having found one dog dead in the roadway and other loose, had entered the property in an effort to find the owner. Their actions on the property did not amount to a search before they were able to see clear evidence of the dogs being in distress. Additionally, several of the dogs were in a wooded area some distance from the home and thus this evidence was subject to admission under the open fields doctrine.
The sufficiency issue was based on the novel argument that the condition of the dogs — dead, malnourished, and generally uncared for — was merely a reflection of their state “at one point in time” and, thus, failed to establish any acts of neglectful or deliberate mistreatment. Apart of evidence of the physical condition of the home — which is depicted in color photographs included in the opinion — the Court of Appeals points out the obvious flaw in Ingram’s “point in time” argument — any rational trier of fact would readily conclude that the dogs did not come to be in their deplorable condition suddenly, but that this was the result of an extended period of neglect. While it might be possible to hypothesize that Ingram had rescued the dogs shortly before they were discovered by law enforcement, there was certainly no evidence that this was the case, and as the courts are wont to remind us, a hypothesis of innocence must flow from the evidence and not the fertile imagination of the defendant or her counsel.
James Eberhardt v. Commonwealth of Virginia also deals with cruelty, but of a kind more savage as it involves the deliberate mistreatment of a child by a parent. While there are a number of statutes that can be used to bring charges in such cases, this case was brought under Code § 40.1-103(A), which is the child labor prohibition statute and its references to mistreatment and torture of children originally intended to address the mistreatment of apprentices and other child workers. More recently, however, this statute has been used to address mistreatment of children by caregivers where there is particular cruelty. Recent cases have included allegations of children being caged or forced to endure harsh environmental conditions as punishments for misbehavior or, worse, as “treatment” for developmental disorders.
Eberhardt apparently learned from his own experiences in youth the biblical maxim of “spare the rod, spoil the child,” explaining his use of corporal punishment on his 9-year-old daughter that he had as a child been beat[en] with switches and belts.” Proverbs 13:24, which Eberhardt incorrectly ascribed to Jesus, has been too often used as a basis for justifying corporal punishment. The literal meaning of the proverb, however, was never meant to do so — but was corrupted by the simplistic translation which appears in no authoritative version of the Bible. A literal translation of the original Hebrew would more properly read, “He who spares his son from judgment hates him, but he that loves his son instructs him earnestly.” The translation of “rod” as an instrument of punishment was a medieval concept, where as in late pre-Christian times the rod was a symbol of authority.
On appeal, Eberhardt contended that the punishment he administered did not rise to the level required by the statute, which requires proof that the child was “tortured, tormented, mutated, beaten or cruelly treated.” Eberhardt admitted to using a dog leash to repeatedly strike the child on her buttocks, asserting that he used the “webbed” cord in the middle, not the ends with metal buckles, because he “didn’t want to hurt her.” However, there was additional evidence of significant bruising and prior injuries on the child’s arms, legs and back as well. The Court concludes that this evidence far exceeds the “bounds of moderation and reason” that the common law permits when considering the parent’s right to discipline a child.
There are two additional points about this opinion that are worthy of note. The first is that the injury that the school nurse and resource offer first discovered to instigate the investigation was not cause by Eberhardt, but by the child’s mother, who had struck her arm with her fist three time and caused a significant bruising of which the child complained. The other is the transgression which engendered the beating and whipping — the child’s teacher had reported that girl talked too much in class.
The last of the published opinions today is the most disturbing, not because it involves a greater level of pain and injury, but because of the clinical and nearly emotion-free discussion of Shelleyan topic — the treatment of a human zygote as property in an equitable distribution following a divorce. I will respectfully decline to use the term “pre-embryo” that is used in the opinion. This, I should explain, is not from any particular religious, moral or philosophical concern, but merely the preference to use the correct scientific term from the stage of development. If you are not familiar with the precise meaning of these words, a simple explanation is that a zygote is created by the merging of the sperm and the ovum and this term applies to the development of the organism until the cells begin to differentiate into identifiable and distinct critical internal body structures — an embryo — and thence to a point of segmentation of external body parts — a fetus. In human reproduction, these three stages are defined as from conception to 2 weeks, 3 weeks to 11 weeks, and after 11 weeks.
The preceding paragraph was intended not so much as a lesson in biology as the demonstrate what is troubling about the Court’s opinion in Michael Herbert Jessee v. Michelle Evora Jessee. It is clear that for the trial court, the counsel for the parties at trial and on appeal, the Court of Appeals, and even the parties themselves in a very great degree, the discussion of determining the “ownership” and monetary value of a fertilized human ovum is just so much a workaday matter as deciding the possession of a collection Barry Manilow albums. That comparison is, admittedly, harsh, and I would like to believe that to the extent the various actors in this latter-day morality play had taken a sang-froid approach is as much to insulate them from the horrific nature of what is being contemplated as it is to a lack of emotional depth. Indeed, the two appellate counsel are both highly qualified attorneys with considerable experience of dealing with both the mundane and mortifying extremes of the justice system and I feel confident that, at least on their part, this was the case. Still, one cannot help but feel that this is a subject matter that really should not be one for a legalistic determination.
The facts are distressingly familiar in the pattern, if not in the specific object of the litigation. The Jessees married and attempted to bring a child into “the world in the usual way” as Harry Chapin put it, but after six months (generally a far too brief period for most fertility doctors to consider extraordinary means, but there may have been extenuating circumstances) turned to modern science. Eventually two viable zygotes were created, and one was implanted into the wife while the other was frozen. The wife miscarried the pregnancy, which was devastating to her and ultimately to the marriage.
In his complaint for the divorce, the husband specifically requested that he be awarded the remaining zygote and stated that it was intention to destroy it. He gave several reasons for this, including his desire not to be financial responsible for a child and also the “pain” of knowing that he potentially had a biological offspring. In its opinion today, the Court of Appeals notes that the first concern, while possibly a moral one, is not a legal one because there is an express statutory provision permitting a parent to disclaim (or rather, not accept positively) financial responsibility for a child conceived by artificial means with a pre-separation zygote by the other spouse. The fact that such a statute exists shows that this is an issue that is hardly novel — but that fact is also in some ways horrifying to me.
In any event, the wife indicated that she wanted possession of the zygote and stated her intent to seek to be impregnated and to bring the child to term. Her reasons were that, given her age, 43, she was not likely to be able to conceive a healthy child. As an aside, the myth of decreased fertility and increased risk of birth defects after forty is just that — a myth. Until perimenopause, the differences between a 15, 25, 35, 45 and even 55-year-old woman being able to conceive and have a healthy child are measured in fractions of percentages.
Again, I have verged into the clinical, perhaps because the difficulty of the underlying subject matter of this case simply requires avoiding the uncomfortable truth — we are talking about a human life, not a commodity. Granted, it is not yet a “person” under the law, but a zygote, whatever your spiritual beliefs may be — is not inert matter, nor is it is divisible — and it most certainly should not be given a monetary value.
So naturally, that is precisely what the husband insisted on when the circuit court awarded ownership of the zygote to the wife — he first wanted the court to explain its method for determining how to award possession and, presuming that this method was valid, to determine what his monetary compensation from the balance of the equitable estate should be. The circuit court gave a somewhat vague response to the first question — stating that it had weighed the equities. To the latter, it simply declined to assign a monetary value to Zygote, stating that it had no market value and no practical replacement value.
The Court of Appeals deals with this as a case of first impression, noting that while there is case law in other jurisdictions, Virginia has not had to consider the question of ownership of a zygote in the context of a divorce (it has occurred in the context of an estate), so there is no specific guidance on the factors to be considered or to the determination of the monetary offset (if any) to be made when the “property” is awarded to one spouse only.
The Court concludes that it cannot address the question of whether the zygote is “property” because the parties and the trial court treated it as such and, thus, it is the law of the case. I disagree that the Court could not have addressed this issue — I do not believe that the law of the case doctrine can bar a court from considering the fundamental nature of a thing. If the parties had agreed that a child was property with a monetary value or that a dog was to be treated as a child for purposes of determining child support, and the trial court had somehow allowed this, I do not believe that the Court of Appeals would have accepted this as binding. While I concede that the intertwined moral, ethical, religious and implications of this question are indeed complex — and unquestionably would have been better determined by the elected branches — I will simply take the position of President Truman when others complained that such decisions — such as dropping the atomic bomb — were too difficult. “The Buck Stops Here.”
The Court examines three approaches used in other jurisdictions to analyze the awarding of a “preserved” zygote — contemporaneous mutual consent, contractual, and balancing. The first of these in effect awards the “property” to both parties and the zygote(s) remain “preserved” until there is mutual consent to their use or destruction. The second applies only if there is a pre-existing agreement. The third, which I would argue the trial court applied here without specifically reciting its elements — weighs the parties’ respective interests.
Noting that the first approach is “disfavored” and finding that the Jessees did not have a contractual agreement, the Court concludes that the balancing of interest method should have been used in this case — and the Court clearly disagrees with me that this is what the circuit court did — or at least did not do so with clarity. So, the issue of ownership of the zygote will be remanded for reconsideration of specific factors set out on the opinion — and because it will be remanded, the Court declines to address the issue of whether the zygote has monetary value.