As this post’s headline intimates, when I began reading the sole published opinion of the Court of Appeal today, I immediately harkened back to an episode of Dragnet. Now let me be clear that I am not old enough to remember the radio version of the franchise or even to have seen the original run of the first television series. But I did see the first revival in first run and the original in repeats. So what was it about the opinion that sent me down nostalgia lane? I recall fondly an episode in which the primary investigation revolved around con-men posing as detectives and setting up marks with a bogus call-girl service which the “cops” would then reveal to be a sting operation. The mark would be offered a chance to pay a hefty fine to avoid being arrested for solicitation.
Now, you have to remember that this was in the days before ATMs, and the con-men obviously didn’t want to take a check made out the the LAPD. The mark had to come up with cash, so the mark usually had to go with one of the “cops” to a liquor store to cash a check (the store owner was in on the scam and charged a higher than usual fee to cash the check), then go back to the hotel to pay the “fine.”
Friday and Gannon were put on the case and set up their own sting, except when the “cops” told Gannon (playing the mark, of course, no one would believe Joe Friday would need to pay for it) the amount of the fine, he said he didn’t have that but his brother-in-law (Friday) could lend him the money. The kicker was they had to meet in front of the police headquarters so the brother-in-law would know it was “legit” and also asked the con-cops to tell Friday it was a fine for DUI because “he won’t have any trouble believing that.” You can probably guess the end of the story (except for the outro where we learn the sentences of the bad guys) — as soon as the con-men arrived at the station they were arrested (while other officers had already grabbed up the “call girl”). Two fellow detectives asked Friday and Gannon how they were able to arrest the perps right in front of the station, Friday replied, “It was easy. They just made one mistake.” <Dramatic pause for inquisitive look from other cops> “They thought they worked here.” Dun-Da-Dun-DUN!
Which brings us to William Joseph Morgan v. Commonwealth of Virginia in which the trial court found Morgan guilty of impersonating a police officer and carrying a concealed weapon while intoxicated. What makes this a particularly unusual opinion is that the appeal was limited to two issues that rarely make the Court of Appeals look beyond the one-judge order — sufficiency of the evidence and abuse of discretion in admitting evidence. I would like to think that this one made it to the merit stage for some reason other than to give the judges a good chuckle, but I will let you judge for yourself.
Our tale begins with our own Friday and Gannon of the Virginia Beach PD, Detectives Otranto and Bryant observing an undercover vehicle. It was the right model (Crown Vic), had the right styling, the right markings, the right vanity plate . . . wait, what? Yep, it had a vanity plate that read “SPC-COP.” As the court says, the presence of the vanity plate “indicat[ed to the detectives] that the Crown Victoria did not belong to the Virginia Beach Police Department.”
The detectives were in a marked car and as they approached the vehicle it began to be driven in a manner that was, shall we say, indicative the the driver was not attempting to keep his undercover profile from being discovered. The car sped away, swerved in traffic, red and white emergency lights were activated and flashed alternately in a strobing fashion similar to that of emergency vehicles. The detectives noticed there were other lights in the vehicle’s windows, though these were not illuminated.
After calling for back-up, the vehicle was stopped and the driver identified as Morgan. He told the first officer that he encountered that he had a firearm in a backpack that was on the front passenger seat, The officer also noted that Morgan smelled of alcohol. He was arrested and the car impounded, Subsequent examination of the vehicle showed that it was equipped with blue emergency lights in the front and read windows operated by the cigarette lighter (you youngsters know this as the “power point” where you plug in your phones). In the trunk was found more emergency lights including adapters to affix a light bar to the top of the vehicle, a spotlight, a fourteen-inch-long flashlight with the words “Police Security,” a dog muzzle, and a dog vest marked “K-9 unit.” Police also found a duffle bag in the trunk that contained several firearm holsters, two safety vests, a firearm magazine pouch, gloves bearing the word “police,” zip handcuffs, and a pair of sunglasses with a sunglasses case, both bearing the word “police.” In the passenger compartment was a badge marked with a thin blue line and the word “Special Officer,” a pamphlet for law enforcement services, a state police inspection form, and, get this, Morgan’s concealed weapon permit. Yep, the circuit court done give this bargain basement Barney Fife wannabe a carry permit. (OK, I am being a little hard on the Circuit Court as later evidence might indicate that Morgan was not entirely off the sanity reservation.)
Let’s cut to the chase (pun intended). At trial, Morgan argued that none of this evidence from the trunk was admissible because there was no evidence that he used any of it to impersonate a police officer. The Commonwealth responded that the items were relevant to show Morgan’s state of mind when he committed the offense and demonstrated that he had been “pretending” to be a law enforcement officer. The trial court agreed, admitting the evidence.
In his defense, Morgan presented testimony from a private security firm that Morgan was a licensed and certified security officer, that the equipment was all related to his job and that he was “permitted to install and operate red and white lights on his vehicle while on private property and write summonses for certain offenses.” The trial court convicted Morgan of impersonating a police officer and being in possession of a gun while intoxicated.
On appeal, Morgan contended that the evidence failed to show that he was “pretending” to be a law enforcement officer. The court notes that there is disagreement as to whether impersonation must be done with an intent to deceive, but concludes that it need not decide that issue because the evidence here clearly showed that Morgan intended for others to believe he was a law enforcement officer, driving his vehicle in a manner that, while reckless, was being done in a manner to deceive others that he had some authority to do so.
Now, you might be thinking, but what about the evidence from the trunk and the lights that he didn’t turn on? He didn’t use these things (at least when observed by the real cops) with an intent to deceive, so the Court overturned the admission of those and that’s why it granted the appeal, right?
Of course not. Quite the opposite. The Court agrees with the trial judge that the evidence, while not probative of the actus reus (the Court’s Latin legalese, not mine), it was probative of the mens rea (my Latin legalese, not the Court’s). That is, it was probative of Morgan’s state of mind. Because the Court was assuming the intent was an element of the offense, evidence of mental state was relevant. Q.E.D.
Still, the Court agrees with Morgan that taken individually, his erratic driving, the fact that he did not activate the blue lights, only the red and white ones, argue against his impersonating a law enforcement officer. But, he Court continues, this is “missing the forest for the trees,” because the totality of the evidence also included his manner of driving (which the police testified was similar to police tactics) and the fact that the vehicle was almost good enough to fool real cops (in fact, but for the vanity plate, it might have done so).
Morgan also had some creative arguments about why he was not guilty of carrying a concealed firearm while intoxicated. First, he was not a person “permitted to carry a firearm,” but “a person with a permit to carry a firearm.” The Court said this was straining the language of the statute too far. Second, he was not carrying a concealed weapon because his permit allowed him to conceal the weapon while in his vehicle. The Court said the law permitted an exception to illegally concealing a weapon while in a vehicle, it did not mean that the weapon was not concealed, which it clearly was, and in any case the exception only applies if the “person with a permit” is sober, and Morgan wasn’t. Finally, he maintained that the weapon was not on or about its person because it was inside the backpack in a holster. Interestingly, the Court did not find that the gun was “on or about his person” under the wingspan rule, noting instead that for this particular offense, the weapon need not be on or about the person — it need only be shown that a weapon was being carried in a concealed manner while the permitholder was intoxicated.
Oh, and ladies and gentlemen: the story you just read is true. None of the names have been changed to protect the innocent. And if you have never seen this sketch from The Tonight Show with Johnny Carson, you really have to watch it.
The Court of Appeals released its first published opinion of the new “term” on Tuesday – yes, I know that the appellate court’s in Virginia don’t really have “terms” because they never go into recess, but for so long as memory serves, the appellate bar – and even the courts themselves, have informally recognized a summer hiatus followed by a new appellate “year” starting in September, thus getting a jump of the US Supreme Court by a month.
Caine Calif Davis v. Commonwealth of Virginia deals with hearsay. Or rather, it doesn’t. Davis was charged with numerous offenses, the most serious being first degree murder and, as often happens when there are multiple felonies, a conspiracy to commit said murder. During his trial on this offense, the Commonwealth sought to introduce evidence of the conspiracy in the form of certain things said by an alleged co-conspirator, and Davis naturally objected that as the speaker of the words was not going to testify and, thus, would not be subject to cross-examination, the evidence was hearsay. The Commonwealth responded that the words were uttered by a co-conspirator and, thus, fell within a recognized exception to the hearsay rule as being relevant to prove the conspiring of Davis and the out-of-court declarant.
The circuit court ultimately struck the conspiracy charge as not supported by the Commonwealth’s evidence. When Davis then asked that the court also strike the evidence offered with respect to that charge – i.e. the words spoken by no longer alleged co-conspirator – the court declined to do so. Ah ha! It was hearsay without an exception and not subject to cross examination – anyone familiar with the Virginia/US Supreme Court series of cases of Benjamin Lee Lilly is anticipating an appeal and a swift reversal (or at least a lengthy analysis of why the error was harmless beyond a reasonable doubt).
But in the Court of Appeals opinion there is nary a mention of Lilly nor any other Sixth Amendment Confrontation Clause jurisprudence. Why? Because the Court of Appeals finds that there was no “hearsay” admitted in the trial. Wait . . . What? The circuit court overruled the objection to hearsay, didn’t it?
Yes. Yes it did. But as the Court of Appeal rightly points out, just because something is spoken (or written or texted or posted on social media or sent by semaphore) by someone who is not the in-court declarant of said words does not automatically make said words “hearsay.” Rather, the Court notes that before words can be hearsay, the words must be an “out-of-court statement offered for the truth of the matter asserted therein” and not subject to a well-recognized exception making hearsay inadmissible.
The Court notes that in most instances where a hearsay objection is asserted, the opposing side skips over the “statement offered for the truth” and asserts an exception. The trial court likewise considers whether the exception applies, rules, and the case moves forward.
In Davis, the Court concludes that skipping over the first element of the hearsay test was not a good idea in this instance. If you go back to the second paragraph of this post, you will note that I chose my words (literally “words”) very carefully – no where does it say the Commonwealth offered a “statement,” not that it was offered “for its truth.” What the Commonwealth did offer was as series of communications over a popular social media platform authenticated by the of the owner of the social media account who testified that she permitted the alleged co-conspirator to use account on her phone to set-up a drug transaction.
The Court of Appeals notes that not all words spoken or written are “statements.” A statement, says the Court, is “an oral or written assertion” about which the trier of fact is must make a determination of credibility – it must be something that is provably true or not. Had I been drafting this opinion, I might have been tempted to include a footnote by way of example by quoting J.K. Rowling’s Harry Potter and the Philosopher’s Stone, “‘Welcome to a new year at Hogwarts! Before we begin our banquet, I would like to say a few words. And here they are: Nitwit! Blubber! Oddment! Tweak!’” Dumbledore undoubtedly says “words,” but despite the many arguments of Potterheads about their meaning, the author as consistently maintained that the headmaster was merely making a joke by saying a random assortment of odd words. “Nitwit! Blubber! Oddment! Tweak!” is not a “statement.”
The Court continues, “Additionally, statements are only inadmissible hearsay if they are offered for a particular purpose: to prove the truth of the matter asserted therein. If the value of the evidence is not tied to its credibility—i.e. is not offered for its truth—then the hearsay rule does not operate to exclude it.” Harkening back to my reference to the boy who lived, the Court concedes that “the mere incantation that the statements are not offered for their truth is not sufficient for a court to admit such statements; the actual use at trial by the proponent is a relevant consideration when determining the purpose for which an out-of-court statement is offered.
It should be noted at this point that the Commonwealth made no such assertion in this case – and that begs the question whether the Court of Appeals hasn’t strayed off the reservation in deciding to broach the subject at all. However, as is far too often the case, it is presently the rule in Virginia that only the appellant is barred from making new arguments of appeal – neither the appellee nor the appellate courts are prohibited from introducing new and novel lines of attack against finding error after the trial is over.
The Court of Appeals concludes that most of the “out-of-court statements contain[ed] no factual assertions whatsoever but are instead non-assertive inquiries or instructions” that were relevant to establishing Davis’ guilt of any of the offenses. Although the court acknowledges that there were two statements of fact – although one was actually a misstatement of a fact (a lie), it was nonetheless provably true or false, neither of these was offered to establish Davis’ guilt of the crimes with which he was charged other than the alleged conspiracy. At best, they showed a concert of action between Davis and the co-conspirator to set up a drug deal – not to commit a murder.
Davis contended that the evidence was offered to prove that he and the alleged co-conspirator were using the pre-text of a drug deal to lure the victim into a position where he could be ambushed. The Court, however, says that none of the statements proved the existence of such a plan and, thus, were not offered for their truth with respect to the crimes (other than the conspiracy) with which Davis was charged and ultimately convicted.
My take on the opinion in this case is to quote Lt. Holden (Tony Curtis) to Capt. Sherman (Cary Grant) in Operation Petticoat, “Sir, in Las Vegas, the boys would say you’re trying to make your point the hard way.” While I am not a great fan of harmless error, especially in Confrontation Clause matters, I do think this case was a better candidate for finding the two highly innocuous statements that were assertions of fact as being harmless, rather than not hearsay. Put simply, the Court should have opted for the path of least resistance here instead of wandering down a path that neither the lower court nor the parties had chosen to follow. The Court has been doing this a great deal lately, and it seems to be doing so merely for the academic exercise of demonstrating that if trial counsel and trial court had the time and staff to research the law more thoroughly, objections, responses and rulings would be broader and more erudite. But that is not how trials work.
For the media report of this story, see The Roanoke Times. My view of this incident is a little different — Judge Dillion had ruled and told the attorney to move on, but he persisted, she ruled again, but he persisted, she then told him to make his proffer (which does not require the judge to be present as its not part of the record relevant to her decision, only for appeal) and left the bench instead of holding the attorney in contempt. The judge was actually helping the attorney avoid being fined and possible jailed by absenting herself so that she was not forced to cite him (and thereby giving the defendant grounds for appeal). The US Attorney is correct that the argument was neither relevant to the purpose of the proceeding nor based on more than the “gossamer imaginings of defense counsel,” as one appellate court has referred to these types of arguments.
I have a new name for them . . .Post-Truth America Arguments. For at least the last five years, and I would argue that it started before the Trump campaign and presidency — certainly at least as far back as birtherism and in tracing its origins one could probably go back the Army-McCarthy hearings in which the Senator infamous proclaimed that he had documents proving {insert ever increasing number here} members of the Defense Department were Soviet spies and avowed communists — America has been plagued by a “belief” that objective truth does not exist. This belief — delusion is a better word — has been slowly creeping into our courtrooms for years, but has suddenly become a torrent, with criminal defense attorneys (and sometimes prosecutors) making assertions based not on facts, but upon a world view in which all public servants are corrupt, the government is the enemy of he people, and only they — the ennoble and embattled few who see the truth — can see clearly how rotten the system is.
How did we get to this point? Not having the training in sociology and psychology that would allow me to give a competent answer, I will not attempt to do so. But I will suggest that, at least as to America’s courtrooms, attorneys behaving as they ought, is the first step in combating it — and the attorney in this case was not behaving as he ought. A courtroom is supposed to be a place where we seek the truth, not disregard it. I realize that attorney arguments are not “evidence” and thus are not bound by the witness’ oath to speak “the truth, the whole truth, and nothing but the truth,” however, attorneys are bound by their ethical duty to address the court with candor even while zealously defending their clients. In my opinion, this attorney took the former principle to an unreasonable extreme when he wholly abandoned the latter.