The Court of Appeals released three published opinions and five unpublished opinions today. If one didn’t know better, you might suspect the Court was clearing the decks before the summer hiatus (Editor’s note: One does know better and that is exactly what the Court is doing, look for more opinions leading up to the Fourth of July Weekend).
Romario Bailey v. Commonwealth of Virginia involves a misdemeanor appeal from a case that originated in a General District Court, which is a fairly rare animal to see in a published opinion. The issue is whether the circuit court erred in denying a continuance on the appeal date. Bailey represented himself pro se on an assault charge in the General District Court – the opinion recounts the nature of the offense, but as it isn’t germane to the issue on appeal, I will refer you to the opinion if you wish to know the details. What is germane is that Bailey hired counsel for the de novo appeal, and he and his counsel appeared on the trial date. Counsel immediately requested a continuance because there were two witnesses who were not present and were, counsel contended, essential to Bailey’s case.
We pause here to give a two brief practice points for any novice attorneys out there: If a witness is essential to your case, subpoena them. I don’t care how much they assure you that they will be present, how much they love, cherish, and respect your client, or how inconvenient it is for you to have the subpoena issues. Subpoena them. Full stop.
Next, misdemeanor appeal days are probably the least favorable days to ask a circuit court judge for a continuance. No, strike that. The ARE the least favorable days to ask for a continuance. Appeals from misdemeanor convictions just don’t rate that high on the circuit court’s list of “things I really enjoy about this job” for the judges. If you need a continuance, ask in advance (the earlier the better). If you just want a continuance, suck it up. If your schedule is too busy and you think that the misdemeanor appeal should be continued so that you can go to that deposition two counties over, prepare to be on the circuit judge’s persona non grata list (persona non grata is Latin for a four-letter euphemism for excrement). Misdemeanor appeals are great for letting an associate cut their teeth on circuit court practice, so when agreeing to take the case, make sure you explain to the client that your very competent associate may do the actual trial. If you don’t have an associate, see the response to what to do if you want, but do not need, a continuance.
Now, back to our original programming. It turns out that Bailey had retained his counsel just three days prior to the trial. He gave the court some reasons why he had delayed in hiring counsel, but the circuit court appeared unmoved. The Court of Appeals added a footnote at this point to say that neither Bailey nor his counsel had made any attempt to seek the continuance during those three days. The circuit court “respectfully denied” the continuance but moved the case to the end of the docket to allow Bailey and his counsel time to prepare. (A lesser mind would think that the court was making sure that Bailey’s counsel had to remain in the court rather longer than anticipated – a lesser mind would be wrong; the court was making a genuine effort to give Bailey a fair shot – the inconvenience to counsel was just a bonus).
Now let me suggest that Bailey’s counsel was perhaps not well-versed in criminal cases, or at least not in the more formal procedures that apply to the circuit court. Suffice to say that the Court of Appeals notes several deficiencies in counsel’s performance: 1) counsel did not make a formal objection to the denial of the continuance on Sixth Amendment grounds (or really any grounds); failed to make a motion to strike at the end of the Commonwealth’s evidence; asked to proffer the expected testimony of the witness, which the circuit court said it would allow, but counsel then conceded that he had not spoken to either witness and had only Bailey’s assurance that the witnesses would support his version of events; and did not move to strike the evidence at the close of the case.
After he was convicted and sentenced, Bailey hired new counsel – but this counsel proved no more adept at the niceties of trial practice. The new counsel filed a motion for reconsideration 14 days after the sentencing order was entered. This motion set out the arguments that the original counsel should have made at trial.
Counsel did not file a corresponding motion and order to suspend the judgment or request the circuit court to act on the motion within 7 days. Now the circuit court again stepped in to try to make sure that Bailey was getting a fair shake and sua sponte set a hearing on the motion on the 21st day following the sentencing order, heard argument, and “respectfully denied” the motion for reconsideration from the bench (more about this ruling below).
Experienced hands know where this going – the order denying the motion was not circulated and entered by the circuit court until the following day – the 22nd day after the final judgment. No one could argue that the judge, having given Bailey a break by setting the hearing on the last possible day should have entered a bench order at the end of the hearing. But the judge was certainly not required to do so – and counsel should have known that the Rule 1:1 deadline was at hand and acted with expedition.
It will come as no surprise that the Court of Appeals finds that the appeal, which challenged the denial of the continuance for the reasons stated in the motion for reconsideration, was not subject review because the circuit court never ruled on the motion while it had jurisdiction over the case. Trial courts speak only through their orders, and here the order was entered 1 day beyond the court’s jurisdiction to do so.
So, what about the ruling on the motion for reconsideration? If the appeal had not been barred, would the Court of Appeals have reversed and remanded for a new trial? Probably not. “But, but, but . . . you said the motion had all the right arguments!” Yes, it did, but these were arguments that should have been made at the trial not 14 days later. The contemporaneous objection rule doesn’t apply just on appeal – the circuit court was within its discretion to decided that the arguments of the motion came too late. As for Bailey, well he has adequate grounds for a habeas action as I think there is ample evidence of ineffective assistance of counsel. However, he will also have to prove that but for these errors the result of the criminal case would have had a favorable result and given the he said/she said nature of that evidence, and a certain sense one gets that Bailey was less than credible and his “witnesses” have never been placed under oath, I seriously doubt the court will find his acquittal was close to a sure thing.
Moussa Moise Haba v. Commonwealth of Virginia involved Code § 18.2-386.1 (not 286.1 as mistaken stated in the summary on the Court’s website), which makes it a crime to take photographs of a person without their permission through surreptitious means in a situation where the person would have a reasonable expectation of privacy. Basically, were talking about “peeping tom” situations aided by advance technology.
Now, the facts of this case are not the usual “hidden camera in the restroom” scenario. The victim and Haba were acquainted over social media and eventually the victim agreed to meet with Haba at her apartment (never a good idea when first meeting someone from known only through social media). Things did not go well. Haba was “very controlling,” and claimed to already have videos of the victim that he would turn over to “the Saudi authorities.” The victim was a Saudi national and in the US on a government sponsored scholarship. Using this as leverage, Haba coerced the victim into permitting him to video her undressing. She initially shielded herself with a blanket, but Haba insisted that she drop the blanket. She then tried to cover herself with her arms. Following the incident, the victim contacted police, and Haba was arrested, who was charged with abduction and the violation of Code § 18.2-386.1.
Regrettably, the jury found the evidence of abduction to be insufficient (I am not saying it was a slam dunk, but had Haba been convicted, I would not have expected a reversal for lack of sufficient evidence). The jury did convict Haba of Code § 18.2-386.1 with a sentence of 10 ½ months, a sentence that I feel is inadequate, but the maximum sentence of 12 months — Code § 18.2-386.1 is a class 1 misdemeanor – would hardly have been adequate either. Unfortunately, the law does not always correspond in severity to the specific facts of a case.
Haba’s appeal was limited to challenge only one aspect of the elements of Code § 18.2-386.1 – whether the victim had a reasonable expectation of privacy under the facts of the case. After all, Haba contended, he was right there in the room with her, and she knew he was videoing her. I am pleased to say that the Court of Appeals response was, and I am paraphrasing here, “Perhaps, but there was a helluva lot more going on than just that.” In short, everything about the situation suggested that Haba was using extraordinary pressure to force the victim to surrender her expectation of privacy and she was doing everything possible to maintain it.
One final note. I started this post off by mentioning that published opinions dealing with misdemeanors originally appealed from the General District Court were rare animals – yet here is another misdemeanor conviction as the subject of a published opinion. Except this is not a case of an appeal from a case originally tried in a General District Court. Because Haba was also charged with a felony, the misdemeanor was tried in the circuit court in the same trial as the felony. Still a pretty rare animal.
Michael Moreno, s/k/a Michel Moreno v. Commonwealth of Virginia is the only case from the published decision of the week from felony convictions, and they are serious ones: first degree murder and felony hit and run. The facts are more tragic than sinister. Moreno lived with his mother, who contracted lung cancer. His sister Nancy become the principal caregiver for the mother during a length hospital stay. Moreno believed that traditional treatments were not effective and urged his sister to try alternative therapies, but she disagreed. Eventually the mother was returned home – although the opinion does not expressly say so, it appears this was for hospice care.
After the mother died, Nancy remained in the home to care for Moreno. Moreno told several people that he blamed Nancy for their mother’s death. On the July 12, 2018, Nancy had to travel for work and arranged for Moreno to drive her to Dulles Airport. Under circumstances that were not entirely clear, Moreno pulled the vehicle to the shoulder near Dulles, Nancy exited the vehicle and began walking toward the airport. As observed by two witnesses, Moreno then drove forward at a high rate of speed directly at his sister then drove away at high speed after striking her and driving over her. One motorist pursued the fleeing vehicle and called 911. Another motorist, who also observed the accident, stop to render aid. Nancy was transported to a nearby hospital but died soon after.
Police identified Moreno as a suspect and, when unable to contact him on his cellphone, obtained the location of the last “emergency ping” from his phone. Using this data, police were able to locate Moreno at a casino in Anne Arundel, Maryland, and the vehicle he had drive was in the parking lot. When approached by police, Moreno immediately asked “How is my sister?”
Following his arrest and indictment, Moreno sought to suppress evidence collected from the vehicle at the casino. Moreno contended that unlike “historic” cellphone location data, which he conceded has been found to be proper evidence to show a defendant’s whereabouts, the use of “live” data to track a suspect was an invasion of privacy. The circuit court overruled the motion and following a jury trial Moreno was convicted and sentenced to 38 years’ imprisonment.
On appeal, Moreno again asserted that it was improper for police to obtain live cellphone data without a warrant to ascertain his location and, thus, any evidence derived from his arrest at the casino was “fruit of the poisonous tree.” The Court of Appeals, “assuming without deciding” that a warrant would normally be necessary, holds that probable cause and the exigent circumstances justified the warrantless “ping” of the cellphone. The Court reasoned that one of the exigent circumstances permitting a warrantless search is the pursuit of fleeing suspect who may present an ongoing danger to the public or be in the position to destroy evidence.
I suspect that this case may be of interest to the Supreme Court of Virginia, if not the United States Supreme Court, presuming that Moreno decides to pursue the matter. This is a developing area of the law and by no means settled.
Something not mentioned in the Court’s opinion is that Moreno has “neurocognitive disorders,” which were caused or exacerbated by a head trauma 25 years ago. Family members testified that he was “odd” and difficult to relate to. Additional reports of the trial give a vivid picture of how this tragedy has impacted Moreno’s other siblings. What is clear from these reports is that Moreno was not receiving any outside assistance from the government or private organizations during the many years leading up to the murder. It is not difficult to speculate that the stigma attached to mental health disorders that persists in this nation was in part responsible for his isolation and inability to cope with the reality of his situation. While this is not ground to excuse his brutal act, it is yet another example of how we continue to fail those who are the least among us.
Blake Andrew Mitchell, Jr. v. Commonwealth of Virginia is a published opinion from the Court of Appeals from a case previously refused an appeal, but which was remanded following an appeal to the Supreme Court in the rare instance of a “GVR” order. A GVR, if you are not familiar with the term means that upon review of the petition for appeal, and without need of further briefing or argument, the Supreme Court “grants the petition, vacates the judgment of the lower court, and remands the case to that court for further proceedings” consistent with instructions given by the Supreme Court. In this case, those instructions were “for further consideration in light of the decision of the United States Supreme Court in Kansas v. Glover, ___ S. Ct. ___, No. 18-556, 2020 WL 1668283 (U.S. Apr. 6, 2020)[,]” which had been decided while Mitchell’s petition for appeal was pending in the Virginia Supreme Court. The issue is whether evidence obtained following the stop of a vehicle in which Mitchell was a passenger should have been suppressed because the police had an insufficient basis for stopping the vehicle.
The incident happened in the wee hours before dawn on All Hallows’ Eve of 2017. An officer observed a vehicle being driven in a lawful manner by a black female. For reasons not disclosed in the record, the officer decided to “run the plates” of the vehicle, and learned that the registered owner, a black female whose “descriptors matched the driver from what [the officer] could see from [his] vehicle to their vehicle,” was the subject of a “possible warrant.” Activating his emergency lights, the officer stopped of the vehicle.
The driver identified herself as someone other than the registered owner of the vehicle, although the officer stated that he again observed that driver matched the “descriptors” of the registered owner. The officer also observed that Mitchell was not wearing a safety belt.
Shortly after the stop began, another officer arrived and began to question Mitchell through the passenger side window while the first officer questioned the driver. The second officer observed a “pill container” hanging from Mitchell’s waistband. Meanwhile, the first officer returned to his cruiser and learned that Mitchell was wanted on an outstanding warrant.
When the officers directed Mitchell to exit the vehicle, he “resisted them,” and made a “throwing motion.” When Mitchell was subdued, the officers noticed that only the top of the pill container was still attached to Mitchell’s waistband. The bottom of the pill container was found on the floorboard of the passenger seat and contained “what appeared to be controlled substances.” Officers also found a plastic baggie of “what appeared to be cocaine” on the ground near where Mitchell had been standing. Laboratory analysis confirmed that the substances were hydrocodone and cocaine.
Mitchell sought to suppress the evidence on the ground that the officer’s knowledge that the registered owner of the vehicle was potentially the subject of a warrant was not sufficient to permit the stop because the officer lacked sufficient reason to believe the driver was the registered owner. The circuit court refused the motion, finding that the physical similarity between the driver and the description of the registered owner made the stop reasonable.
We pause here to play Monday morning quarterback. In my view, defense counsel made two errors here. First, the Court of Appeals noted that counsel conceded that the registered owner potentially being the subject of a warrant was sufficient to permit the stop if the vehicle was being driven by the registered owner. I have to say that there is a wide gap, in my view, between definitely being the subject of warrant and potentially being so. In this day of ultra-fast communication, I don’t think it is unreasonable to assert that the police should know whether a warrant is outstanding or not. If Walmart can upload its sales data in real time, police and court records should be just as current or nearly so.
The second error, again with the benefit of hindsight, is that counsel apparently did not argue that once the officer had verified the identity of the driver (and likewise observed that the other passenger was clearly not a slightly built female), the basis for the stop ended. Mitchell wasn’t wearing his safety belt, but the vehicle was also not moving, and there is no evidence that it wasn’t buckled when the vehicle was in motion. I would have to check the legislative history to see if October 31, 2017, falls into the window during which not wearing a safety belt was a primary basis for a stop (I think it was), but even so, I can’t imagine the officer was going to hold the vehicle for that reason.
Resuming our main thread, we already know that Mitchell appealed the overruling of the suppression motion to the Court of Appeals and had his petition denied, then Glover was decided at some point while Mitchell’s further appeal to the Supreme Court was pending, occasioning the remand to the Court of Appeals. In its opinion following remand, the Court of Appeals notes that Glover actually supports the overruling of the suppression motion because the 8 justice majority rejected the argument where the police know only that a registered driver has some impediment to being free and driving around (in Glover the registered owner — who was in fact the driver — had a suspended license, but argued that the officer couldn’t be sure that the driver was the registered owner) this does not necessarily lead to an unlawful stop. Rather, the Court of Appeals notes, like any other traffic stop, the issue is whether the totality of the circumstances support the reasonable, articulable suspicion necessary to affect an investigatory stop. Here, the police knew that the driver was a slightly built black female and so was the registered owner who was potentially a fugitive, and that was a sufficient basis for an investigatory stop. Q.E.D.
Now let’s return to the Monday morning quarterbacking. The Court of Appeals seemed troubled not at all by the less than certain nature of there being an open warrant for the registered owner of the vehicle. Indeed the Court emphasizes “the existence of which was confirmed prior to the stop” — the “of which” apparently referring to the warrant for the car’s owner. This sentence may lead the reader of the opinion to presume that the existence of an actual warrant was confirmed, however later in the opinion it is clear that what was “confirmed” was that there was a “possible warrant.”
As to whether the argument that the stop was lawful only until the officer was able to confirm that the registered owner was not in the vehicle, well I must concede that there are certain problems with that approach. First, events sort of overtook the initial basis for the stop when the second officer arrived and began what was strictly speaking a consensual conversation with Mitchell. Second, while one might argue that, since the second officer had not communicated any information regarding his suspicions, the first officer had no business running Mitchell’s name after learning that the driver was who she claimed to be (and had no warrants), the officer was certainly not breaking any laws by doing so any more than when he ran the plates. Finally, the officers probably would have been justified in holding the vehicle longer to verify that the driver had permission from the owner to be in possession of the vehicle — that’s maybe a bit of a stretch, but perhaps the issue will be raised in another case someday.
Time for another mini-rant. A client of mine has been out of work through most of the pandemic and has struggled to get government assistance, as the rules for getting and maintaining unemployment were constantly shifting. She has a good work history as both a FOH and BOH employee in food service with some management experience. He previous employer had promised to rehire her when he was able to reopen his restaurants, but decided to only reopen one and to staff it with family and other staff with more tenure (she had been a shift manager at the other restaurant, but the staff at the “original” location had been there for decades).
She has been actively seeking a new job at an entry level, but was not getting any offers — mainly because the competition was very stiff — there were lots of applicants with equal or better qualifications applying for wait staff positions. This week, she was hired by another restaurant, getting the job in part because she knew the BOH manager. She was excited to have a job and be back at work — not despondent at “losing her unemployment.”
The belief that unemployment and lack of adequate staff in service jobs is all about “lazy Americans who don’t want to work” is belied by the numbers. The unemployment problem in the US is not lack of jobs — 9,000,000 new job openings in May — or lack of workers — 6,100,000 new hires in May — but of the mismatch between available jobs and workforce location and skills.
The jobs are mostly in areas where employment is already back to “statistical full employment” and, thus, the available pool of potential employees consists of those “marginally attached to the workforce.” These are are not all “shiftless lay-abouts on unemployment” but students, single parents, stay-at-home moms, older people transitioning to retirement, people who have no access to transportation, people caring for a family member, and others who cannot commit long-term to a “regular” job. Meanwhile the workers who want full-time employment are in areas, like my client, that have an excess of people seeking jobs, often with skill sets that exceed the requirements of the jobs available.
Before COVID, the ratio of available jobs to available workforce was approaching 3 to 1 and the actively employed workforce was at an all time high. Both the Obama and Trump administrations tried to find strategies to “entice” people to enter the workforce, including campaigns to encourage those over 68 to “take advantage” of the new rules that allowed them to earn unlimited wages or income without a reduction in Social Security — a law that was enacted at the behest of business interests, not workers. Other programs actually encouraged younger people to “skip college” and start earning now (actually, given the crushing debt that can be incurred through student loans, probably not bad advice, but that was not the motive of the campaigns).
So why are there so few workers in the “active labor force”? The main reason is that we baby-boomers (I am in the last half-decade of that category) are now retiring in record numbers — as many as 400,000 per month — a trend that started before the COVID Pandemic, but which has increased significantly during the last 18 months as many workers found that they could “make it” on their retirement or simply decided that going back to the 9-5 was not that enticing. The groups that are in their prime working years — the baby-busters of Gen X and the Millennials — have the highest rates of employment and, thus, have no real elasticity to add to the workforce. Meanwhile, Gen Zers are still completing their educations, starting families, or are already in the labor force.
The US is not alone in this dearth of workers — in fact, in comparison to most other developed countries, the US is much better off. One of the reasons that we have a higher workforce participation rate in the US is the lack of government programs for the unemployed — most specifically the lack of universal healthcare and guaranteed housing.
This is also not a new problem. While many remember the “feminist revolution” as a courter-culture movement of the 1960s and 70s, it was in fact very popular with business interests, who saw in educated middle class “stay at home” mothers a new potential pool of workers (albeit, below a glass ceiling). The trend in delaying marriage among young women and the concept that it was possible to “have it all” with a career and a family, was likewise a real feminist trope, but also a cynical move by business to attract and retain a workforce that was cheap in comparison to the traditional pool of male workers. The gender pay-gap is not just about gender — it’s about keeping the bottom line healthy.
This is why many business interests, which are otherwise supportive of conservative policies, oppose immigration restrictions. As the pool of cheap(er) native employees has shrunk and women have begun to make strides into upper management, business needs a new source of low-cost labor to keep profits rising.
The simple fact is that, like any complex national or international issue, reducing the US’s unemployment problem to a sound-bite is not helpful to finding a solution. In fact, it is counter-productive to doing so when the sound-bite is accept as “unquestionably true and the only cause” of the problem.