Toni Sue Stacey v. Commonwealth of Virginia addresses an issue that is normally confined to the general district courts and which is, perhaps ungraciously given the deep emotions that are often involved, colloquially known as a “doggie death penalty case.” The disposition of dangerous animals is a serious matter, and even more so when it involves criminal charges against the dog’s owner. Stacey is the owner of Niko, a dog that previously had been designated as dangerous pursuant to Code § 3.2-6540 of the Comprehensive Animal Care Act after Niko attacked another dog. Niko subsequently attacked and killed a domesticated cat, which led to a criminal charge against Stacey under the same statute, which defines several offenses that can occur as a result of the owner of a dog previously declared as dangerous not following the court’s order with respect to future control of the animal, either negligently or maliciously, which can range from a Class 2 misdemeanor to a Class 6 felony.
Stacey was convicted in 2015 of a misdemeanor violation of Code § 3.2-6540 and sentenced to 90 days suspended on condition that Niko be euthanized. Stacey appealed this conviction, challenging only the sufficiency of the evidence, and her appeal was denied. Before the euthanizing of Niko was carried out, however, Niko’s co-owner (who apparently had not been charged with an offense) filed a civil action which involved the ownership of the dog and obtained a stay on the euthanizing of Niko.
When the stay was lifted in 2019, Stacey sought to forestall the euthanization order by asserting that the circuit court lacked the authority to order Niko to be put to death, asserting that the disposition of a dangerous dog is under the authority of the local animal control office pursuant to Code § 3.2-6562. The circuit court denied her motion and Stacey appealed.
Some readers may be wondering, “How can she appeal the judgment again? She already had an appeal in the criminal case.” The answer, of course, is that her motion attacked the jurisdiction of the circuit court, and lack of jurisdiction renders a judgment void. A void judgment can be attacked anywhere, anytime, and the decision on that issue can be appealed.
So, did the Court of Appeals address the merits of her Code § 3.2-6562 argument? No, because her challenge, which was procedurally proper, was based on a flawed interpretation of the proceedings in the circuit court. The circuit court’s jurisdiction to order the euthanizing of Niko did not arise from the CACA (yes, the abbreviation of the Comprehensive Animal Care Act is “caca”), but from Code § 19.2-303, which grants circuit courts the authority to suspend a criminal sentence on a condition of probation “as the court shall determine.”
The Court of Appeals concluded that because Tracey did not challenge the terms of the suspension of her sentence in her first appeal, it became the law of the case. Thus, her appeal was not a permissible attack on the court’s jurisdiction, but an impermissible collateral attack on the terms of her sentence, which had already been upheld in the prior appeal.
Astute readers will have noted that, just like the never-ending process of appeal in human death penalty cases, Tracey has managed to give Niko six to seven additional years of life while the two appeals and the stay in the civil suit have worked their way through the judicial system. It is even likely that Niko is now approaching an age when being “put down” might be considered a mercy.
Today is a red letter day for John S. Koehler, P.C. This morning I filed my first ever brief in the Supreme Court of Virginia — and now some poor staff attorney (or maybe a law clerk) will have to read it. To that person I say, “Thanks for not laughing out loud.”
In truth, the issue is one of some note and I would be chagrined if it was laughed at because it involves constitutional due process — Whether the Court of Appeals erred in finding that a violation of the defendant’s right to confront a witness against him was harmless beyond a reasonable doubt. What is interesting about the case is that while the standard of review for all constitutional due process issues is the that it must be harmful beyond a reasonable doubt, the application of that standard is different for Confrontation Clause cases, or at least that is the argument I have present to the 9th Street Side of the Appellate Courts Building. In the Court of Appeals, the cases cited by the Court did not apply what I consider to be the appropriate review — did the improper evidence have any tendency to influence the jury’s verdict. Rather, those cases applied the simple “but for the improper evidence was the remaining evidence sufficient” to prove guilt beyond a reasonable doubt? Only one even remotely invoked Confrontation in a jury trial, and in that case the evidence the defendant had want to use as rebuttal against the victim was admitted in other testimony of another witness. In other words, none of the case relied on by the Court dealt with improperly admitted evidence not subject to confrontation.
Now, had the Commonwealth rested its case just before the improper evidence would have been admitted, I think it was more than likely the jury would have convicted — so under the standard used by the Court of Appeals, the judgment would have been upheld on appeal, But once the Commonwealth (against all expectation) was able to introduce hearsay statements of an alleged accomplice who had asserted his Fifth Amendment right when called as a witness, I think the quantum of evidence got a big boost of credibility, and that is the standard that ought to apply — that is, did the jury consider this evidence as the “nail in the coffin” of what was otherwise a highly circumstantial case?
Watch this space for updates!
The lone published opinion from the Court of Appeals of Virginia today is Juan Luis Lopez v. Commonwealth of Virginia. What immediately caught my eye in this case before I was through the first paragraph was the nature of two of the charges against Mr. Lopez: disarming a law enforcement officer of his impact weapon, a baton, in violation of Code § 18.2-57.02 and attempting to disarm a law enforcement officer of his stun weapon, also in violation of Code § 18.2-57.02. Now I will be forthcoming in telling you that this is the first time I have heard of this offense. Granted, it wasn’t enacted until 2001, well after my glory days of reviewing countless criminal appeals, but nonetheless given the frequency with which criminals engage in donnybrooks with the men and women in blue (or brown or green as the case may be), it seems to me that a prosecutor looking to ladder up the charges against a defendant would be able to make a good case for “attempting” to disarm an officer if the officer has any type of weapon close to hand (which they typically will). The reason why this is perhaps not the case is the subject of one of the issues addressed in today’s opinion – what evidence will prove that the defendant intended to disarm the officer in order “to impede or prevent any such person from performing his official duties.”
The facts of the case are, as they so often are, nothing new. It all started with a complaint of a “loud party” at which Mr. Lopez was in attendance. It so happens Mr. Lopez was also wanted by the police in connection with a prior assault and battery and the subsequent failure to appear. [Editorial comment: When you know that they cops are looking for you – or at least will have reason to detain you if you pop up on their radar – don’t attend loud parties.] The two officers who responded, Lopez was the first person with whom they “came into contact.” The opinion does not set the scene, but from subsequent events it is clear that this encounter occurred outside in the street where the party was at least partial being held.
Upon confirming Lopez’s identity and learning that he was wanted, one of the officers advised Lopez that he would be attending a different kind of party at the magistrate’s office and asked him to come along quietly. Lopez didn’t. After a brief tussle, Lopez ran toward a residence (his as it turned out). Before Lopez reached the house, the office deployed his “stun weapon” into Lopez’s back. Lopez entered the home, closed the door and “fell onto a sofa.”
Now this is where the opinion gets a little hinky, in my opinion, as the next sentence reads, “When [the officer] entered the house, Lopez rose from the sofa and lunged toward him, attempting to separate the officer from his stun weapon.” As one of Lopez’s arguments on appeal is that he most assuredly did not attempt to “separate the officer from his stun weapon” (at least with the requisite intent), this statement seems rather conclusory. As it turns out, that is likely because the only evidence that would support a finding that Lopez did not “separate the officer from his stun weapon” was the defendant’s own self-serving testimony that was, to be charitable, somewhat at odds with the physical evidence, the officer’s testimony, and the body cam footage.
At any rate, the struggle continued with the officer using pepper spray on Lopez to no effect and then drawing his baton and attempting to use it to subdue Lopez. “Lopez blocked the baton strike and violently lunged toward [the officer] while shoving him toward the stairs, causing the officer to fall and drop his baton.” Lopez picked up the baton and resumed his assault but was eventually subdued with the help of the other officer.
Lopez ended up with a whole slew of charges that resulted in convictions which led to this appeal. Let’s cut to the chase and discuss the legal issues that the Court of Appeals addresses:
1. One of the charges, escape, required proof that Lopez was “charged with a criminal offense.” He maintains at trial and on appeal that being subject to arrest on a capias for failure to appear does not meet the definition of being “charged with a criminal offense.” The Court ruled that FTA is a criminal contempt and the officer had placed Lopez under arrest for that offense (though he quickly broke free from that arrest) so Lopez had escaped from custody while charged with a criminal offense.
2. Lopez next argued that the evidence did not show that he had the requisite intent to disarm the officer in order to impede the officer in his duties. Lopez contended that he was “merely trying to retreat and avoid being hurt by the officers.” The Court ruled that determining intent was an issue of credibility and that the evidence as a whole showed that Lopez’s actions well exceeded mere retreat and defense.
3. Likewise, Lopez’s claim that he did commit battery of the officer was a credibility issue. There was body cam footage but given the wild maneuvering of Lopez and the officer it was hardly conclusive as to who was the aggressor at any point (well, not if there were the only evidence). The evidence as a whole, however, showed that Lopez was giving as good as he was getting (probably more giving than getting as the officers both showed considerable restraint in what could have been a more serious situation).