The maxim, Si Tacuisses, Philosophus Mansisses is often attributed to the Latin philosopher Boethius. An exact translation is “If you had been silent, you would have remained a philosopher,” but more colloquially it has been rendered “If you’d kept your mouth shut, we might have thought you were clever.” The case of Troy McGowan v. Commonwealth of Virginia (11/24/2020), provides an example in how a judge can be completely wrong (or at least highly confuzzled) in stating the law in his summation, yet that is still not enough to overturn a conviction if the evidence is there to support it.
McGowan had a no contact protective order entered against him by L.M., a “family member.” Nonetheless, he went to L.M.’s house one morning and when she denied him entry, he decided to enter anyway. Clearly, McGowan was in violation of the protective order – indeed, had he chosen to walk away, he still would have been in violation merely by going to the house and seeking entry.
When McGowan entered the home, L.M. retreated to her bedroom with her child, lay on the floor, and wrapped her body around the child, apparently fearing that McGowan would harm the boy. McGowan bit L.M. on the leg near her knee, then left when L.M. cried out in pain. When police subsequently arrived, McGowan allowed them to photograph some discoloration on her leg, but she later told them this was cause by a skin condition.
McGowan was charged with violating a protective order by committing an assault and battery that resulted in bodily injury Code § 16.1-253.2(C), a felony, and assault and battery of a family member, Code § 18.2-57.2. At trial, McGowan argued that while the evidence was sufficient to prove he assaulted L.M., the evidence did not show that the assault had resulted in bodily injury, thus he was at most guilty of a misdemeanor violation of the protective order.
In finding McGowan guilty under Code § 16.1-253.2(C), the trial judge did something that trial judges are wont to do, but probably shouldn’t – he tried to explain his decision from the bench. The law does not require a trial judge to explain why s/he is ruling a particular way on a motion or a verdict except in the rare instance where a statute directs that this be done. Often judges will issue trial memoranda or opinion letters after the fact, and these are generally well thought out and supported by citation to authority. But when a judge rules from the bench, it will often result in an off-the cuff statement on the law that is not well considered.
Here is the full text of the judge’s summation as quoted by the Court of Appeals, with some emphasis added:
[t]he key issue here is whether or not there was an assault and battery on [L.M.], the witness, and whether or not he came in contact with her in violation of the protective order. . . . Not some scars on the knee or anything. The felony charge is grounded on did he violate the protective order by not having contact, one, and by not committing any injury to her.
. . . [T]he order provides that [appellant] shall not commit acts of family abuse or criminal offense that result[] in injury to person or property. And it goes on, that [appellant] shall have no contact of any kind with [L.M.].
So it doesn’t have to be injury to her at all. He wasn’t supposed to have any contact with her. . . . He comes into the house unauthorized, uninvited. He contacts her. . . . [H]e bites her—I believe that happened—and the rest speaks for itself.
The emphasized language in the first paragraph may simply be the result of the judge losing track of whether he was speaking in the affirmative or the negative, as clearly the charge is not founded on McGowan not having contact with L.M., but whether he violated the order by having contact with her.
In the second paragraph the judge indicates that the protective order provides that McGowan “shall not commit acts of family abuse or criminal offense that result[] in injury to person or property.” While this may seem unusual language to include in an order, courts often will quote the statutory language to establish that the respondent understands (or at least has the opportunity to understand) the restrictions placed on him. This is a correct statement of the law.
Where the summation goes off the rails is in paragraph three. After just having stated that the order (and the statute) required there to be an “injury to [a] person,” the judge appears to say the opposite, “it doesn’t have to be [an] injury to her at all.”
It further appears that the judge equates the “no contact” provision of the protective order as being the equivalent of “no touching.” This is, of course, not a proper interpretation of “no contact” in this context, yet it appears that the judge has based McGowan’s guilt on his having “contact” with L.M. by biting her, whether it caused injury or not.
Perhaps that is a somewhat strained reading of the last sentence, but even so we are left with the judge’s statement that there “doesn’t have to be [an] injury to her at all,” which simply is not what the statute says. The enhancement of Code § 16.1-253.2(C) which raises the violation of the protective order from a misdemeanor to a felony is the occurrence of a bodily injury in the course of violating the protective order. [Editor’s note: An interesting hypothetical is whether the respondent to the protective order must inflict the injury or merely be the external cause of the protectee being injured; suppose, for example, L.M. had run to get away from McGowan and tripped, striking her knee on the floor; what if the injury occurs not to the protectee but to someone attempting to intervene or who is merely a bystander?]
The Court of Appeals first notes that, prior to 2016, the enhancement required a “serious bodily injury,” but following an amendment, now requires only bodily injury. The Court does a fine job of explaining the difference between a bodily injury and a serious bodily injury, but suffice to say that the main difference is that without the “serious” requirement, just about any level of battery that causes even momentary physical discomfort will be sufficient to constitute an injury. It is the difference between an unwanted tap on the shoulder (a battery), a painful poke on the shoulder that you rub away (an injury), and a wrenching of the shoulder that leaves bruises or worse (a serious injury). [Editor’s note: there are several additional levels of “injury” which constitute “woundings” of various degrees, but that is a discussion for another day.]
The Court of Appeals determined that because L.M. did not cry out until McGowan bit her, the scream was evidence that the bite caused pain, thus it was not merely a battery, but an injury. As the trial court had found that McGowan bit L.M., whether the summation correctly stated the law or not was irrelevant, because the evidence was sufficient to sustain the finding of guilt.
Continuing my review of cases handed down before this blog launched, I came across Fletcher v. Commonwealth, a published decision from November of last year, which is worthy of note because it contains that rarest of animals in appellate jurisprudence – an unpreserved error that nonetheless is subject to review on appeal to protect the integrity of the courts and to enable the appellate court to attain the ends of justice. When the appellate courts decline to review an unpreserved issue under the ends of justice exception, the most cited example of when this unicorn will appear is where the trial court has entered an unlawful sentence, and that is precisely what happened in Fletcher.
The facts of the case read like the nightmare scenario of any person driving in a rural area late at night, particularly a young woman on her own. The victim stopped at a gas station to put air in her tires. Fletcher pulled into the station and offered to assist her. When she declined, Fletcher asked if she wanted to “hang out” and “smoke some weed,” but she again declined. Fletcher persisted in his attempts to engage the victim in conversation and when she left the gas station he followed directly behind in his vehicle.
The victim grew concerned and texted a friend and then called 911. The 911 dispatcher remained on the line, and the subsequent encounter between the victim and Fletcher was recorded. Fletcher sped around the victim’s car and forced her to stop. When she attempted to back away, her car ran off the road, and Fletcher then backed his car in front of hers, blocking her escape.
Fletcher was wearing gloves and carrying a tire iron when he exited his car. He demanded that the victim exit her vehicle and follow him. When she refused, he struck the window several times with the tire iron while yelling threats and obscenities. Another vehicle approached the scene, and the victim was able to signal that she needed aid. Fletcher drove away, returning a short while later, but left again when he saw the victim was with the driver and passenger of the other vehicle. Sheriff’s deputies arrived on the scene a short while later.
Either the victim or one of her rescuers had the presence of mind to take down Fletcher’s license tag number, allowing authorities to identify Fletcher as the owner. Fletcher’s vehicle was seen by another deputy driving at high speed away from the area where the victim had been run off the road. Fletcher was apprehended sometime later.
Fletcher was convicted of carjacking, in violation of Code § 18.2-58.1; attempted malicious wounding, in violation of Code §§ 18.2-26 and 18.2-51; abduction, in violation of Code § 18.2-47; felony destruction of property, in violation of Code § 18.2-137; and assault, in violation of Code § 18.2-57. On appeal he contended that the evidence failed to show that he seized or seized control of the victim’s car, an element of carjacking, and further that the Commonwealth failed to prove that he had the requisite intent to maliciously wound the victim.
On the first issue, the Court of Appeals held that seizure of control of a vehicle requires only that the defendant must restrain the driver from moving the vehicle. By blocking the victim’s vehicle from returning to the roadway, the Court held that the circuit court could have found that Fletcher had “seized control” of the victim’s vehicle, thus the verdict on this issue was not plainly wrong or without support in the evidence.
With respect to attempted malicious wounding, the Court of Appeals acknowledge that there was conflicting testimony as to the force Fletcher used when striking the window with the tire iron. Fletcher maintained that as the window did not shatter, there was no evidence that he struck it with sufficient force for the trial court to infer that he intended it to shatter and to cause harm to the victim. The Court, however, noted that there was considerable other evidence to suggest that Fletcher intended to harm the victim, including his violent effort to force her to stop her vehicle, his threatening the victim in a voice so loud that it was clearly audible on the 911 recording through the close door of the car, and the victim’s testimony that she believed the window would break. Considering this evidence, the Court held that the trial court was within its province as trier of fact to reject Fletcher’s self-serving testimony.
So now we reach the unicorn. Fletcher was initially charged with abduction with intent to defile, a class 2 felony. The trial court convicted him of the lesser included offense of simple abduction, a class 5 felony. The Court of Appeals does not explain how it happened, but at sentencing, the trial court imposed sentence based on the original charge, not the lesser included offense. As the issue reached the appellate court, it is clear that no one – the judge, the probation officer who prepared the pre-sentence report, the Commonwealth’s Attorney, or Fletcher’s trial counsel – noticed the error. When the error was noted sometime afterwards, however, it was so obvious that the Commonwealth did not bother to contest the issue. The Court reversed the sentenced for abduction and remanded for a new sentencing proceeding.
Ok The main part of this blog is devoted to decisions of the Court of Appeals of Virginia. Occasionally, however, I will stray in other issues and that is what the Soapbox is for. Today, I climb up on that precarious perch to address an issue in an unpublished order of the Supreme Court of Virginia in the habeas corpus appeal Robert John Dodd v. Harold Clarke, Director, Virginia Department of Corrections 2/4/2021 (unpublished order). Dodd is worthy of a mention even though it is an unpublished order because it raises an interesting issue that, IMHO, deserves greater attention – can a defendant be convicted of multiple felonies where the indictments are identical in every respect? This is a fairly common practice in a rather unpleasant area of the law, that involving the abuse of children through sexual assault, taking of indecent liberties and the creation of pornographic images. Because these events often take place over extended periods of time, the indictments tend to give a range of dates within which the alleged offenses occurred, rather than specific dates. Often, the victim is not able to be more specific than by reference to events (“after I started school,” “before we went to see grandma,” etc.). Without specificity of dates, defendants contend that they are unable to form a complete defense by, for example, establishing an alibi showing that on a specific date they had no contact with the victim.
Generally, courts have held that even extremely broad time periods do not per se violate the constitutional requirement that the defendant be given notice with specificity of the alleged crimes. However, in 2005, a divided panel of the Sixth Circuit Court of Appeals determined that “carbon copy” indictments insufficiently apprise a defendant of the charges against him, thus putting him at risk of multiple convictions for the same offense. Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005). Valentine has been cited in over 200 cases since its release, but it has not found favor with any other circuits or state courts of appeal. Dodd is one such case.
Dodd was convicted of three counts of forcible sodomy of a child under the age of thirteen, three counts of taking indecent liberties with a minor while in a custodial relationship, and three counts of aggravated sexual battery of a child under the age of thirteen. The indictments were facially identical for each count of the specific offenses. The jury instructions, like the indictments, failed to differentiate between Dodd’s three charges for each offense by date or underlying conduct.
The unpublished order does not provide details as to the length of time specified in the indictments or what the trial evidence was that proved there were multiple offenses. The omission of these facts is understandable, as this is not a direct appeal of the convictions and 99-year sentence imposed. In habeas proceedings, the reviewing court is not actually interested in the evidence, but only whether the defendant’s constitutional or statutory rights were violated because of some aspect of his trial, usually the failure of his counsel to provide an effective (or more accurately, a minimally effective) defense. Here, the issue was whether Dodd’s counsel was ineffective for not challenging the “carbon copy” indictments. Because “no controlling caselaw exist[s] holding that multiple identical indictments violate a defendant’s constitutional rights,” the Court concludes that Dodd’s counsel was not ineffective for failing to raise the issue.
This does seem to be a “Catch-22” – until there is controlling caselaw on an issue, a counsel cannot be held to be ineffective for not raising the issue, but if counsel does not raise the issue, how will controlling case law be developed? In reality, it often takes years for “controlling caselaw” to develop. Issues that we think of today as written in stone – Miranda warnings, the impropriety of racially-motivated striking of blacks from jury pools – had to be raised repeatedly until a crack in the dam of judicial intransigence appeared (which is usually followed by dam-bursting a flood). If the use of “carbon copy” indictments is ultimately found to be unconstitutional, it will not be because a habeas review finds it to be so. It will be because the issue is raised often enough at trial and on appeal that there is more precedent than just Valentine.