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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

March 12, 2024 saw four published opinions from the Court of Appeals, and as no published opinions where handed down this week, we have reached the Final Four opinions of Operation Get Caught Up.


Douglas Leon Miner v. Commonwealth of Virginia (March 12, 2024) involves a conviction for making a materially false statement on a criminal background check when making a firearms purchase. Miner entered into a deferred disposition plea on a charge of burglary. While the deferral was in place, Miner tried to purchase a rifle and in completing the background check responded "no" to the question “Are you under indictment or information in any court for a felony, or any other crime for which the judge could imprison you for more than one year?” When the background check revealed the indictment for burglary, police were notified and Miner found himself back in court.


Miner maintained that he thought the deferral of the felony charge meant that it had been reduced to a misdemeanor. The Commonwealth introduced the plea agreement, which showed that the charge would not be reduced until Miner had completed the terms of the deferral. A copy of the indictment was included with the plea agreement.


Miner moved to strike the evidence on the ground that the evidence failed to prove that he was under indictment because the copy attached to the plea agreement was not certified. The circuit court overruled the motion to strike and convicted Miner.


The Court of Appeals, Judge Fulton joined by Chief Judge Decker and Judge Ortiz, affirms the conviction. Miner reasserts the "not a certified copy" argument, but the Court finds that the copy was part of an exhibit admitted without objection. In any case, I am not sure that proof that Miner was under indictment required the admission of a copy of the indictment, certified or not. People don't usually enter into plea agreements for felonies for which they have not been indicted, and Miner didn't contest the fact of his plea, only his understanding of what it meant in terms of his status.


Miner had two other arguments, both based on faulty premises. The first argued that making a false statement on a background check form with respect to being charged with a felony was not intended to be criminalized. Unfortunately, he relied on case law that distinguished between being "charged" for a felony and being "indicted." The form says indicted, so if the grand jury has not yet returned a true bill, an applicant can truthfully answer "no," but Miner had been indicted.


Miner next argued that he had obtained advice from a "government official" that he was in fact able to legally purchase a firearm. Unfortunately, that official was his lawyer, who did not work for the government. While we attorneys are often called "officers of the court," we are not government officials "charged by law with responsibility for defining the permissible conduct with respect to the offense at issue."


Christopher O. Parrish v. Mikeya Vance (March 12, 2024) is an appeal from a little known area of Landlord/Tenant Law -- a "Tenant's Assertion and Complaint." A tenant's assertion is a pleading filed in General District Court asserting that a landlord has failed in the duty of providing a habitable living space. The tenant has to give the landlord notice of the problem and 30 days to repair (which seems awfully long given that the defect must "constitute a fire hazard or serious threat to the life, health or safety of occupants"). If the landlord does not remedy the situation, the tenant's assertion is filed with the court and all rent payments normally due to the landlord are paid to the clerk of the court had held in escrow pending resolution of the suit.


The defect in this case was an infestation of fleas. If you think that this is a minor inconvenience, I suggest you study up on the Black Death. Parrish, the landlord, defended the suit on the ground that the lease made flea eradication the duty of the tenant. At the beginning of the lease, Parrish told Vance that he would pay for the initial treatment, which he apparently did, but the exterminator advised Vance that it would take several treatments to assure that the fleas would not repopulate.


Fast forward several months and the fleas are still in the house. Vance filed her tenant's assertion seeking to terminate the lease and recoup all rents paid. Parrish argued that the fleas were actually brought to the home by Vance and she was thus responsible for theior abatement. Neither the General District Court or the Circuit Court were amenable to this argument, finding that the Virginia Residential Landlord/Tenant Act makes the provision of a habitable living space a non-delegable duty.


The Court of Appeals, Judge Causey joined by Judges Raphael and Senior Judge Clements, affirm this judgment. Parrish also raised an objection to the admission of expert testimony, but this issue falls under an "opening the door" theory because Parrish introduced substantially the same evidence.


Parrish's final argument (apart for sufficiency of the evidence, which falls to the standard of review favoring Vance), was that the circuit court violated due process by not allowing him to "present his whole case." However, when he rested his case he advised the judge "That's all." He only contended that he had not been allowed to fully develop his case in a post-judgment motion for reconsideration, and the Court rules that was not timely.


Jamar Paxton v. Commonwealth of Virginia (March 12, 2024) is a 2-1-0 decision reversing a conviction for second degree murder. The Commonwealth has not yet sought a rehearing or noted an appeal to the Supreme Court, but I suspect some action will be taken before the 14 or 30 days deadlines.


The sole issue was whether the circuit court erred in not suppressing incriminating statements made by Paxton, and whether that error was rendered harmless wen Paxton chose to testify about the confession in order to rebut its implication. It is not disputed that Paxton was advised of his Miranda rights and after police accused him of the murder of his girlfriend he said, "I don't wanna talk no more." The officer then said Paxton would be charged and the following exchange took place:


Paxton: Sir.

Officer: Yes.

Paxton: What?

Officer: Mmm-hmm, unless you can come up with a reasonable explanation, . . .

Paxton: Sir, what else do you wanna know? I’m tellin[g] you everything.

Officer: I wanna hear the truth.


The interrogation resumed and Paxton eventually admitted shooting the victim, claiming self-defense. The issue is whether Paxton or the police "re-initiated" the interrogation.


Paxton's motion to suppress his statement was denied, and he hen testified at trial about the substance of that statement, setting up this appeal and the decision reversing and remanding by Senior Judge Petty, who is joined by Judge Malveaux, and Judge Raphael who concurs in the judgment, but writes separately. The issue that the panel has a slight disagreement on is why Paxton's testimony does not constitute a waiver of his Miranda claim. The difficulty stems from case law from the Court of Appeals that appears to conflict with precedent from the US and Virginia Supreme Courts. The debate between the majority and concurrence will be of interest to 5th Amendment scholars, but the result is the same -- if a defendant's Miranda rights are violated, the Commonwealth cannot rely on the illegally obtained evidence to argue that the defendant's testimony seeking to rebut that evidence was "voluntary" and thus waive the objection.


Shanta Orlando Hubbard, a/k/a Shawn Hubbard v. Commonwealth of Virginia (March 12, 2024) results in a reversal upon a finding that a search incident to a traffic stop. Judge Lorish, joined by Judge Ortiz and Sr. Judge Petty, finds that the Commonwealth failed to prove that exigent circumstances warranted an invasive search rather than holding the suspect and obtaining a warrant.


The facts would be comical if not for the constitutional issue of a warrantless search. Hubbard was stopped for an unspecified traffic infraction and was subjected to a patdown search after officers learned that Hubbard had agreed to be subject to random searches under a prior plea agreement. During this patdown, an officer felt a "hard object" in Hubbard's buttocks. When he reached int Hubbard shorts, they fell to the ground, leaving Hubbard standing in his underwear. The officer then attempted to remove the object, but Hubbard clenched his buttocks together and the officer could not remove the object. The officer told Hubbard he would be taken before a magistrate and searched there.


When Hubbard attempted to then release the object, the officer stated that he feared Hubbard would stomp the object in an effort to destroy it and, if the object contained fentanyl, it might become aerosolized and present a danger. The officers then resumed their efforts to remove the object, which turned out to be a plastic bag with 87 smaller bags of crack and power cocaine.


The circuit court denied Hubbard's motion to suppress, finding that the prior agreement waived Hubbard's right to object to the search, even an invasive body cavity search. The court further found that even if the waiver was not considered, exigent circumstances permitted the warrantless search.


The Court of Appeals first finds that plea agreement waivers do not extend to body cavity searches -- this is already established in prior precedent which the circuit court plainly should have known. This means that the burden was on the Commonwealth to show that exigent circumstances existed to warrant the invasive search.


The Court finds that the "theoretical possibility" that object might have been fentanyl and might have become aerosolized was not sufficient to warrant resuming the invaisive body cavity search. The Court also finds that the "buffet of hypothetical exigencies" offered by the Commonwealth did not rise to the level for warranting the search.





There was only one published decision from the Court of Appeals on March 5, 2024, but Dennis Christopher Howard v. Sheriff Roger L. Harris, et al. (March 5, 2024) had some high powered appellate advocates on brief including amici filed by the Virginia Trial Lawyers Associations, the Commonwealth and the Local Government Attorneys of Virginia. Why all the heavy artillery? Because this case involves the potential liability of the government for not adequately protecting a detained person who attempted suicide when he was able to get access to a gun while in custody; the gun was in the law enforcement vehicle within easy access by Howard, who was suicidal. The circuit court sustained the government's motion for summary judgment and the Court of Appeals, Judge Callins joined by Judges O'Brien and Fulton, reverse and remand for further proceedings. A petition for rehearing en banc has been filed and whether it is granted or not, this case is definitely destined for a petition for review by the Supreme Court (and an almost certain grant and full review).


The circuit court granted summary judgment based on two theories. First, because Howard's attempted suicide by seizing the weapon was a criminal act (he was a felon and barred from possessing a firearm), he could not recover from "other participants" in that act under the illegality defense. The Court of Appeals finds that Howard raised a legitimate issue of whether he was of sound mind when he seized the weapon, negating his criminal intent. I would have personally gone a different route and found that the deputy who was charged with securing Howard's safety was not a "participant" in Howard's seizing of the gun and attempted suicide.


The second theory was that because the deputy had made some effort to secure Howard's safety, he could not be grossly negligent and, thus, has protected by sovereign immunity. So was this effort? The deputy noticed that Howard was attempting to "jump" his handcuffs -- that is, he was trying to get his hands from band his back to the front by pulling them under this legs. The deputy told Howard not to attempt it or he would use pepper spray on him.


So, just to recap, a suicidal man is placed in handcuffs and left in a vehicle where a handgun is within easy reach if he were to move his handcuffed hands from behind his back, and the reasonable effort to secure his safety by the deputy was to say "don't do that or I will pepper spray you." I think I can go along with the Court of Appeals that threatening to pepper spray a suicidal person is not going to be much a deterrent.

Before getting to the opinions released on February 27, 2024, a brief note about Terence Jerome Richardson, s/k/a Terrence Jerome Richardson v. Commonwealth of Virginia, which is an order directing that an evidentiary hearing be conducted in the case. The order is pursuant to a decision of the Supreme Court reversing a decision of the Court of Appeals that Richardson was ineligible for a writ of actual innocence.


Samantha Maxine Stilwell v. Commonwealth of Virginia, (February 27, 2024) involves the racial-motivation enhancement for an assault and battery charge. The incident took place at a Walmart in Lynchburg were Stilwell was a customer. In the self-checkout area were two black, female employees who were monitoring the customers. Stilwell was arguing with a man who was accompanying her--the opinion does not identify him, but says Stilwell was shopping with family. Suddenly, and without provocation, Stilwell began cursing, using racial slurs and alleging that the two employees were "laughing at her." Stilwell then threw a price scanner at the employees, striking one of them. She then hurriedly left the store.


Stilwell was subsequently arrested and charged with assault and battery with a racial-motivation enhancement. She admitted throwing the price scanner at the employees and referring to them as "black B****es," but denied using a specific racial epithet. The circuit court convicted Stilwell of assault and battery with the racial-motivation enhancement.


Stilwell appealed this judgment contending that there was a reasonable hypothesis that she motivated by her perception that the employees were laughing at her because of the argument she was having. Thus, she concluded that the evidence was not sufficient to prove the racial-motivation element.


The Court of Appeals, Judge Cuasey joined by Judges Lorish and White, affirm. The circuit court expressly stated that Stilwell's claim that the women were laughing at her was a "red herring" indicating that it rejected her testimony as not worthy of belief. In any case, the Court observes that "[l]aughter is not justification for a battery. Stilwell’s subjective perception of the situation does not excuse her unprovoked derogatory remarks or aggressive behavior."


Leroy Vanmeter, Jr. v. Commonwealth of Virginia (February 27, 2024) is an appeal from a pro se suit filed by a prisoner, but it is not an appeal of the conviction. Rather, Vanmeter sought a ruling that his work as a janitor within the facility he was being held while in the custody of the Department of Corrections should be credited as "community service work" to reduce the court cost he owes from his conviction. The Court of Appeals, Judge Raphael joined by Judges Beales and O'Brien, finds that it has jurisdiction to consider the circuit court's denial of the request, but agrees with the circuit court that the express language of the relevant statute "does not permit an inmate’s work for the Virginia Department of Corrections to count as community-service work that offsets the inmate’s fine or costs."


Melissa Nanette Diaz v. Commonwealth of Virginia (February 24, 2024) is a 2-1 decision affirming Diaz's convictions for second degree-murder and concealing and defiling a dead body. The victim, Steven Wynn, was Diaz's boyfriend, and the two checking into a motel together paying in advance for a week. Over the course of the week, Diaz interacted with housecleaning staff, but would not allow them into the room and made requests for extra sheets, cleaning supplies and bleach. She also told a motel employee that she had purchased a grandfather clock that would be delivered to the hotel.


While moving the "grandfather clock" which was wrapped in a sheet from the room to Diaz's car, the "clock" bent double and emitted a foul order. The "clock," of course, was Wynn's dead body. Diaz subsequently admitted that Wynn had physically abused her and that she had killed him because "she couldn't take the beatings anymore."


Diaz did not contest the basic facts of what happened when she was tired for murder and defiling of Wynn's body. Rather, she maintained that the evidence failed to prove that she acted with the requisite malice for murder and was best guilty of manslaughter. She also maintained that there was insufficient evidence of defilement. She also objected to two evidentiary rulings of the circuit court.


The first evidentiary ruling was to allow the Commonwealth to redact comments made by Diaz during her police interview that identified Wynn as a probationer. The Court of Appeals, Judge Fulton joined by Chief Judge Decker, hold that even if the redactions was error, it was harmless error because Wynn's status as a probationer had no special relevance in as much as extensive evidence of Wynn's criminal activities was presented to the jury. The other evidentiary issue, whether the court erred in admitting phtogrpahs from social media, was affirmed based on the abuse of discretion standard and the Court's finding that the photos were "duplicate originals" for purposes of the best evidence rule.


On the sufficiency issues, the Court holds that the evidence was sufficient for a factfinder to infer Diaz's malice from the manner of the killing (Wynn was shot in the head) and her subsequent effort to conceal the crime. It is only on the sufficiency of the evidence of defilement that the third panel member, Judge Ortiz, disagrees with the majority. Unlike the majority, he would require the Commonwealth to show more than that Diaz attempted to conceal her crime by hiding the body. While the body was badly decomposed, Judge Ortiz would conclude that there was no evidence that Diaz physically abused or disfigured the corpse.


The only civil case from the February 27, 2024 published opinions is The Board of Supervisors for the County of Louisa, Virginia v. Vallerie Holdings of Virginia, LLC (February 27, 2024) and it involves the unusual circumstance of a circuit court overturning a decision of the decision of a Board of Zoning Appeals confirmed by the local government. Perhaps even more unusual is that the Court of Appeals, Judge Ortiz joined by Judge Lorish and Senior Judge Petty, affirm that decision. The locality was supported by an amicus brief on behalf of VEPCO.


The property at the heart of the case is a building on Lake Anna which serves as a venue space and marina operations building. An upper story was designed to be a residence. The building had fallen into disrepair when the prior owner ran short of funds and the current owner, Vallerie Holdings, have been restoring the property. The prior owner had removed the exterior staircase to the residence and the new owners wanted to install one in a different location and did so without a building permit, in the process encroaching on a five-foot setback. Realizing that a permit and variance were needed, the owner filed the necessary paperwork. All this happened in 2016, and over the next five years Vallerie Holdings tried repeatedly to get the variance approved.


In 2021, the BZA rejected the variance, finding that Vallerie Holdings created its own hardship by not obtaining proper advice prior to undertaking the renovations. The Board of Supervisors approved the denial of the variance.


Vallerie Holdings appealed this decision to the circuit court which "found that the BZA had not articulated the reasons for its denial of the variance. In contrast, it found VHOV’s evidence “credible and compelling.” The court concluded “by a preponderance of the evidence” that the application of the setback requirement unreasonably restricted the property because the building was set so close to the property line without access to the second story—a challenge predating VHOV’s purchase of the property. The court found that other options “were not reasonable in the terms of cost, complexity, and feasibility." The Board of Supervisors appealed to the Court of Appeals.


The Court determined that it was required to "harmonize the different presumptions of correctness afforded to a variance decision by a BZA and the factual findings of a circuit court." Usually, BZA decisions are afforded a presumption of correctness as legislative decisions, but reviews of BZA decisions involve fact-finding by the court which is likewise owed deference. The Court concludes that, contrary to the Board of Supervisor's contention the the deference owed to the BZA includes its finding of facts, only the decision of the BAZ is given deference and the circuit court can discard that decision if it finds that BZA's factual findings are at odds with the court's view. Because the court found that the facts did not support the BZA's denial of the variance, the circuit court's judgment is affirmed.


The Board of Supervisor's has applied for a rehearing and rehearing en banc. I would suspect that this case is ultimately destined for review by the Supreme Court.






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