The Supreme Court has been busy! There’s too much to say and too little time, so today I am breaking with tradition and posting helpful takeaways first with more details to follow.

Takeaways:

For all of us:

• If an argument wasn’t previously made, an appellate court can’t use that new argument to reverse a trial court. Note: this is different than the “right result for a different reason doctrine,” which allows different reasons to be used to affirm a lower court’s judgment.

PI Lawyers:

• The SCV took away a big “win” for the plaintiffs’ bar in Harris v. Howard but the SCV punted the main issue. It’s only a matter of time before a summary judgment decision on gross negligence makes its way back to an appellate court near you! Otherwise, If there is an illegality defense in one of your cases anytime soon, be sure to read Harris v. Howard.
• Eye Consultants of Northern Va. v. Shaw-McDonald should be considered required reading for next time you have a plaintiff dealing with a Chapter 7 bankruptcy.

Criminal practitioners:

• If law enforcement is lawfully in the curtilage of a suspect’s home, they do not necessarily need a warrant to make an otherwise lawful arrest. We know that the home is sacrosanct in 4^th Amendment jurisprudence, so Poulson v. Commonwealth is a worthwhile opinion to read.
• Other takeaways? The Virginia Association of Criminal Defense Lawyers sells t-shirts that say, “Nobody talks, everybody walks.” Poulson might reconsider his “consensual” chatting with police next time!
• No one loves Wayne LaFave more than Virginia’s appellate courts. Dust off his search and seizure treatise for your next complicated 4th amendment case.
• Crafty prosecutors and strict trial court judges may want to take a look at the Casillo Canales decision. Defense attorneys, don’t lose heart by this case! The decision about whether something is factually a “single course of conduct” or not for technical probation violation analysis first lies with the trial court. Other Circuit Court judges might have decided differently. Just be aware of the decision for next time.
• The next harmless error analysis you have, pay attention to both Shaw v. Commonwealth and Welsh decision from last month.

Are you a glutton for punishment (i.e. an appellate nerd) and want to keep reading? 

Details

In Shaw v. Commonwealth, the Supreme Court of Virginia analyzed whether a trial court erred in excluding expert witness testimony. Remember the Welsh decision from last month? The Court explained how this analysis was different.

Shaw’s conviction was for concealing a dead body and the sole question was whether he had the necessary intent. The SCV first emphasized that even though Virginia Code Section 19.2-271.6 now allows certain evidence of a defendant’s mental state—the statute does not mean that all such evidence is automatically admissible. Mental state evidence, even if otherwise qualified, is still subject to Virginia’s general rules of evidence. The justices neatly sidestepped any difficult questions about the sufficiency of Shaw’s proffer, the CAV’s reasoning, and the merits of the issues by instead holding any error in excluding the defense’s expert testimony was harmless. The Commonwealth will be paying attention to this opinion next time they draft a harmless error analysis section of a brief—so should you.

Criminal practitioners: We have a new decision interpreting how probation violations may be conducted. Castillo Canales had a series of missteps on probation interrupted by periods of compliance. The Circuit Court decided to hold a series of hearings to address the violations instead of one single hearing. Castillo Canales argued that these violations were really simply a “single course of conduct,” not distinct events, and they should have been treated as one technical violation. The nuances are complicated and the prior CAV decision resulted in both the Commonwealth and Castillo Canales appealing.

What should you take away from this? A Circuit Court does not have to address all probation violations from a major violation report in the same hearing, but it could if it wants to. Ultimately, the SCV affirmed the Circuit Court’s view that under the particular facts of the case, the Circuit Court could properly find that the violations arose from “separate, calculated decisions” rather than one single course of conduct.

Since our last blog post, the Supreme Court had yet another criminal opinion in Poulson v. Commonwealth. Did the police need a warrant to arrest a suspected drunk driver in the curtilage of his home after he fled the scene of an accident? Nope, not if the officers were lawfully present. But what about earlier—was Poulson “seized” when they initially arrived and questioned him without giving Miranda warnings? Also nope. Despite the presence of four police cars and four officers and Poulson’s argument about the officer’s tone of voice, the SCV upheld the Circuit Court’s finding that the encounter was initially consensual: Poulson wasn’t handcuffed, he initiated the encounter when he chose to talk to police at his home, the police answered “yes” when Poulson asked to go inside and get dressed, and the questioning was cordial and lasted only four minutes.

Med mal and PI lawyers: This one’s for you. In Eye Consultants of Northern Va. v. Shaw-McDonald, a plaintiff in a pending med mal case filed for Chapter 7 bankruptcy prior to trial, without listing the med mal action in her bankruptcy petition or disclosing it. When the defense learned about it, they moved to dismiss the case for lack of standing (arguing that the Plaintiff’s interest in the med mal action was transferred to the bankruptcy trustee). The plaintiff then amended her bankruptcy filings to include the med mal case. The Supreme Court distinguished this decision from its precedent and determined that a plaintiff does not lose standing in a med mal action just by afterwards filing her bankruptcy petition. The bankruptcy filing “suspended, but did not terminate” the plaintiff’s standing. As a result, dismissing the plaintiff’s claim with prejudice was inappropriate.

Another big case for our PI colleagues: Harris v. Howard. The SCV addressed the defense of illegality in a case with tragic and bizarre facts: When a friend found a suicide note in Howard’s kitchen and noted a missing shotgun, police responded and looked for Howard. They eventually found him and put him in handcuffs (as a convicted felon, Howard was not permitted to have a shotgun). Deputies couldn’t find the shotgun, so they placed Howard in the police car and continued to search, eventually lowering the window. Deputies later saw that Howard had maneuvered his handcuffs from behind his back to under his knees. Howard complained about his breathing and denied that he would try and “hop his cuffs.” At some point, though, Howard was able to reach through the open window to the front and retrieve a handgun and loaded magazine left by the deputies. Howard sadly shot himself when the supervising deputy was outside and Howard survived with significant injuries.

Howard sued, alleging gross negligence, but the Circuit Court granted summary judgment in favor of the defendants, reasoning that the deputy didn’t show an indifference to Howard’s life amounting to gross negligence. Moreover, the defense asserted the illegality defense, which prohibits plaintiffs from recovering for the consequences of their illegal acts. The Court of Appeals initially reversed, concluding that there was a genuine dispute of fact regarding whether Howard had an “unsound mind” that would prevent application of the illegality defense. It also found that a reasonable jury could find the deputy was grossly negligent so summary judgment was inappropriate. The Supreme Court disagreed, finding that the firearm felon statute is essentially a strict liability offense and does not have any mens rea requirement beyond knowing and intentional possession. Because Howard was aware that he had a firearm and intentionally possessed it, the illegality defense barred his claims.

What did the SCV not do? Decide what the lawyers really wanted them to decide—whether the plaintiff validly stated a sufficient claim for gross negligence. It also ignored the CW’s suggestion as an amicus that the SCV could consider applying the illegality bar even if a potential plaintiff lacked the requisite intent to be found guilty of the underlying offense. The best and narrowest grounds in this case was the illegality defense on its own, leaving the other questions for another day.

What else did the SCV do? Chastise the CAV for coming up with its own reason to reverse the Circuit Court that the parties never argued. The CAV opinion had cited Va. Code § 19.2-271.6(B) as justification for its decision. Justice Russell’s opinion expressed doubt about the CAV’s application of that code section (that’s putting it mildly) and then the SCV reiterated that an appellate court cannot reverse a circuit court for a reason that wasn’t raised below.  

Do you work for the SCC? Are you otherwise an attorney who regularly appears in that court? If not, I wouldn’t fault you for skipping the W.V. v. SCC opinion.

As always, I’m happy to chat about these decisions and what they mean for your case anytime!

Can’t get enough appellate blogging? Don’t skip on Matt Mcguire’s new blog. He’s a fellow appellate advocate and is using AI in a very creative, helpful way.