24 December 2003


The Yin Blog and The Curmudgeonly Clerk both have had recent posts on procedural "technicalities."

Generally, I agree with everything they have stated. However, they have inspired me to go off on my own tangent.

I must point out that - at least from my Virginian Defense attorney perspective - that "technicalities" almost always favor the prosecution and no one is upset when that occurs. If you don't believe it go and read any local legal publication which summarizes the decisions of your court of appeals. Invariably there are cases decided in the prosecution's favor because of procedural issues. Most often it seems the procedural error relied upon by the appellate court is that the error was not properly preserved - put another way, the argument in the court of appeals does not mirror the argument made in the trial court.

Example 1: Virginia Code secs. 19.2-11.01 and 19.2-265.01 purport to give a victim the "right" to stay in the courtroom even if witnesses are excluded "unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial." 19.2-265.01. Now, as I read that it means if a victim is not to be called as a witness he can stay in the courtroom; it could also possibly mean that if the victim is going to testify as to what happened on Monday and all the other witnesses are going to testify to entirely unrelated matters which occurred on Thursday then the victim can remain. However, some trial courts have read these statutes to mean that short of an affirmative showing of impairment by the Defense (an impossible standard to show pretrial) the victim stays in the courtroom. Anyone with a drop of sense can see how that interpretation is dead in the water as soon as it runs up against that pesky old federal constitution. The statute is darn near undefendable under the 14th Amendment due process right and the 6th Amendment right to a confrontation which is untainted.

And you know what? Our Court of Appeals has more than a drop of sense. This statute has been challenged twice. Both times, rather than address the unconstitutional application of the statute the court found a way to deny the appeal based upon procedural technicality. The first time the challenge was turned away because
At trial, appellant argued that until the evidence established that a person was a victim, the alleged victim stood in the same position as any other witness in the case and should be excluded from the courtroom. Appellant never argued that his due process right was violated. The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.
[U] Hague v. Commonwealth, (No. 1274-99-2, 23 May 2000)(citations omitted).
The second time the challenge was turned away because
On appeal, the defendant contends the trial court erred in failing to exclude Chesnut from the courtroom pursuant to Code § 19.2-265.1. He argues the statute requires the exclusion of all witnesses, including victim witnesses, and that the victims' rights statute, Code § 19.2-265.01, is inapplicable. This argument is different from, and actually conflicts with, the argument he raised at trial: that Chesnut should be excluded under Code § 19.2-265.01, the victims' rights statute, because his presence would impair the trial. Nothing in the defendant's argument at trial indicated that he thought the general statute, Code § 19.2-265.1, controlled rather than the specific statute, Code § 19.2-265.01, dealing with victims.

Though taking the same general position as in the trial court, an appellant may not rely on reasons which could have been but were not raised for the benefit of the lower court. We will not consider an argument on appeal which was not presented to the trial court.
[U] Woodell v. Commonwealth, (No. 2241-00-3, 05 Mar 2002)(citations omitted).
Example 2:

First: NCIC records are spit out by machines in the prosecutors' office (and I assume the police station). They are not kept in the clerk's office and can in no way be certified by the clerk as "judicial records" under the hearsay exception provided by Va Code sec. 8.01-389.

: NCIC records are hearsay and notoriously subject to inaccuracies. I have sat in a prosecutor's office reading a record which says my client - arrested two weeks before the meeting - had been found guilty of murder and locked away for life ten years prior. I've had police go to the wrong part of the Commonwealth to arrest someone who shared the same name as my client because they thought that person was the one the NCIC applied to. I've had a client accused of being a felon in possession of a firearm because NCIC showed him as having committed a felony when the Navy had him deployed overseas. And any number of times I've had the NCIC show a disposition for a case which, when we got ahold of the actual court records, had been dismissed or reduced to a lesser offense.

Third: There is no statute allowing NCIC reports to prove a Defendant's record - at least none I know of.

Fourth: To prove a felony petit larceny in Virginia the prosecution must prove that two prior larceny (or similar) convictions have been entered against the Defendant.

During a trial for felony petit larceny the prosecution attempts to enter the NCIC report into evidence to prove the prior convictions:
At trial, Investigator Kristie Siron of the Staunton Police Department testified that the felony theft charges were based on Argenbright's record of prior convictions for similar offenses. When shown a copy of a computer printout of Argenbright's NCIC record by the Commonwealth, Investigator Siron identified the printout as appellant's criminal record. The Commonwealth then offered the printout into evidence. Argenbright objected and the following exchange took place:
MR. BOBBITT [Defense Attorney]: Your Honor, I'm going to object to the--this printout, I mean I would think that there ought to be copies of the--of the-- certified copies of the conviction if they are going to establish that he was convicted.
MR. ROBERTSON [Commonwealth's Attorney]: Judge, there is a statute that allows the record to come in.
JUDGE: Isn't that true Mr. Bobbitt?
MR. BOBBITT: I think he's probably right, but I'm not sure about that so I'm--I'm going to object to it.
JUDGE: I'm going to admit it, it's Commonwealth's One.

The trial court relied on the information contained in the NCIC record to prove the prior convictions required under Code § 18.2-104 to convict Argenbright on thirteen out of eighteen felony charges of obtaining money by false pretenses under Code § 18.2-178. The court subsequently sentenced him to the penitentiary for ten years, with seven years suspended. Argenbright appeals the thirteen convictions elevated to felonies pursuant to Code § 18.2-104.


The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.

Both at trial and on appeal, Argenbright argued that only certified copies of court records of his previous convictions were admissible to prove the prior convictions necessary to convict him pursuant to Code § 18.2-104. While he objected when the Commonwealth sought to admit the printout of the NCIC report, his sole argument was that only certified copies of the convictions were admissible for that purpose.

Argenbright argues for the first time on appeal that the trial court erred by admitting the printout without proper certification pursuant to the Code § 8.01-389, the judicial records exception to the hearsay rule. We will not review on appeal a specific argument not raised before the trial court absent a showing of good cause or as necessary to attain the ends of justice.

. . .

When Argenbright objected to the offer of the printout of the NCIC report into evidence, the Commonwealth asserted that there was "a statute" that permits the NCIC report to be admitted into evidence. In response, the court stated that it also thought a statute permitted the admissibility of the NCIC report as evidence, and asked if Argenbright agreed. He responded that he agreed that the Commonwealth was "probably right but I'm not sure about that so I'm--I'm going to object to it." Argenbright articulated no other grounds to the trial court as to why the NCIC report should not have been admitted into evidence. Neither the trial court nor the Commonwealth's attorney identified the statute "that allows the record to come in." On appeal we will not speculate on which statute the court may have relied.

Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the judge knew and correctly applied the law. Argenbright argued that the evidence was inadmissible solely because the NCIC printout was not a certified copy of the court record of his prior convictions. He did not object that the NCIC report was not accurate or that it contained erroneous information. Finally, Argenbright did not object to the NCIC report as inadmissible hearsay or that it had not been properly authenticated. Neither did he object on the grounds of lack of adequate foundation. His failure to raise these objections to the trial court constituted a waiver of these objections. We will not consider them for the first time on appeal.
Argenbright v. Commonwealth, (3282-02-3, 25 Nov 2003)(citations omitted)(emphasis added)
While inartfully argued, the practical reality is that the only records which can be introduced are certified copies of prior convictions. NCIC records are hearsay and cannot be certified as judicial records since they are not in the clerk's office. The Defense attorney clearly has an objection that the convictions are not being proven by the one truly possible manner. The prosecutor and judge try to push him off of that objection; he bends but doesn't break - he maintains his objection. And still, his argument is found technically inadequate. The Court of Appeals has to go pretty far to find it technically inadequate but they do (when's the last time you've seen an appellate court assume a fictitious statute in order to make its decision make sense?).

Why? Why, you ask, do the Defense attorneys not make rock solid, coherent, cogent arguments to preserve their objection? Well, it's because the arguments are made off the cuff. Often it's an argument on a statute / rule which both the prosecutor and judge are disagreeing with you about, with no notice that you are going to have to argue about that particular legal point, and you must make sure you do it well enough that an appellate judge and his clerk with as much time as they wish to take cannot find some angle to throw it out. It's dang near impossible to preserve an error mid- trial if the appellate court really wants to throw it out on procedural grounds.

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