Whitehead v. Commonwealth, No. 080775The Virginia Supreme Court Makes a Major Change in the Law of Appeals

It has been long accepted in Virginia that while the losing party in a criminal case (usually the offender) is limited to arguing the objections made at trial, the party fighting for affirmation could scour the record and argue any issue which would support its position. Not any more.

On 04 June 2009, the Supreme Court of Virginia decided Whitehead v. Commonwealth. Much of the decision is a fairly standard insufficiency of the evidence decision. Then the Court, in a major change which it treats as though it were just following precedent, rejects the ability of the government to raise new arguments during the appeal:

It is true that "[w]e do not hesitate, in a proper case, where the correct conclusion has been reached but the wrong reason given, to sustain the result and assign the right ground." However, cases in which the party seeking affirmance failed to present the argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not "proper cases" for the application of the doctrine. This principle applies in criminal as well as civil cases.
. . .
Because this argument was not made at trial, the Court of Appeals erred when it held that the evidence provided this additional rationale to support Whitehead’s convictions.
. . .
The constructive possession theory was not argued in the trial court or the Court of Appeals. Likewise, the “aiding in concealing” argument was not made in the trial court or the Court of Appeals; nonetheless, the Court of Appeals utilized the theory as a basis for its judgment. The concealment argument is made by the Commonwealth for the first time on appeal in this Court.
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We ... will not consider the constructive possession or concealment theories advanced for the first time on appeal.

This is going to make the job of lawyers in the Attorney General's office much harder. Per the nature of the system, defense attorneys know to raise issues (and objections) in order to preserve them for appeals. On the other hand, prosecutors are neither trained nor prepared to do the same thing. Consider if the defense attorney researches and makes an objection to the entry of the axe as evidence in the Pitcairn axe murderer trial. He chooses his best argument and springs it in the middle of the case. Let's say there are 4 possible reasons that the axe should remain in evidence. The strongest is the 4th. When the prosecutor states reason number two the judge agrees and overrules the objection. How many prosecutors have you seen go on to put the other 2 reasons into the record? How many trial judges are going to tolerate such a thing? That's what the Supreme Court has ruled that he must do in order to preserve those rationales for the appeal.

On the other hand, I can remember losing an appeal when I was doing defense work because of something which wasn't raised in the trial court. It looked like a legitimate argument in the appellate court because the appellate court didn't understand the reality of the trial court from which the appeal had been granted. The trial judge, who did understand the realities of that jurisdiction, would have handled the same argument in a manner which I'm certain would have foreclosed the argument which allowed the AG to win the appeal.

It'll be interesting to see if attorneys actually pick up on this change or if they'll keep right on doing it the way they always have, without noticing the law has changed. The language I quoted above isn't prominent at the beginning of the opinion and a head note would probably just state this case is about sufficiency of the evidence in a receiving stolen property case. Sometimes, it's interesting how blind the legal community can be to changes like this when they happen.