01 January 2013

Interesting Virginia Legal Opinions of 2012:
Three Cheers for Justice Powell

Right now, I'm in the middle of catching up on my analysis of various crimlaw legal opinions which have precedential value in Virginia. I've caught up on the US Supreme Court and the Virginia Supreme Court and I'm about half way through the Virginia Court of Appeal's opinions.  As usual, there are a number of opinions which I disagree with, but that's fairly normal.  You see, I have this weird thing about consistent application of the rules of interpretation and I despise when courts interpret a statute "to further its legislative intent" (in other words, adding something the legislature did not put in there).

Anyway, the most interesting Virginia set of opinions this year was a tight race between the Baker and Foltz sets of opinions.  In both, there is badly flawed reasoning by both the Virginia Court of Appeals and the Virginia Supreme Court.

Baker v. Commonwealth, NOV12, VaSC No. 120252:

Baker is entirely Virginiacentric (unlike Foltz, discussed infra).  It concerns the ability to charge a felon who is constantly in possession of a particular firearm over a period of time with more than one violation of Virginia Code 18.2-308.2(A).  In other words, can a felon constantly in possession of a firearm be charged with possessing it more than one time?  Baker was convicted of possessing a pistol three times: the day he stole it, a later date when he tried to sell it, and a third date (the next day) when he actually sold it.

The pertinent part of the statute is 

It shall be unlawful for (i) any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm.
There's a lot more to the statute, including some fairly hefty mandatory minimum sentences, but those aren't the parts which apply to Baker.

In 2011, the Court of Appeals ruled that it was okay to convict Baker of all three possessions because they were in different particular time periods.  The Virginia Supreme Court rejects the Court of Appeal's rationale, but it then goes on to pull an unsupportable switch. While interpreting the charge of possessing a firearm, the VaSC suddenly switches to talking about transporting a firearm.
If the statute was meant to restrict the offense only to the receipt, initial possession, or even extended possession of the weapon, such a specific reference to the transporting or carrying of that weapon would be a frivolous and unnecessary addition to the statutory language.
 Remember, Baker was convicted of three possessions, not three transportations.  He would be clearly guilty of transporting the firearm three times (as he stole it and both times when he took it someplace to sell); he just wasn't charged with that.  It's a different crime.

Having linked the interpretation of "possess" to the interpretation of "transport" the court then creates from whole cloth a purpose (gravamen) which it assigns the statute in the name of the General Assembly.  The statute's purpose "extends to the prevention of the heightened danger each new instance of possession create" and therefore "a new offense of possession can be established with each separate act or occurrence that can be proven by the government."  Since possession continues even if the defendant does not have immediate, actual, physical possession of a firearm, See Wright v. Commonwealth, NOV09,VaSC No. 090308 (possession of firearms five miles away from defendant's location of arrest), what "act or occurrence" probably means is "if it is transported" and it most likely also means "if it is displayed."  Note that neither of those qualities are necessities of possession (and thus not part of its gravamen).

The Dissent (Justice Powell):

Justice Powell's dissent rips the Court's decision to shreds.  She points out that the Court entirely ignored the rule of lenity, that it apparently can't tell the difference between a disjunctive and a conjunctive (possess or transport), that possession is a continuing offense, and that there is a ton of case law contrary to the Court's decision.  It's well thought out and well written and (at least for the moment) makes Justice Powell my favorite Justice.

Personally, I'd like to take all the credit. During my years of standing in Chesterfield Circuit Court arguing cogent and well reasoned legal points for defendants I represented, some of it must have sunk in.  Of course, none of it worked at the time.  I generally remember Judge Powell regarding me with a look that seemed to say "What kind of malarkey and tomfoolery are you trying to sell me today, Mr. Lammers?"  Except, I just can't picture then Judge, now Justice Powell, ever using the words malarkey or tomfoolery.

Hi, Justice Powell!  Just kidding. (I figure I better include the disclaimer just in case she has Google tracking her name and telling her when bloggers in the deep, dark depths of the Appalachian Mountains are writing tomfoolery about her).

Foltz v. Commonwealth, SEP12, VaSC No. 110832:

The Foltz series of opinions consisted of a panel decision from the Court of Appeals in 2010, an en banc Court of Appeals decision in 2011, and a Virginia Supreme Court decision in 2012.  In Foltz, the courts found themselves on the horns of a painful dilemma.  There is absolutely no doubt that Foltz is a serial rapist whom the police caught in the act.  However, an unconstitutional use of a gps tracker on his car led to his capture and prosecution.  The police used a gps tracker on his car and when it indicated he was the rapist they started following him in person.  While tailing him they saw him put on a mask and attempt to rape a woman (they intervened).  The initial panel ruled that there is no societal interest in protecting the privacy of those activities that might occur in a car's bumper and upheld the conviction.  In 2011, the en banc Court of Appeals, sensing which way the wind was blowing on this constitutional issue ruled that even if the gps tracker on the car was unconstitutional, police engaged in personally tailing Foltz saw him trying to commit rape and therefore the constitutionality of the gps tracker was moot.   Of course, all this was before U.S. v. Jones, Jan12, USSC No. 10-125.  By the time the Virginia Supreme Court got its hands on the case Jones had made it extremely clear that gps trackers attached to chattels require a warrant.  Faced with this circumstance the Virginia Supreme Court ruled that all that testimony which was developed because the officers used a gps tracker was harmless error because the victim testified that Foltz was the person who tried to rape her.

The key problem the Foltz opinion has is that the victim would not have been able to identify Foltz without police intervention.  He was wearing a mask. Surely, if the mask came off during the attempt or the victim observed some other clearly identifiable trait that would have been mentioned somewhere in the facts presented.  The police intervention would not have occurred without the unconstitutional use of a gps tracker.  However, I do not have a transcript of the case.  Maybe there are independent facts supporting the VaSC's assertion of harmless error. It would just be nice if they were in the opinion.

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