The VLW Blog

A judge erred in telling jurors that he could lower their sentencing recommendation but not increase it, the Supreme Court of Virginia ruled today.

The judge’s comment came in response the question, “Can the [judge] alter the sentence[?]” Justice Barbara Milano Keenan said the Supreme Court draws a distinction between instructions that further the goal of “truth in sentencing” and those that invite speculation “concerning the likelihood of future actions that may ultimately affect the length of a defendant’s incarceration.”

Instructing a jury that a defendant must serve 85 percent of any sentence imposed is in the first category while telling it that the judge can reduce its recommendation encourages speculation on “whether the circuit court later would reduce [the defendant’s] sentence given the nature of his crimes, the other evidence in the case, or factors unknown to the jury at the time it imposed its sentence,” Keenan wrote in Booker v. Commonwealth.

Failures to communicate were the keys to two medical malpractice cases decided today in favor oF plaintiffs by the Supreme Court of Virginia.

In one, Williams v. Le, a diagnostic radiologist never reported directly to the treating physician or his staff that a Doppler sonogram showed that a patient had a deep vein thrombosis in her right lower leg.

The radiologist testified that he was placed on hold when he attempted to call the physician and was unable to leave a voicemail or talk directly with anyone. Instead, he sent an urgent fax to the physician. The physician did not see the fax or learn of the diagnosis before the patient died six days after the procedure from a pulmonary embolism caused by the thrombosis.

The patient’s estate settled with the treating physician’s practice group and her health plan, and the case went to trial against the radiologist. The jury was instructed that it should decide in favor of the radiologist if it concluded that the death was the result of a superseding intervening cause.

That instruction should have been given only if reasonable persons could conclude that the treating physician’s later negligence was such that the radiologist’s negligence did not contribute in the slightest degree to the death, Justice Donald W. Lemons wrote for the court. The instruction was in error because the uncontradicted evidence was “that the communication problems in this case were begun and put in motion by [the radiologist’s] failure to make direct contact” with the treating physician or his staff, Lemons wrote.

In the second case, Webb v. Smith, a physician agreed to remove the uterus and ovaries of a women in the same procedure. He removed the uterus but forgot to remove the ovaries. The woman underwent a second surgery to have the ovaries removed. A jury awarded her $75,000 in damages because of the necessity for the second surgery.

An expert witness testified that the physician breached the standard of care in by agreeing to perform two procedures in one surgery but in failing to do so. The witness said nothing about the medical need for the second surgery, and the trial judge set aside the verdict because of the absence of expert testimony on causation.

The Supreme Court reversed, 5-2, finding, in an opinion by Senior Justice Roscoe B. Stephenson Jr., that “the present case presents one of the rare instances in which expert testimony was not necessary or appropriate.” Justices Cynthia D. Kinser and G. Steven Agee dissented. They said the physician had testified that there was no medical necessity for removing the ovaries, and there was no testimony to contradict that assertion.

Bummer if you were looking for the Supreme Court of Virginia to really decide three closely watched cases: Miller-Jenkins v. Miller-Jenkins, which appeared to raise the issue of whether Virginia courts will defer to courts of another state on issues involving same sex couples, and Moreau v. Fuller and Gibson v. Commonwealth, which presented the possibility of a ruling on whether judges have the inherent authority to defer judgment in criminal cases.

The problem for the biological mother in a visitation dispute with her former lesbian partner was that her original appeal of the Virginia Court of Appeals decision was dismissed because her notice of appeal was not filed in time. She argued that a second ruling by the Court of Appeals reinstating the registration of a custody order from Vermont in a collateral proceeding gave her the opportunity to challenge the original holding that the federal Parental Kidnapping Prevention Act controlled the case.

Not so, Justice Barbara Milano Keenan wrote for the court. Under the law of the case doctrine, she could not raise the same issue that had been resolved by the dismissal of the first appeal, Keenan said. Chief Justice Leroy Hassell Sr. agreed in a concurrence that the law of the case doctrine applied but added he did not believe the COA had decided the original case correctly.

Justice Donald W. Lemons wrote the opinions in both the deferred judgment cases. In neither case was there a clear order that the trial judge would have deferred judgment. Because courts speak through their orders, the Supreme Court therefore had no reason to rule on whether they have the inherent authority to do so, Lemons wrote.

The decision produced a concurrence from Justice Lawrence L. Koontz Jr. and a counter-concurrence from Justice Cynthia D. Kinser that was joined by Justice Keenan and G. Steven Agee. “Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue,” Koontz wrote. He said he believed the court’s inherent authority extended at least to allowing deferred judgment “in appropriate cases and upon consent of the accused and the Commonwealth.”

Not so fast, said Kinser in acknowledging that lower courts sometimes do defer judgment. “The Court’s inability of to address this issue should not viewed as a tacit approval of the practice.”

The General Assembly may decide the issue. House Majority Leader H. Morgan Griffith introduced a bill in the last legislative session that would give judges the authority to defer judgment in most cases but agreed to carry it over until next year to give the Supreme Court a chance to rule in Moreau and Gibson.

It’s been a long journey for the parties in the case of Simmons v. MTD and the end is not in sight. 4-year-old Justin Simmons was killed by a riding lawnmower in 2004. In 2006, a Roanoke jury returned a $2 million verdict against the maker of the lawnmower. The defendant promptly moved to set aside the verdict, arguing that the alleged defect was present on every other riding lawnmower. In February, Circuit Judge Clifford Weckstein denied the motion and upheld the verdict. Now, the defendant has noted an appeal. With accrued interest, the appeal bond is set at $2.65 million according to the Roanoke Times.

Taboada v. Daily Seven, the premises liability case that greatly expanded the potential liability of hotel operators, has been settled. The case is perhaps better known for the intemperate petition for a rehearing filed by a Roanoke attorney that earned him a contempt citation and a fine from the Virginia Supreme Court.

The Roanoke Times has an excellent account of the case and its significance with links to the Supreme Court opinions and an earlier article.

The Supreme Court of Virginia has granted a rehearing petition in the case of the country’s first felony spam conviction. As explained by the Richmond Times-Dispatch, the issue is whether Virginia’s anti-spam law is unconstitutional on its face.

The nomination of Virginia Supreme Court Justice Steven Agee to the federal appeals bench has turned into a political football as U.S. senators wage their long-running battle over judicial nominations. Despite the wrangling, however, there is no suggestion that the prospects for Agee’s confirmation are threatened.

The skirmishing plays out against a background of political conflict over President Bush’s appointees to the federal courts. Accused of foot-dragging on confirmations, the Democratic leadership of the Senate Judiciary Committee promised to get three appeals court judges confirmed by Memorial Day. Now, Republicans are crying foul because it looks like the Democrats are cherry-picking which nominees they will confirm.

Even though he has Republican roots, Agee is considered one of the Democrats’ “cherries,” since he was approved by both Virginia senators, Democrat Jim Webb and Republican John Warner.

Judiciary Committee chairman Patrick Leahy last week announced a confirmation hearing for Agee to take place Thursday at 2:15 p.m. Republicans immediately grumbled about the fact that two other nominees to the Fourth Circuit have been waiting for many months without any hearings scheduled.

Those other nominees are U.S. District Judge Robert Conrad of Charlotte (a UVA Law grad who practiced for three years in Charlottesville) and South Carolina lawyer Steve Matthews.

With the delays in nominations and confirmations, the Fourth Circuit bench remains one third vacant.

A unanimous U.S. Supreme Court ruled today that the illegality of a search under Virginia law does not require the suppression of evidence seized during the search.

Writing for the court in Virginia v. Moore, Justice Antonin Scalia said in that the high court long has held that probable cause to arrest justifies a search. Virginia is free to make exclusion of evidence seized in violation of Virginia Code Sect. 19.2-74(A)(1) a remedy for an arrest that is illegal under state law but allowed by the Fourth Amendment, Scalia said. The state has not done so, however, and the Fourth Amendment cannot be used as a remedy for an act that does not violate the constitution, he wrote.

The case from Portsmouth involved the arrest of David Lee Moore on a charge of driving without an operator’s license, a misdemeanor for which state law required his release on a summons. Although the attorney general’s office conceded that he was arrested in violation of state law, it contended that the search did not violate the Fourth Amendment because police had probable cause to search Moore. The search produced 16 grams of crack cocaine and $516 in cash. Moore was sentenced to 3 1/2 years in prison.

The Supreme Court of Virginia handed down opinions in a slew of criminal cases listed in a VLW blog Friday, but it didn’t issue a decision in the cases prosecutors and criminal defense attorneys were watching the closest.

Those would be Gibson v. Commonwealth, the Virginia Court of Appeals decision in August that held judges have the authority to defer judgment only when the General Assembly has granted it to them explicitly, and Moreau v. Fuller, Record No. 062688.

That’s the appeal of a writ of mandamus from Danville Circuit Judge Joseph W. Milam Jr. directing a juvenile and domestic relations district judge to enter a finding of guilt after she had concluded that a 21-year-old man had contributed to the delinquency of a minor by having sex with a 15-year-old girl. Judge Stacey W. Moreau had continued the case with the apparent intention of dismissing the charge six months after the trial.

The court was expected to issue a decision in Moreau on Jan. 11, and when it didn’t most court observers concluded that it had not done so because it wanted to decide the case and Gibson at the same time. But the court heard arguments in Gibson in February and again was off schedule Friday in not issuing an opinion in either case.

The issue may turn out to be a matter for the legislature in any event. House Majority Leader H. Morgan Griffith of Salem introduced HB 553, which would give judges the authority to defer judgment in most cases, but moved to carry the legislation over to next year to give the Supreme Court an opportunity to rule on the matter.

The issue long has been a source of contention between judges and prosecutors. Some judges argue that they have the inherent authority to defer a finding of guilt for several months or a year and then dismiss the charge if a defendant has no further legal difficulty.

Prosecutors counter that any such authority must come from the legislature and point to the grant of it in some cases, most notably first-time drug offenses, as support for their position that judges lack the power to do it on their own hook.

A narrow majority of the Supreme Court of Virginia failed today to find a “meaningful distinction” in recently decided cases involving a folded dollar bill and hand-rolled cigarettes.

Those cases were among seven in which defendants prevailed.

The bills in Snell v. Commonwealth, decided by published order today, and Grandison v. Commonwealth, decided last June, both contained drugs.

Snell’s bill, in the description of dissenting Justice Donald W. Lemons, was “tightly folded into a square measuring 1 inch by 3/4 inch.” Grandison’s bill was in an “apothecary fold,” folded three times lengthwise with the ends folded toward the middle.

The majority in both cases said police have no authority to seize “legal material with a legitimate purpose.” The same justices – Lemons, A. Steven Agee and Cynthia D. Kinser – dissented in both cases and contended in Grandison that “the intentional manipulation of an otherwise legitimate object” could provide probable cause for seizing an item.

In Buhrman v. Commonwealth, the majority relied on Brown v. Commonwealth, the 2005 case that ruled that a partially burned, hand-rolled cigarette in the hand of a man asleep in a car was not enough to justify seizure of the cigarette and arrest of the man.

Police tried to distinguish Brown from the circumstances in Buhrman in which a woman staggered and almost fell asleep at a drink machine in a convenience store. Fearing that she was intoxicated, a policeman followed her to her car and saw hand-rolled cigarettes in the door of the vehicle when she opened it to retrieve her identification.

The policeman said she noticed a “faint odor” and the “coloration” of the cigarettes but did not further describe the odor or the color. No different from Brown, a unanimous decision, Justice Lawrence L. Koontz Jr. wrote for the majority. The dissenters, Lemons, Kinser and Justice S. Bernard Goodwyn, said they would have found that “behavior reasonably associated with intoxication, the absence of alcohol and the presence of hand-rolled cigarettes with peculiar color and odor” ample probable cause for arresting the defendant.

In the other criminal cases, the court:

- Held that mere possession of a controlled drug does not “give[] rise to an inference that the defendant was aware of its character.” Young v. Commonwealth involved a prescription pill bottle found in a woman’s purse. The bottle was in the name of another woman and did not contain prescription medicine of the type listed on the bottle.

The owner of the bottle said the defendant had retrieved it for her after she left it in the car and produced prescriptions for the drugs found in the bottle.

- Ruled, with three justices dissenting, in McCain v. Commonwealth that a policeman lacked the authority to pat down the passenger in a vehicle that was stopped for a traffic violation in an drug-trafficking area of Danville at 3 a.m. The dissenters said those facts, plus a brief stop by the car at the home where the policeman knew a drug transaction had occurred months earlier were enough for a pat-down to ensure the officer’s protection.

- Affirmed in Robertson v. Commonwealth the Virginia Court of Appeals holding that neither exigent circumstances nor facts justifying a protective sweep excused the warrantless, forcible entry into a home after the only occupant of the residence had been arrested outside.

- Ruled in Jay v. Commonwealth that the court of appeals has been too strict in using Rule 5A:20(e) to dismiss petitions for appeal by finding that defendants have not been specific enough in providing authority to support their legal arguments.