14 December 2009

The Virginia Court of Appeals Overrules the Virginia Supreme Court on Whitehead

A while back the Virginia Supreme Court came out with an opinion about the "right result / wrong reason" doctrine wherein it stated in language plain for all to see:
Whether Whitehead received the stolen property here by constructively possessing it is not properly before us, because the Commonwealth makes this argument for the first time on 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.” Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963). 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.
Whitehead v. Commonwealth was a case wherein the Supreme Court (1) rejected as plainly wrong the findings of the trial court and the court of appeals that a person could be convicted of receiving stolen goods when she received benefits from a third party's theft and sale of goods (boyfriend paying her rent, etc.).

(2) Then it dealt with the Commonwealth's assertion that Whitehead was still guilty because she was in constructive possession of the stolen items (they were stored in her apartment). The Supreme Court rejected that argument with the reasoning above which basically boils down to "The right result / wrong reason doctrine does not apply to uphold a conviction if the ARGUMENT was made for the first time on appeal and the trial judge was never given the opportunity to rule on the ARGUMENT."

(3) Finally, the Supreme Court dealt with another argument the Commonwealth presented first during the appeal: concealment as proof of participation. This the Supreme Court rejected this argument by (a) first adopting the rationale that it had under constructive possession argument
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.
and then it moved into an area which the Court of Appeals had previously addressed. The Supreme Court noted with approval prior Court of Appeals cases which had held the rather commonsense position that (b) an appellee cannot argue on appeal a position which would require evidence which had not been provided during the trial. In fact, it takes the Court of Appeals doctrine one step further.
Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible.
In making this determination, the Supreme Court discussed how this applied to both the constructive possession argument and the concealment argument.

So, in the end, the Supreme Court ruled that an appellee's new argument couldn't be heard when first raised during the appeal because (1) the trial judge had no opportunity to rule on the new argument and, (2) if the Commonwealth tried to prove its case via one method of proof it cannot offer another method of proof in the appeal because the defense attorney had no opportunity to rebut the new method in the trial court.


Comes now the Court of Appeals.

In Perry v. Commonwealth the Court of Appeals is faced with the Commonwealth making a probable cause argument instead of the reasonable articulable suspicion. The Court of Appeals "assume without deciding" that the trial court got the reasonable articulable suspicion decision wrong. Then it moves on to the right result / wrong reason doctrine and Whitehead. It specifically quotes the first part of the Supreme Court's rationale
The Supreme Court refused to consider this new theory of guilt offered by the Commonwealth, stating "[C]ases 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."
Then comes the all important word of the new opinion


Then the Court of Appeals goes on to decide
Whitehead, contrary to the appellant's claim, applies only when the new argument made on appeal involves a consideration of factual findings that the trial court never reached, rather than application of a different legal theory to facts already considered by the trial court.
Following this, the Court of Appeals rules that since both reasonable articulable suspicion and probable cause are 4th Amendment issues and arguing one 4th Amendment issue at trial suffices to preserve other 4th Amendment issues arising from the same acts.
We find that this case presents an appropriate situation for the application of the right result/wrong reason doctrine. . . . [T]he parties here were aware at all stages of this case that the courts would look to the Fourth Amendment to determine if Trooper Weidhaas’s actions were appropriate - regardless of whether the question involved probable cause or reasonable articulable suspicion.
It then goes on to uphold the search based upon a reason never argued in the trial court.


Of course, this is, as even the Court of Appeals obviously noted, contrary to the holding in Whitehead. This argument was never made before the trial judge and therefore never allowed the trial judge to an opportunity to rule on it. Thus it fails the first part of the Supreme Court's decision.

As to the second part of the Supreme Court's decision, it's obvious that the appellant never had the opportunity to rebut this different argument in the trial court. An argument never made in the trial court isn't even presented for a defendant to rebut. Yes, they both fell under the umbrella of the 4th Amendment, and I'll "assume without deciding" that no different evidence would have been presented had the new argument been made. Still, the arguments which would be made as to whether an arrest was legitimate under the 4th Amendment are far different from the arguments made as to whether there was reasonable articulable suspicion. The standard of a Terry pat down and the facts which justify it are more easily met than probable cause. A defendant arguing against probable cause for an arrest is definitely going to be making different arguments than a defendant arguing against reasonable articulable suspicion. The one saving grace here for the Court of Appeals is that while this part is wrong it would probably be held to be harmless error.

Hopefully, the Supreme Court will take this case and decide whether it will alter its decision to come into compliance with the Court of Appeals or overrule the lower court. If it doesn't do it with this case the Supreme Court will have to face this issue at some time in the future because every time the Attorney General's office and the Court of Appeals use Perry the obvious appeal to the Supreme Court will be based on Whitehead.


Bricker said...

But aren't we maxing apples and mangoes here? You correctly point out that arguments addressing reasonable suspicion are not the same as arguments addressing probable cause, but don't highlight the fact that the two predicates which the suspicion and the probable cause are leading to are different. Reasonable, articulable suspicion is clearly a lower standard than probable cause. But the trooper had to be able to articulate his reasonable suspicions that the accused was armed and dangerous to justify a Terry frisk. And he needed probable cause to believe the accused was in possession of a controlled substance before searching him on that basis.

Now, the Commonwealth has- shockingly - argued implicitly that the mere smell of marijuana supports not only probable cause for the possession of marijuana, but reasonable suspicion that the individual is armed -- and, indeed, that he's also under the influence of PCP. Reasonable suspicion is a low bar, yes, but it does contain the word "reaosnable," which in my view scuttles those latter conclusions.

I the basic ground for distinguishing this case from Whitehead holds up. It's of no moment that the trial court didn't hear arguments about a different legal theory, since the appellate courts will review those questions de novo anyway. As long as the factual allegations don't change, as they did in Whitehead, the court's use of a different legal theory is kosher.

Where this goes off the rails is the assumption you give them a pass on: that no different evidence would be presented to the trial court for a Terry stop suppression as opposed to a probable cause search incident to arrest. The Terry stop focuses on weapons and officer safety; the probable cause on the possession of a controlled substance. Unless the couurt has taken judicial notice of the claim that pot smokers are per se violent, weapon-wielding PCP users, this assumption fails.

By the way -- I was the "Anonymous" commentator a few days ago on expungement, and am indeed a loyal fan. :)

Bricker said...

So much for editing. I guess that's a lot of apples and mangoes we're "maxing." :(

Ken Lammers said...

I gave the CoA a pass on the facts part because I think, whether the facts are different or not, the CoA badly misinterprets the opinion from the Supreme Court. The Supreme Court's opinion was based on whether or not the ARGUMENT was heard by the trial judge and then it also adopted the no argument based upon new evidence rule (I may have been unclear about this). I was disturbed by the CoA cherry picking the second part of the Supreme Court's ruling and choosing to ignore the first part.

Bricker said...

Not to bludgeon an ailing equine, but...

...It seems clear that the general rationale of requiring that arguments be raised below -- the [i]raison d'etre[/i] of Rule 5A:18 -- is to give the trial court an opportunity to rule intelligently on the issue, which may or may not include making specific factual findings on mixed questions of fact and law.

When a party in front of the appellate bench offers an argument that wasn't raised below, the handicap suffered by the opposing party is obvious, and nicely articulated in [i]Whitehead[/i]: "Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible." Notice that while the sentence begins with the mention of argument, the gravamen is that Whitehead was unable to present evidence to permit factual findings that could have rebutted this new argument. Pure argument is not the key: the lack of any chance to adduce facts is.

And it's this aspect that the Court of Appeals fumbles egregiously in [i]Perry[/i], as I discussed above.

So I'm still in disagreement with you that [i]Whitehead[/i] stands for the proposition that pure argument, without an underpinning factual connection and made for the first time on appeal, can be discarded. It's true that [i]Whitehead[/i] appears to dispose of the constructive possession argument on those grounds, but look at the sentence that precedes the one you quoted:

"Both the constructive possession and concealment methods of proof require presentation of facts that would not be necessary under other methods of proof supporting conviction for receipt of stolen property. The Commonwealth clearly articulated its case for prosecuting Whitehead – constructive receipt. Because the Commonwealth limited its method of proof at trial, Whitehead was not on notice to present evidence to rebut any other method of proof possible." This clearly rejects the constructive possession argument not simply because it was never made at trial, but because, having not been made at trial, Whitehead had no opportunity to offer evidence to rebut the facts necessary to sustain a conviction for constructive possession.

Indeed, in Whitehead, the Supreme Court of Virgina quotes with approval Blackman v. Commonwealth, 45 Va. App. 633, 642-643, 613 S.E.2d 460, 465 (2005) ("...an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require new factual determinations.")

I'm sorry - am a big fan, but I think your reliance on argument as the lesson from [i]Whitehead[/i] is myopic. [i]Whitehead[/i] means new argument on appeal related to specific factual findings, the lack of which are fatal to new arguments on appeal.

Ken Lammers said...

5A:18 doesn't apply to the appellee (usually the Commonwealth) because 5A:18 is about the appellant's preservation of the issue for appeal by objecting. The Commonwealth, which claims it was correct, has nothing to object to.

Reread Whitehead II.A. Go no further. You cannot get to Perry from there. It's based solely on the fact that "[C]ases 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 [right result / wrong reason] doctrine." There is no mention of anything to do with the argument necessitating new or different evidence.

I agree with you that Whitehead II. B. is about whether the appellant had the opportunity to present rebuttal evidence & argument. However, it's of no moment that the Court pointed out that the argument in II.A. would have also been disposed of under this rule as well. The Court completed its analysis under II.A. Then it started a completely new section and rejection under II.B. Different sections, different rationales.

So, while I realize that the necessary new evidence rule clearly applies in the II.B. rationale, a plain reading of II.A. leads me to conclude that, absent a statement otherwise in II.A. or a future case from the Supreme Court that the failure to present the argument rule of II.A. is valid and conflicts with Perry.