CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY. A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation. Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights. When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped. At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played. Investigators, of course, were ready to testify to the hearsay statements of the child. That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out. When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it. When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes. The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury. The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards. In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.” It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense. The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof. There were dissents by Judge Kelsey and an even longer one by Judge Beales. These were lengthy and scholarly dissents, though space considerations preclude summary of them here.
Posted by Richard Crouch on August 02, 2012 in Adoption, Child Abuse and Neglect, Constitutional Law, Criminal Law, Ethics, Malpractice & Sanctions, Evidence, Government Employees, Procedure: Divorce & Other Circuit Court Matters, Procedure: Juvenile Courts | Permalink | Comments (0) | TrackBack (0)
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APPEALS – APPEALABLE RECORD – LEE v. LEE — RECONSIDERATION MOTIONS. A very ordinary civil case (landlord-tenant) that might otherwise pass unnoticed holds dire warnings for trial practitioners of every kind. In short, the Virginia Supreme Court advances the sacred banner of Lee v. Lee ever farther into previously unheld territory – the last refuge of the reasonable, conscientious, thorough trial lawyer who is just trying to do his or her job. Or, otherwise put, the “obnoxious loser rule” is extended farther and farther in a most-uncongenial – in fact a rather New-York-City – direction. The Supreme Court majority begins by quoting the simple, obvious statute that did its damnedest to make clear what it meant by repeating it three or four different ways. Space does not permit the quotation here of §8.01-384(A)’s whole text, but suffice it to say that it provides in part: “No party, after having made an objection or motion known to the court, shall be required to make objection or motion again in order to preserve his right to appeal ... .” The Supreme Court immediately follows with “Our rules of Court apply this statute [italics added] such [sic] that ‘[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling’.” Rule 5:25. Here, following what seemed to be the prescriptions in earlier Lee v. Lee cases, the pro se tenant sought to preserve her argument through a written Motion for Reconsideration. This would seem to be a grave challenge and a tall order for the Supreme Court. After all, did not the sacred Lee v. Lee opinion itself (404 SE2d 736, 738 (1991)) specifically list “a motion to reconsider” as one of the “many ways” in which a litigant could satisfy Rule 5A:18 and “make known his objections … and his grounds therefor”? But the majority Justices are equal to it. Ah but, the Supreme Court points out, she did not “obtain a ruling on it.” So, the Supreme Court asks, did she thus in fact avail herself of the opportunity to preserve her argument for appeal? The Court admits that §8.01-384(A) makes it clear that an argument made at trial through a written document, such as a Motion for Reconsideration, is properly preserved unless expressly waived or withdrawn. So now the question, the Court says, is a question of first impression: whether “merely filing” a reconsideration motion properly preserves the point. No, that, it turns out, is not only a waiver, but an express waiver. After all, when all you do is that, then “the record fails to reflect that the trial court had the opportunity to rule upon that motion.” And “because the purpose of Rule 5:25 is to ensure that a trial court has the opportunity...,” the Supreme Court says, the record must effectively demonstrate that the trial court was made aware of the argument that the motion states. Does this mean that Ms. Brandon had to seek a hearing on that reconsideration motion or lose out completely? It sure does. Now believe it or not — and this will be a shock to a large population of trial lawyers, particularly those practicing in counties and cities where a local rule makes absolutely plain that you file the reconsideration motion and must not set it for hearing, and the circuit court will in its wisdom decide sua sponte whether you should get a hearing or not – she “failed to obtain a ruling on her Motion to Reconsider.” And she did not mention any such hearing on her reconsideration-motion in her “written statement of facts.” Thus the Supreme Court points out that nothing in the record indicates that the trial court was made aware of the Motion for Reconsideration and Memorandum in support thereof that were filed. After all, what is a trial court supposed to do, read the file? Section 8.01-384(A) requires that the aggrieved party “make known to the court,” and you don’t do that just by filing some motion. The dissent of Justice Mims is quite short, and to explain it would take longer than to simply quote its four operative sentences, thus: “This is a case in which a landlord withheld a low-income tenant’s security deposit although he was not entitled to it under the law or the lease. Rather than reversing this grave injustice, the Court extends Rule 5:25 in a manner not compelled by our precedents. This case is more amenable to the Rule’s ends of justice exception. While I agree with the Court’s assessment that the exception should be applied sparingly, the unlawful withholding of even $995, the amount in controversy here, is a grave injustice to a person who qualifies for Section 8 housing assistance, as Torri Brandon did.” Brandon v. Cox, 726 S.E.2d 298 (Va. 2012).
PROCEDURE – DISCOVERY COMPULSION – SANCTIONS – CONSTITUTIONAL RIGHTS. The law of “sanctions,” which some lawyers and some judges find irresistible, includes a very interesting combination of the purely punitive punishments, such as fines, and what you might call the “crippling sanctions,” which punish not only guilty lawyers and guilty parties, but also whatever innocent parties may be represented by ill-behaved lawyers. These punishments, which might be likened to an execution by fragmentation grenade, are not found in the “sanctions statute,” Code §8.01-271.1, but they are included in discovery Rule 4:12(b). That was the focus of a recent contract case from the Virginia Supreme Court, Nolte v. MT Technology Enterprises, LLC, in which repeated refusal to respond fully to discovery and comply with the trial court’s orders was finally punished under Rule 4:12(b). The Supreme Court held that the trial court could bar the defendants from introducing evidence, but it could not prohibit them from cross-examining the witnesses against them, nor from introducing evidence on the issue of the amount of the plaintiffs’ damages. The majority holds that the trial judge correctly found that a lesser sanction than default judgment was warranted, but it reverses the denial of the right to cross-examine and introduce counter damages evidence because “the sanction was too harsh.” And the majority reversed the judgment and remanded for further proceedings on the damages question only. Justice Powell, concurring in part and dissenting in part, pointed out that if these defendants were so bad, the trial court could lawfully grant a default judgment, but she emphatically asserts that the denial of the right to cross-examine was more than just “too harsh.” She emphasizes that the right to cross-examine is a vital feature of our system of law, quotes Wigmore to the effect that “no safeguard for testing the value of human statements is comparable to that furnished by cross-examination,” and no statement should be admitted into evidence until probed by that test. More importantly, she quotes Goldberg v. Kelly, 397 U.S. 254, 263 (1970), to that effect, and Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958), stating that the right to cross-examine is not discretionary, but is absolute. She cites Friend on Evidence in Virginia, 112 (2003 edition), and Food Lion, Inc. v. Cox, 257 Va. 449, 450, 512 S.E.2d 860, 901 (1999), emphasizing that only reversal and remand for new trial can follow the denial of this absolute right.
PREMARITAL AGREEMENTS – DISCLOSURE – STANDARD FOR PROVING FRAUD OR NON-DISCLOSURE – ESTOPPEL — CLAIMED REVOCATION/REPUDIATION OF AGREEMENT – SUPPORT — MODIFICATION RETROACTIVITY — DISCOVERY — UNUSUAL DISCOVERY ORDER UPHELD. The Court of Appeals in Makoui v. Makoui, unpublished, 26 VLW 726, 11/22/11, upholds a premarital agreement whose disclosure attachment valued stock at $68,000, even though the owner spouse testified that at the time of the agreement it was worth $250,000 to $300,000.
The Court says the first thing to consider is that the agreement signed by both parties “specifically states each gave a ‘fair and reasonable disclosure,’” and the Premarital Agreement Act says this recitation creates a presumption that it is true. (Code § 20-151(B).)
Second, “the statute requires only that the disclosure be ‘fair and reasonable’ and not that the disclosure include a present fair market value for each item of property disclosed.” And looking at the context, the schedule listed many other intangible asset values totaling $214,000, just counting those whose values were listed, plus “thousands of shares of named stocks for which no value was listed.” (And wife offered no evidence that the value of the non-valued stocks was negligible.)
As for other challenges to the agreement as unconscionable, the Court stresses that it takes both unconscionability at the time of signing and non-disclosure to overturn the agreement under Code § 20-151(A)(2) , and that both parties were “mature, college-educated adults at the time of their marriage,” and “the agreement did not provide for a gross disparity in the division of any marital assets that might come into existence during their marriage.”
Husband had told the wife that he had torn up the agreement when she demanded to see a copy of it. But that does not estop him from later asserting his rights under the agreement, the Court says. Although it seems he had lied about this, the trial court didn’t find that the wife proved that she had relied upon that misrepresentation in any way, and that if she had, that reliance would have been unreasonable. Both Code §20-153 and the prenup’s terms say that a prenup can be revoked or amended only by a written instrument. And “wife was charged with knowledge of both the applicable statute ... and the terms of the agreement.” A useful reminder to make sure that clients have read and understood “boilerplate” provisions, and the statutes that lay out the framework, ground rules and limitations of the agreements they are entering.
The husband cross appealed because he had filed for a modification of pendente lite spousal support, and when the court granted that modification from $5,000 to $1,000 per month it did not make it retroactive to the date he filed the motion. The Court of Appeals upholds, as “husband could have avoided the accrual of the arrearage if he had acted in a timely fashion.” So filing for modification so as to enable a change to be retroactive to the filing date, but then not setting it for hearing, can be dangerous.
The trial court ordered a federal-court-style schedule of evidence disclosures instead of the usual discovery process, and the Court of Appeals says that was not reversible error, at least to the extent the wife preserved her objection. There is a right to discovery under Rule 4:1(b)(1), the Court stresses, but that Rule also says the court may limit “‘the frequency or extent of’ discovery methods ‘if it determines [inter alia,] that: . . . (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.’” And “the granting or denying of discovery is a matter within the discretion of the [circuit] court and will not be reversed on appeal unless ‘the action taken was improvident and affected substantial rights.’” (Citing O’Brian v. Langley Sch. (Va. 1998) and Rakes v. Fulcher (Va. 1970)). At the time when the wife moved to compel answers to interrogatories, the trial court had already disposed of all issues except for four-digit property and alimony issues, so its ruling did not “affect substantial rights.”
Over the past few days we've reported the new laws enacted in the areas of divorce, domestic violence, child abuse/neglect/dependency, and adoption. There were a few other bills passed, some affecting family law, others not in family law but still affecting what we family lawyers do in our practice. Here they are:
HB 1095 Qualified domestic relations order for enforcement of support. Provides that a court may enforce a support order by entering a qualified domestic relations order or other order designed to attach or garnish pensions and other deferred compensation or retirement plans governed by federal law.
SB 89 Garnishment; corrects form listing Exemptions from garnishment. Corrects the form listing garnishment exemptions by replacing the reference to "rent or services of a laborer or mechanic" with "spousal or child support" to reflect amendments made in 1990 (Acts, Ch. 942) that were never incorporated into the form. This bill also contains technical amendments. This bill is a recommendation of the Committee on District Courts. It changes the § 8.01-512.4. Notice of exemptions from garnishment and lien Form to state that a homestead exemption cannot be claimed in a garnishment for child or spousal support.
HB 84 Child custody; judge shall communicate basis for decision, except in certain cases. Provides that the judge's required communication of the basis for his decision regarding child custody or visitation, except in cases of a consent order for custody or visitation, shall set forth the judge's findings regarding the relevant statutory factors used to determine the best interests of the child.
HB 229 Doctrine of necessaries; lien not to attach on residence held by spouses as tenants by entireties. Provides that a lien arising out of a judgment under the doctrine of necessaries shall not attach to the principal residence of a husband and wife that was held by the spouses as tenants by the entireties prior to the death of either spouse where the tenancy terminated as a result of such death.
HB 761 Recording deeds; statement of preparation. Authorizes the circuit court clerk to reject for filing or recording a deed, except for deeds where a public service company, railroad, or cable system operator is either a grantor or grantee, unless it states on its first page that it was prepared either by the owner of the property or by an attorney licensed to practice in Virginia.
HB 101 / SB 94 Rules of Evidence; adoption of amendments or additions of Rules by Supreme Court of Virginia, etc. Provides that the Rules of Evidence (available here) that have been prepared and adopted by the Supreme Court of Virginia and approved by the Virginia Code Commission shall take effect on July 1, 2012. A rule derived from an evidentiary provision in the Code of Virginia shall note such Code section in the title of the rule. Subsequent amendments or additions to the Rules of Evidence must be adopted by the Supreme Court of Virginia by November 15 and shall become effective on July 1 of the following year unless the General Assembly modifies or annuls such amendments or additions by general law. As introduced, this bill was a recommendation of the Virginia Code Commission. This bill is identical to SB 94.
SB 59 Injunctions; requirement for bond. Requires a moving party to post bond only for temporary injunctions. Under current law, a bond is required for both temporary and permanent injunctions. The new version of the law reads:
§ 8.01-631. Injunction bond. A. Except in the case of a fiduciary or any other person from whom in the opinion of the court awarding an injunction it may be improper or unnecessary to require bond, no temporary injunction shall take effect until the movant gives bond with security in an amount that the trial court considers proper to pay the costs and damages sustained by any party found to have been incorrectly enjoined, with such condition conditions as the trial court or judge may prescribe.
Virginia's legislature recently finished its work for the year and made some significant changes to divorce law. Here are the legislature's official summaries of the bills enacted this session, with links to the complete texts and legislative histories.
HB 282 Divorce or annulment; revocation of death benefits. For more information see our recent blog posting, "Virginia legislature addresses beneficiary-designation mess."
HB 126 Affidavits; use in no-fault divorce cases. For more information see our recent blog posting, "New Virginia law allows uncontested divorce without court hearing statewide, but some of us already do that."
HB 677 Power of attorney; termination. Provides that an agent's authority under a power of attorney terminates by operation of law if either the agent or principal file an action for separate maintenance from the other or for custody or visitation of a child in common with the other.
HB 104 / SB 60 Divorce; failure to respond by defendant. Provides that if a defendant fails to file an answer in a divorce suit or otherwise appear after having been personally served with notice of the suit, no additional notice to take depositions is required to be served on the defendant and the court may enter any order or final decree without notice to the defendant. As introduced, this bill was a recommendation of the Boyd-Graves Conference. This bill is identical to SB 60.
HB 635 Equitable distribution; change of venue. Provides that, upon or after the entry of a final divorce decree, a court may, upon its own motion or the motion of any party, transfer to the circuit court for the county or city where either party resides the authority to make additional orders to effectuate or enforce an equitable distribution award made in the decree or a stipulation, contract, or agreement that has been affirmed, ratified, and incorporated in the decree.
HB 272 Death, marriage, or divorce records; changes time period before becomes public. Reduces the time period after which death, marriage, divorce, or annulment records become public from 50 years to 25 years.
APPEALS – FRIVOLOUS – FEE AWARD. A trial judge’s reduction of a father’s visitation after he injured, in anger, one of his four children was obviously so reasonable that appealing it was frivolous, the Court of Appeals held in Craven v. Williamson, unpublished, 26 VLW 934 (1/10/12). The father was obstreperous in his reaction at the trial level to the judge’s rulings, and the judge was not required to elaborate in detail about the reasoning of his decision, so long as the record shows that the father’s arguments were considered. Since the trial court “painstakingly” addressed each factor, and its ruling was quite clear, the Court awarded the mother her appellate fees and remanded for determination of the amount.