Procedural Default Strikes Again

A recent opinion from the Supreme Court of Virginia shows once again the perils of procedural default and the importance of preserving specific arguments. The case is Commonwealth v. Barney, published on March 16. (Click here for the full opinion on the Court's website). The opinion is rich with issues worth discussing, look for more content later. The defaulted argument this time revolved around jury instructions.

The defendant in this case was accused of using a firearm in the commission of a felony. The evidence in the record showed that she handed the cashier at a drug store a note that said "this is a robbery" and demanded cash. After handing over the note, she put her hand in her pocket and pointed it toward the cashier in a way that clearly gave the impression that she had a gun in her pocket, and the cashier definitely got that message. The cashier testified that she was afraid she would be shot immediately if she did not comply, and handed over the contents of the register. Notably, the cashier also testified that she never actually saw a gun, and (significant to the Court of Appeals, but not the Supreme Court) the defendant never said that she had a gun. No gun was ever recovered by the police.

The jury instruction issue revolved around the definition of a firearm. In Virginia law, the definition of "firearm" includes objects "not capable of expelling a projectile...but [giving] the appearance of being able to do so." This definition is intended to include realistic toys and replica firearms when such objects are used to commit crimes. The defendant did not object to the Commonwealth's proposed jury instruction that stated this definition exactly as written in the code, but proposed a number of alternate "clarifying instructions" including one in particular that said "the defendant's fingers are not considered a firearm." After receiving assurances from the prosecutor that he would not argue to the jury that the defendant's fingers could be considered a firearm, the judge refused all of the defendant's proposed "clarifying instructions" and granted the un-objected-to defining instruction from the Commonwealth.

The defendant was convicted of using a firearm in the commission of a felony. On appeal, she argued that without her "clarifying instructions" the definitional instruction was intrinsically ambiguous. In its opinion overturning the conviction, the Court of Appeals agreed, finding that without the amplifying instructions the definition "left room for the jury to make a conclusion contrary to law," i.e. the conclusion that the defendant's finger in her pocket could be considered a "firearm."

When the Commonwealth appealed to the Supreme Court, however, procedural default once again reared its ugly and confusing head. Pointing out that the defendant had never actually objected to the definitional instruction, and had repeatedly acknowledged that the granted instruction was a correct statement of the law, the Supreme Court found that any later argument that the instruction was ambiguous or vague had been waived pursuant to Rule 5:25. It also found that the un-objected-to instructions became the law of the case, making them binding on appellate review.

While both the defendant, and the Court of Appeals, thought that the issue was sufficiently preserved by objecting to the trial court's failure to give the defendant's proposed clarifying instructions, the Supreme Court explained why it saw things differently: The trial court has discretion to grant or reject instructions based on the evidence and the theories of the case. In this case, the Commonwealth never claimed that the defendant's fingers could be "considered a firearm" for the purposes of the trial. The prosecutor simply argued that the circumstantial evidence in the case showed that as a matter of fact, the defendant did have a small gun in her pocket. The defendant argued that she did not actually have a gun, but was only using her fingers to pretend that she had a gun. Her lawyer even noted during his closing argument that the defendant's fingers would not meet the legal definition of a firearm, in effect giving the jury the very explanation that he had asked the judge to give. In the end, the jury simply believed the circumstantial evidence and accepted the prosecutor's argument, rejecting the defendant's claim that she never had a gun. That made the "clarifying instructions" unnecessary, so it was not an error of law to refuse to give them. The Supreme Court reversed the Court of Appeals and reinstated the conviction.

This opinion illustrates both the importance of preserving specific arguments and legal theories, and the extremely steep hurdle appellants have to get over when the standard of review is "abuse of discretion" as it is on decisions like whether to grant or reject a jury instruction. Although a trial judge errs by granting a jury instruction that improperly states the law, in this case the granted instruction was a proper statement of the law by itself. The lesson, which certainly would not have been obvious to me before reading this opinion, is that even if you think an instruction accurately states the law, if you are proposing "clarifying" instructions to avoid ambiguity in the primary instruction, you better object to the primary definitional instruction as well and state clearly for the trial judge why you believe the clarifications are necessary. That will at least give you the chance of having the argument reviewed on the merits. Failure to object and to raise the specific legal theory on which your objection is based will preclude you from raising that argument later on appeal.

The rest of this opinion deals with an even bigger question...whether the circumstantial evidence was, as a matter of law, enough for a rational jury to conclude that the defendant actually had a firearm. That question has plagued criminal defendants, defense lawyers, and prosecutors for many years and this case had actually been to the Court of Appeals once before on that very issue. In my next offering I will explore that issue a bit more deeply. The Supreme Court was divided 4-3 on how this case should have turned out, a split not terribly common on Virginia's highest court.