New theories of guilt on appeal in Virginia criminal cases.

Author:Garrett, Aaron C.

TABLE OF CONTENTS INTRODUCTION I. BOLDEN V. COMMONWEALTH II. NEW THEORIES OF INNOCENCE A. Appellate Procedural Rules B. Virginia Case Law C. Commonwealth v. Hudson D. Comparison Between New Theories of Innocence and Guilt III. NEW THEORIES OF GUILT A. New Arguments on Appeal in Civil Cases B. Criminal Cases C. "Right for the Wrong Reason" IV. THE ADVERSARIAL SYSTEM OF JUSTICE A. Case Law B. Risks of Allowing New Theories of Guilt on Appeal C. Theories of Guilt as a Matter of Law CONCLUSION INTRODUCTION

In the 2003 case of Commonwealth v. Hudson, (1) the Supreme Court of Virginia ruled that a criminal defendant must maintain the same interpretation of the facts on appeal as she argued at trial. (2) The supreme court held that although the facts may be subject to more than one interpretation, a criminal defendant must argue on appeal a "theory of innocence" consistent with that argued below. (3) At his trial for the murder of his wife, Louis Scott Hudson argued that his wife committed suicide. (4) The jury rejected his interpretation of the facts and convicted him of second degree murder. (5) In front of the Court of Appeals of Virginia, Hudson argued that the facts could be interpreted to show that he might have accidentally killed his wife, or that she may have accidentally or intentionally killed herself. (6) The court of appeals ruled that the Commonwealth failed to disprove those additional theories of innocence and overturned Hudson's conviction. (7) The Virginia Supreme Court subsequently reinstated Hudson's conviction on the grounds that the court of appeals erroneously considered a theory of innocence not presented at Hudson's trial,s In accordance with Virginia Supreme Court Rule 5:25, which prohibits appellate courts from entertaining matters raised for the first time on appeal, (9) the court summarily dismissed Hudson's new theory. (10)

The full implications of the seemingly innocuous rejection of a criminal defendant's new "theory of innocence" have not been explored by the Virginia appellate system. (11) Quixotically, the Hudson decision, which on its face seems to be staunchly antidefendant, could actually have far-reaching benefits for criminal defendants in the Old Dominion. This Note argues that if criminal defendants are prohibited by Hudson and the Virginia Supreme Court's rules from presenting new theories of innocence on appeal, the Commonwealth should likewise be prohibited from presenting new theories of guilt or otherwise arguing the facts in a different way than presented at the trial in which the defendant was convicted.

Part I discusses a recent case in which the Virginia Supreme Court permitted the Commonwealth to argue a new theory of guilt on appeal. Part II addresses the treatment the Virginia appellate system gives to theories of innocence proposed for the first time on appeal by criminal defendants. Part III examines Virginia case law and suggests that the Commonwealth should be prohibited from raising new theories of guilt on appeal by analogizing the treatment given to new factual theories presented on appeal both by criminal defendants and in civil cases. Part IV balances the potential risks and benefits of prohibiting new theories of guilt on appeal in criminal cases. This Note concludes that the equity and integrity of Virginia's criminal justice system would be significantly enhanced by the requirement that the theory of guilt articulated by the prosecution at trial must be the solitary interpretation of the facts argued by the Commonwealth when a defendant appeals a conviction. To conclude otherwise is antagonistic to the adversarial system of justice that underlies the entire American legal system.


    On October 19, 2005, the Circuit Court for the City of Hampton convicted Baraka S. Bolden of possession of a firearm while in possession of cocaine with the intent to distribute, possession of a firearm after being declared a felon, and possession of a concealed weapon. (13) The trial court sentenced Bolden to a total of ten years in prison. (14) Bolden appealed to the Court of Appeals, which affirmed his conviction. (15) He then appealed to the Supreme Court of Virginia, which granted him a writ of certiorari. (16)

    The facts of the case were never in significant dispute. Bolden was sitting in the driver's seat of a vehicle parked in a hotel parking lot early in the morning on February 10, 2005. (17) Another person sat in the passenger's A police officer pulled into the parking lot during a routine check of the premises. (19) The vehicle in which Bolden was sitting was parked "cockeyed" across several parking spots, attracting the police officer's attention. (20) Bolden stepped out of the vehicle as the police officer approached. (21) When Bolden got out of the vehicle, he dropped a one-inch square plastic baggie and some rolling papers. (22) The police officer looked at the bag and "concluded it likely contained cocaine." (23) The officer then arrested Bolden and searched his person, finding nearly six hundred dollars in cash, a cell phone, and several bags of marijuana. (24) A search of the vehicle revealed a backpack containing more marijuana, a digital scale, and more plastic baggies. (25) The officer found a second digital scale on the car's floorboard. (26) Underneath the driver's seat armrest, which was down, the officer found a handgun wrapped inside of a plastic grocery bag. (27) Bolden was either "right beside ... or ... sitting on [the handgun]." (28) The weapon inside the bag was 'hidden from common observation." (29)

    Because the handgun was not found on Bolden's person, the Commonwealth's Attorney attempted to prove Bolden possessed the weapon through "constructive possession." (30) In order to prove constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant was aware of both the presence and character of the [handgun] and that it was subject to his dominion and control." (31) The Commonwealth's theory of the case was that, due to his proximity to the weapon, Bolden possessed the handgun found in the plastic bag stuffed between the driver's seat and the armrest. (32) The trial court summarily convicted Bolden. (33)

    Under Virginia's constructive possession case law, however, "[m]ere proximity ... is insufficient to establish possession." (34) Consequently, in his brief to the court of appeals, the Attorney General abandoned the proximity theory of constructive possession, instead arguing that because "firearms are a tool of the drug trade, and ... the facts established [Bolden] was involved in the distribution of drugs, a reasonable inference followed that [Bolden possessed] the firearm...." (35) The court of appeals affirmed Bolden's conviction based on this alternative theory of guilt, (36) and the Supreme Court of Virginia affirmed. (37) Rather than directly address whether the Commonwealth must maintain a consistent theory of guilt when pressed by Bolden's attorney, (38) the supreme court simply held that an appellate court's review is not limited to the evidence and arguments mentioned by a party or the trial judge. (39)

    By failing to restrict the Commonwealth on appeal to the original theory of guilt employed at trial, the Virginia Supreme Court has built uncorrectable error into the justice system in at least two types of cases. The first type are cases like Bolden, in which the prosecution's trial argumentation simply fails to meet the required elements for judicially-created doctrines like constructive possession, but where the facts may have supported such a finding if correctly argued. The second type is more theoretical. Consider the situation where a prosecutor presents his theory of the facts at trial and the defendant effectively refutes each element of the prosecutor's theory. Under Bolden, the trial court could still convict the defendant because it finds the defendant guilty under a second, and entirely different, theory of the facts. What makes these errors uncorrectable after Bolden is the fact that, on appeal, the Commonwealth is allowed to rework a facially insufficient case, yet the defendant never has an opportunity to present facts or arguments in response because Virginia's appellate procedural rules (40) and the Supreme Court's decision in Hudson (41) restrict her to what she argued at trial.

    In the first type of case, in which the facts may or may not be fairly interpreted to meet the doctrinal requirements, the Commonwealth may completely recast the facts and arguments to meet those elements. In the second type of case, a clever appellate counsel could deduce the alternate theory of guilt utilized by the judge to convict the defendant, and present that theory on appeal as the reason to uphold the defendant's conviction. Even more troubling is that when the Commonwealth retools its theory of guilt, it is given the enormous benefits of having its theory viewed in the light most favorable to it, (42) and is accorded "all inferences fairly deducible from the evidence" on appeal. (43) The Virginia Supreme Court's holding in Bolden allows a criminal defendant to be convicted based on an argument never vocalized at trial, to which she never has an opportunity to reply, and then allows the Commonwealth on appeal to articulate and rely solely on that argument as a reason for upholding the conviction.


    1. Appellate Procedural Rules

      In Virginia criminal cases, appellate procedural rules 5:25 and 5A: 18 prohibit defendants from raising arguments not presented at trial. (44) Although framed in terms of responding to objections, Rules 5A: 18 and 5:25 are not "applicable only to evidentiary and similar rulings" (45) but to all "legal decisions and findings." (46) The rules mandate that "[e]rror will not be sustained to any ruling of the trial court...

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