Whitehead Revisited
A few months ago, we wrote about the Supreme Court's treatment of the "right-result-wrong-reason" (RRWR) rule in Whitehead v. Commonwealth. We were relatively critical of the decision, but took heart in the fact that the Commonwealth had just filed a spicy petition for rehearing.
Flash forward a few months. The Supreme Court has reconsidered Whitehead, but the result isn't exactly what the Commonwealth was looking for. In a revised opinion issued last Thursday, the Court stands by its original ruling, but further explains its reasoning. The result benefits pretty much everyone but the Commonwealth.
Whitehead, you will recall, was living with a boyfriend who was breaking into cars and hiding stolen goods at their apartment. That's a dealbreaker. Whitehead was convicted of 32 counts of receiving stolen property. The Commonwealth never argued that Whitehead was involved in the actual theft of any of the items. Instead, it based its case at trial on a theory of "constructive receipt."
The Court of Appeals affirmed on this ground, and the alternate ground of constructive possession. It also added a third ground, concealment of stolen property.
This did not sit well with the Supreme Court. Writing for the Court, Justice Lemons rejected the constructive receipt theory--which the Supreme Court it has never applied to the offense for which Whitehead was convicted. It then turned to constructive possession, which it has recognized. But since the Commonwealth raised that theory for the first time on appeal, the Court refused to consider it. The Court acknowledged that, "in a proper case," it will affirm where the lower court reached the right result for the wrong reason. And it noted that the RRWR rule applies in civil as well as criminal cases. But the Court declined to apply it in Whitehead because the Commonwealth hadn't argued constructive possession before either the trial court or the Court of Appeals.
The Court then addressed the concealment theory, which the Court of Appeals apparently came up with on its own. Because this argument was not raised either at trial or in the intermediate appellate court, the Supremes held that the Court of Appeals erred by recasting the evidence to support an argument not previously made.
Now we get to the fun part, where the Court clarifies its reasoning. Justice Lemons explains that the different methods of showing receipt of stolen property carry different proof requirements, which involve the presentation of different facts. Because the Commonwealth had limited its method of proof at trial to constructive receipt, Whitehead was never placed on notice that she had to present her own proof to rebut the other theories that it later advanced. The Constitution of Virginia grants an accused the right to demand the cause and nature of his accusation. To allow the Commonwealth to advance different methods of proof on appeal that were never argued in the trial court would deny Whitehead these rights.
What You Should Know About Whitehead Part Deux:
- Right result, right reason. 'Nuff said.
- It's a vast improvement. The added language in the revised opinion shows why this case was not a proper one for the application of the RRWR doctrine--namely, the constitutional concerns implicated in a criminal case, where the prosecution changes its theory of the case midstream. This simultaneously clarifies and cabins the Court's reasoning. One of our concerns with the initial opinion was that it did not seem to give appropriate deference to the lower courts. The expanded opinion addresses this structural concern, and suggests that . . .
- It probably only applies in criminal cases. Both the original and revised Whitehead opinions note that RRWR rule applies in civil as opposed to criminal cases. That gave the Court's refusal to apply the doctrine the troubling potential to bleed over into civil cases. But to the extent that the revised opinion highlights the constitutional underpinnings of the ruling, it probably only applies to criminal cases. That seems like the right result, and an appropriate way to balance competing interests.
When we first wrote about Whitehead, we called it a "scary new Supreme Court opinion." Consider our fears assuaged.
The Supreme Court has little trouble reversing on this point, as it has never recognized a theory of constructive receipt for this offense. So far, so good--but there's more. The Commonwealth argued, for the first time on appeal, that Whitehead received the stolen property under a theory of constructive possession. The Court was having none of that.
