Here’s a scary new Supreme Court opinion: Whitehead v. Commonwealth. The facts of the case are depressing. Whitehead’s boyfriend was breaking into cars and storing his pilfered goods at her apartment, while helping her pay rent and support their daughter. Danville’s finest intervened, and Whitehead was convicted of receiving stolen property based on a theory of “constructive receipt.” The Court of Appeals affirmed her conviction in an unpublished opinion.
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.
Justice Lemons, writing for a unanimous Court, acknowledged that the Supremes will affirm a lower court ruling that arrived at the right result for the wrong reason in a proper case. But he explained that cases in which the appellee failed to present the argument in the trial court, so that the trial court did not have an opportunity to rule on the argument, are not proper cases. And he specified that this principle applies in civil, as well as criminal, cases. Because the Commonwealth did not argue constructive possession before the trial court or the Court of Appeals, the Supreme Court declined to consider it. The Court also chastised the Court of Appeals for considering an argument about the concealment of stolen property that the Commonwealth raised in the intermediate appellate court, but not at trial.
All in all, the Supreme Court reversed the judgment of the Court of Appeals affirming Whitehead’s 32 convictions for receiving stolen property, dismissed the indictments, and entered final judgment. It remanded for a new hearing on the revocation of Whitehead’s previously suspended sentences. (There’s a twist to the revocation issue, too, but that’s for another post.)
What you should know about Whitehead:
- It’s tough on appellees. On a practical level, Whitehead seems to make things awfully hard for appellees. After all, they are the folks who won below. As I read the opinion, it requires appellees to raise all of the arguments that they might want to use on appeal before the trial court. Query how that will play out in practice. Does it mean that, even if your first point is dispositive and you win on it, you still need to raise the other five to preserve them for appeal? After all, the appellate court might disagree with the trial court on your first argument. And if so, do you also need to get a ruling on each of your arguments to preserve them (a la Nusbaum v. Berlin)?
- It’s tough on trial courts. On a structural level, Whitehead doesn’t seem to give enough deference to trial courts. The lower court is presumptively correct on appeal, and it is the appellant’s burden to show otherwise. Just as the a standard of review will often favor the appellee, procedural default rules shouldn’t necessarily apply equally to both parties. It sounds like the Commonwealth has raised a variant of this argument.
- It reviews an unpublished opinion. The Court of Appeals affirmed a 32-count conviction on the basis of a novel legal theory that the Supreme Court has never recognized–and it did so in an unpublished opinion. It seems like Whitehead probably should have made it into the reporter. Commentators have noted the intermediate appellate court’s increased disposition of cases via unpublished opinion, and this is a particularly notable example of the trend.
- It’s not a done deal…yet. Virginia Lawyers Weekly reports that the Commonwealth has filed a petition for rehearing, using “almost apocalyptic language.” I’m sympathetic to the Commonwealth’s position (although overblown language in a petition for rehearing is always a recipe for disaster). In the meantime, this is a case worth watching. If anyone out there has access to a copy of the petition for rehearing that they’re willing to share, you know where to find me.