Findlay v. Commonwealth

• Decision Date: 10 January 2014
• Docket Number: Record No. 130409.
• Court: Virginia Supreme Court
• Parties: Richard Gordon FINDLAY v. COMMONWEALTH of Virginia.

287 Va. 111
752 S.E.2d 868

Richard Gordon FINDLAY
v.
COMMONWEALTH of Virginia.

Record No. 130409.

Supreme Court of Virginia.

Jan. 10, 2014.

[752 S.E.2d 870]

Jerry M. Phillips (Phillips, Beckwith, Hall & Chase, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General; on brief), for appellee.

Present: All the Justices.

Opinion by Justice WILLIAM C. MIMS.

In this appeal, we consider whether the Court of Appeals of Virginia erred in holding that the appellant, Richard Gordon Findlay (“Findlay”), failed to comply with the assignment of error requirements of Rule 5A:12(c) in his petition for appeal.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

Findlay was convicted of five counts of possession of child pornography in violation of Code § 18.2–374.1:1. He appealed his convictions to the Court of Appeals of Virginia (“Court of Appeals”). In his petition for appeal, Findlay's sole assignment of error was that the trial court erred in failing to suppress the evidence seized from his computer. Specifically, Findlay stated his assignment of error as follows:

The Petitioner/Appellant assigns as error the trial court's denial of his Motion to Suppress all of the seized videos that came from the defendant's computer, and his computer hard drive, and all derivatives thereof.

Immediately following the assignment of error, Findlay provided an exact reference to the page of the suppression hearing transcript where the alleged error was preserved. The argument section of Findlay's petition elaborated on the basis of his challenge to the trial court's ruling on the suppression motion; namely, that his consent to the scan, search, and seizure of his computer was not knowing and voluntary.

The Commonwealth's attorney filed a brief in opposition to Findlay's petition for appeal, in which he asserted that the trial court properly denied Findlay's motion to suppress. The Commonwealth's attorney's first and primary argument was that Findlay knowingly and voluntarily consented to the search of his computer, and therefore the search was valid under the Fourth Amendment.

In a per curiam order, a judge of the Court of Appeals declined to address the Fourth Amendment question, ruling instead, sua sponte, that Findlay's assignment of error was insufficient under Rule 5A:12(c). The per curiam order held that the assignment of error “fail[ed] to list any specific error in the rulings below. Instead, it is no more than a base assertion that the award is contrary to law, and Rule 5A:12(c)(1)(ii) makes clear that this is not sufficient to constitute a proper assignment of error.”

Findlay timely filed a demand for review by a three-judge panel. The panel similarly found that Findlay's assignment of error “fail[ed] to list any specific error in the rulings below.” By order entered February 5, 2013, the panel dismissed Findlay's petition for appeal for failure to comply with Rule 5A:12(c).¹ This appeal followed.

II. ANALYSIS

We review questions of law de novo. See Stevens v. Commonwealth, 283 Va. 296, 302, 720 S.E.2d 80, 82 (2012). “A lower court's interpretation of the Rules of this Court, like its interpretation of a statute, presents a question of law that we review de novo.” LaCava v. Commonwealth, 283 Va. 465, 469–70, 722 S.E.2d 838, 840 (2012) (collecting cases).

Rule 5A:12(c) sets out the requirements for petitions for appeal filed in the Court of Appeals. It states in relevant part:

[752 S.E.2d 871]

(1) Assignments of Error.... Under a heading entitled “Assignments of Error,” the petition shall list, clearly and concisely and without extraneous argument, the specific errors in the rulings below upon which the party intends to rely.

Rule 5A:12(c)(1). Subsection (ii) of that paragraph of the Rule goes on to state that

[a]n assignment of error which does not address the findings or rulings in the trial court or other tribunal from which an appeal is taken, or which merely states that the judgment or award is contrary to the law and the evidence is not sufficient. If the assignments of error are insufficient or otherwise fail to comply with the requirements of this Rule, the petition for appeal shall be dismissed.²

Rule 5A:12 (c)(1)(ii).

Thus, litigants are required to identify with specificity the error committed by the trial court. We have adhered to this mandatory rule with good reason:

The purpose of assignments of error is to point out the errors with reasonable certainty in order to direct this court and opposing counsel to the points on which [the] appellant intends to ask a reversal of the judgment, and to limit discussion to these points. Without such assignments, [the] appellee would be unable to prepare an effective brief in opposition to the granting of an appeal, to determine the material portions of the record to designate for printing, to assure himself of the correctness of the record while it is in the clerk's office, or to file, in civil cases, assignments of cross-error.

Harlow v. Commonwealth, 195 Va. 269, 271–72, 77 S.E.2d 851, 853 (1953); see also Friedline v. Commonwealth, 265 Va. 273, 278, 576 S.E.2d 491, 494 (2003). Consequently, it is the duty of an appellant's counsel “to ‘lay his finger on the error’ in his [assignment of error],” Carroll v. Commonwealth, 280 Va. 641, 649, 701 S.E.2d 414, 418 (2010) (quoting First Nat'l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 342, 56 S.E. 158, 163 (1907)), and not to invite an appellate court “to delve into the record and winnow the chaff from the wheat.” Loughran v. Kincheloe, 160 Va. 292, 298, 168 S.E. 362, 364 (1933).

We are of the opinion that Findlay's assignment of error complies with the requirement of specificity imposed by Rule 5A:12(c)(1) and by precedent. Contrary to the Court of Appeals' ruling, Findlay's assignment of error goes beyond the bare-bones allegations prohibited by Rule 5A:12(c)(1)(ii). Findlay does not merely allege that his convictions are contrary to the law. Likewise, he does not state generally that the evidence is insufficient. Rather, Findlay points to a specific preliminary ruling of the trial court—the trial court's denial of his motion to suppress—that he believes to be in error. Such specificity adequately puts the court and opposing counsel on notice as to “what points [appellant]'s counsel intends to ask a reversal of the judgment or decree” and prevents them from having to “hunt through the record for every conceivable error which the court below may have committed.” First Nat'l Bank of Richmond, 106 Va. at 341, 56 S.E. at 163 (citation and internal quotation marks omitted).

The sufficiency of Findlay's assignment of error is further evidenced by the fact that the Commonwealth's attorney clearly understood the issues on appeal well enough to prepare a focused brief in opposition to Findlay's petition.

The Commonwealth now argues that Findlay must go one step further and state within his assignment of error precisely why it was error for the trial court to deny the motion to suppress. In other words, the Commonwealth suggests that Rule 5A:12(c)(1) demands the inclusion of a “because” clause or its equivalent in each assignment of error. We disagree. In many

[752 S.E.2d 872]

instances, such a requirement would be impossible to satisfy, as trial judges do not always state the specific reasons for their rulings, even when requested to do so. When the reasons for a trial court's ruling are known, requiring a “because” clause in each assignment of error would create an unnecessary procedural trap that may bar appellate review of meritorious claims. Where, as here, the assignment of error identifies a particular preliminary ruling of the trial court, as opposed to broadly criticizing the trial court's judgment as being contrary to the law, it is sufficiently detailed to warrant consideration on the merits.

We are guided by our recent decision in Amin v. County of Henrico, 286 Va. 231, 233, 749 S.E.2d 169, 169 (2013). In that case, the appellant included in his petition for appeal to the Court of Appeals a single assignment of error, which simply stated, “[t]he trial court erred in denying the motion to suppress.” In a later brief to the Court of Appeals, Amin added an additional assignment of error arguing that the trial court's conviction order was void ab initio. We acknowledged that “the Court of Appeals was correct in its holding that an appellate court must have acquired appellate jurisdiction before it can hear a challenge to a lower court or...