Opposition Brief — Pennington v. Town of Front Royal

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APR 18 2001

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No. 00-1404 OFFICE @P THR CLERK

In The

Supreme Court of the United States

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RAY MILTON PENNINGTON, III,

Petitioner,

TOWN OF FRONT ROYAL, VIRGINIA,

Respondent.

¢

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Virginia

¢

BRIEF IN OPPOSITION

¢

JOHN B. ARLEDGE

Rosert W. BENDALL*

SMITH AND DAVENPORT

9253 Lee Avenue

Post Office Box 51

Manassas, Virginia 20108

Tele: (703) 368-8148

Fax: (703) 368-7745

Virginia State Bar #29157

Counsel for Respondent

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee Or I ois oi dade ke cies keine: ii

Statement of Facts and Nature of the Case......... 1

Why the Petition should be denied ................ 5

Principles of Law, Argument and Authorities ...... 6

NS SG iad hla a eker Erste Nanhaedaae et an 6

SEs gcd dia acy say hanow eke Kae ae hakws Weacee 11

6S PO re ere rete ery ran rene 13

CE os a eden a has bebe eee ered aaa nee. 15

ll

TABLE OF AUTHORITIES

Page

CasEs:

ALMENDAREZ-TORRES v. UNITED STATES, 523

U.S. 226 COO. 6cnnc aku ceansces eee eee eae 9

APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000)..... 10

CASTILLO v. UNITED STATES, 530 U.S. 120 (2000) .... 10

FARMER v. COMMONWEALTH, 10 Va. App. 175,

390 S.E.2d 775 (1990), aff'd on reh’g, 12 Va. App.

337, 404 S.E.2d 371 (1991) (em banc) ...........2005. 8

JONES v. UNITED STATES, 526 U.S. 227 (1999) ..... 11

MARSHALL v. LONBERGER, 459 U.S. 422 (1983) ..... 9

MONGE v. CALIFORNIA, 524 U.S. 721 (1998)........ 10

SPENCER v. TEXAS, 385 U.S. SS4 (i967)... 20.20 00s 9

UNITED STATES v. DAVIS, 184 F.3d 366 (4th Cir.

| ee cere errr res re pe ne Sie Raele 10 |

RULEs: |

RULES OF THE SUPREME COURT OF VIR-

GINIA, Part 5 “The Supreme Court”, RULE 5:11.

Record on Appeal: Transcript or Written State-

ee Ter errr re eer ere 4

RULES OF THE SUPREME COURT OF VIR-

GINIA, Part 5A “The Court of Appeals”, RULE

5A:8. Record on Appeal: Transcript or Written

Tee ee ee eee er re 4

RTT |

ili

TABLE OF AUTHORITIES —- Continued

Page

MISCELLANEOUS:

Code of Virginia, 1950, as amended (effective July 1, 1997)

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8s I PS TT SPER ET ETE CPT E CY CE re 7

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Front Royal Town Code § 156-8 (effective July 1,

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STATEMENT OF FACTS AND NATURE OF THE CASE

Respondent amplifies Petitioner’s statement as follows:

On October 10, 1997, shortly after 2:00 a.m., Officer

Charles Robinson of the Front Royal Police Department

was conducting a business check at the Grape Vine Restau-

rant/Texas Spirit Saloon when he observed a pickup truck

driving slowly on Commerce Avenue (Rt. 522) [Transcript

of the trial (hereinafter “TR”), p. 57, Appendix submitted to

the Court of Appeals of Virginia (hereinafter “Appendix”),

Volume I, p. 236]. He watched the vehicle turn right into

the common road serving the building he was checking;

drive into the parking lot of the Grape Vine Restaurant/

Texas Spirit Saloon; begin to turn left toward him, blinding

him briefly with its headlights; and then strike the front steps

and support of the building [TR 60, Appendix, Volume I, p.

239]. The vehicle continued its turn and drove into the

parking lot where it finally came to a stop. Officer Robin-

son had an unobstructed view of the vehicle and never lost

sight of the vehicle from its operation on Commerce Ave-

nue until it came to a stop in the flat, quiet expanse of the

empty parking lot. He immediately approached the pickup

truck and discovered the Petitioner, Ray Milton Pen-

nington, the only occupant of the vehicle, behind the

wheel. The officer saw the dome light of the vehicle come

on for the first time when he opened the driver’s door of

Petitioner Pennington’s vehicle. There were no other per-

sons in the vehicle and no other persons in the area

around the vehicle or leaving the area [TR 62-64 & 99-100,

Appendix, Volume I, pp. 241-243, 278-279]. Pennington

never gave any indication at the time of his arrest that

anyone else had been driving his vehicle for him [TR

74-76, Appendix, Volume I, pp. 253-255].

Officer Robinson noticed an odor of alcoholic bever-

ages about his person and asked Pennington to perform

field sobriety tests, which the defendant substantially

failed. Pennington was also given a preliminary breath

test. As a result of this information, and the observations

of Officer Robinson, Pennington was placed under arrest

and charged with Driving Under the Influence, a third or

subsequent offense within ten (10) years. Pennington

agreed to take a breath test which showed a blood alcohol

concentration of 0.19%. Neither of the citizen witnesses

called by the prosecution, Kirk Kensy or Robert Bird,

(who heard and felt the Petitioner’s truck strike the

building they occupied and who then immediately

looked into the parking lot), observed any person other

than Petitioner in or around the truck.

On October 21, 1997, the General District Court of

Warren County, Virginia set this case for trial on Novem-

ber 19, 1997. At the subsequent trial, Pennington was

represented by counsel and found guilty as charged. Pen-

nington then appealed the matter to the Circuit Court. On

January 9, 1998, the Circuit Court of Warren County,

Virginia set this matter for trial before a misdemeanor

venire on February 24, 1998. At the subsequent jury trial,

the venire returned a verdict of guilty to the charge of

Driving While Under the Influence, a third or subsequent

offense within ten (10) years. After argument, including a

statement made by defense counsel that if the defendant

were given more than six (6) months in jail, he would not

be eligible for work release [TR 250-251, 253-254, Appen-

dix, Volume II, pp. 429-430, 432-433], the jury returned a

sentence of six (6) months in jail and the maximum avail-

able fine of $2,500.

At no time during trial did the defendant raise objec-

tion to the validity of his prior convictions [TR 137,

Appendix, Volume II, p. 316]. The issue of validity was

first raised orally at the first hearing on Pennington’s first

motion to set aside the verdict on June 1, 1998, only after

retaining new counsel. [Letter opinion of trial judge,

Appendix, Volume II, p. 81] Pennington’s objection was

then noted in his supplemental motion to Pennington’s

second motion for a new trial, which was later argued on

August 14, 1998.

On May 18, 1998, the trial court conducted a hearing

on the Town’s motion to quash Pennington’s post-trial

Subpoena Duces Tecum and granted the Town’s motion for

the reasons stated in the trial court's letter of May 18,

1998 [Appendix, Volume II, p. 63].

On October 27, 1998, the defendant was adjudicated

guilty of the charge and sentenced. The court suspended

adjudication and all penalties, including license suspen-

sion, pending appeal.

Petitioner was granted an appeal to the Court of

Appeals of Virginia. On February 29, 2000 a panel of the

Court of Appeals affirmed the decisions of the trial court.

Petitioner’s request for a rehearing en banc was denied.

Petitioner petitioned for appeal to the Supreme Court

of Virginia which refused his petition on September 7,

2000; Petitioner’s request for rehearing and “Motion of

Appellant for Remand or for Dismissal” were denied on

December 14, 2000.

Petitioner implies in his Statement of the Case that

“Defendant’s Statement of Facts To Supplement Tran-

script” was made a part of the record while it was in fact

merely filed. Petitioner also implies that orders of the

trial court were entered without affording Petitioner an

opportunity to object when he was in fact given ten days

from entry of the orders to raise objections in writing and

failed to make such objections to the orders.

The Petitioner has failed to comply with Rule 5:11 (c)

or 5A:8 (c) of the Rules of the Supreme Court of Virginia

to make “Petitioner’s Statement Of Facts To Supplement

Transcript” part of the record. The “Petitioner’s State-

ment Of Facts To Supplement Transcript” was filed

December 28, 1998. A copy was mailed or delivered to

opposing counsel but was not accompanied by notice that

such statement will be presented to the trial judge on any

date. The statement is not signed by the trial judge, Rule

5:11 (c) (2) or 5A:8 (c).

As a result of these errors, the Respondent was not

afforded am opportunity to object to the statement on the

ground that it is erroneous or incomplete.

The Petitioner failed to raise or preserve objections to

the majority of the issues addressed by the Petitioner in

his brief until after trial and the verdict of the jury.

Attempts to correct such failures by a Statement of Facts

were unsuccessful inasmuch as it was never presented to

the trial judge for entry or signed by the trial judge. The

orders of the trial court entered on January 4, 1999,

[Appendix, p. 21, p. 38, p. 172, p. 174] each contained a

paragraph stating:

PuRREINNepaniS nits. tures Sen aieaT eri SNS TRG PRN

“The Clerk of this Court shall certify a copy of

this Order to counsel upon entry. The Defendant

shall have ten (10) days from the date of entry to

file written objections to the form or content of

this Order to the extent that the Defendant rep-

resents that it does not accurately represent the

proceedings of the Court”.

The Petitioner never filed any such objections to the

orders.

WHY THE PETITION SHOULD BE DENIED

The Petitioner presents no important federal ques-

tion. There has been no decision in this matter of any

federal question by a state court of last resort in conflict

with the decision of this Court or of a federal appellate

court or of another state court of last resort. There is no

indication that a lower’ court has departed from settled

law, or has reached an issue of some national significance.

Petitioner challenges a Virginia drunk driving recidi-

vist statute that, by its plain language and state judicial

decisions interpreting said statute, creates enhanced pen-

alties for subsequent offenses of drunk driving when a

prior conviction, either within five or ten years of the

current offense, is charged as an additional element to

drunk driving and proved beyond a reasonable doubt.

That this violates the “Petitioner’s Fifth, Sixth and Four-

teenth Amendment protections” is without basis. This is a

well settled issue that has been decided contrary to Peti-

tioner’s position.

Petitioner asserts erroneous factual findings at trial.

Petitioner asserts that no fair understanding of the pros-

ecution’s evidence could be considered to have proved

each of the elements of the offense charged beyond a

reasonable doubt. This assertion simply is not supported

by any rational reading of the record.

Petitioner without any evidence or testimony placed

in the record, or even offered to be placed in the record,

during any prior judicial proceeding in this matter, and

relying only on Petitioner’s counsel’s assertions in the

petition, attempts to raise the issue of juror prejudice

against the Petitioner during trial.

Petitioner states no special and important reasons for

the grant of a writ of certiorari.

*

PRINCIPLES OF LAW,

ARGUMENT AND AUTHORITIES

Petitioner’s question 1:

May evidence of recidivism only be presented as a

sentencing factor in a state criminal charge and not as

an element of an offense enhancing the penalty of the

underlying crime, proved to a jury beyond a reasonable

doubt? And, may Petitioner raise the issue on appeal

when no objection was made at trial to the admission of

the prior convictions in evidence?

The Petitioner was convicted of driving while under

the influence of alcohol, third offense within ten years in

violation of Front Royal Town Code § 156-8. This Town

ordinance incorporated by reference the statutes of the

Commonwealth of Virginia-criminalizing drunk driving

contained in Article 2 (§§ 18.2-266 through 18.273) of

Chapter 7 of Title 18.2 of the Code of Virginia in effect on

July 1, 1997, as permitted by Virginia Code § 46.2-1313

(“Ordinances enacted by local authorities pursuant to this

chapter may incorporate appropriate provisions of this

title, of Article 9 (§ 16.1-278 et seq.) of Chapter 11 of Title

16.1, and of Article 2 (§ 18.2-266 et seq.) of Chapter 7 of

Title 18.2 into such ordinances by reference.”]

At that time Virginia Code § 18.2-271(C) provided:

If a person is tried on a process alleging a third

or subsequent offense of violating § 18.2-266 or

subsection A of § 46.2-341.24 within ten years of

two other offenses for which the person was

convicted, or found guilty in the case of a juve-

nile, under § 18.2-266, subsection A of

§ 46.2-341.24 or any valid county, city or town

ordinance or law of any other state or of the

United States substantially similar to § 18.2-266

or subsection A of § 46.2-341.24, and is con-

victed thereof, such person shall not be eligible

for participation in a program pursuant to

§ 18.2-271.1 and shall have his license revoked

as provided in subsection B of § 46.2-391. The

court trying such case shall order the surrender

of the driver’s license of the person so con-

victed, to be disposed of in accordance with

§ 46.2-398, and shall notify such person that his

license has been revoked indefinitely.

This clearly showed the legislative intent that to impose

the enhanced penalties for driving while under the influ-

ence of alcohol after a prior conviction, the prior convic-

tion must be proved as an element of that offense beyond

a reasonable doubt, in other words, “tried on a process

alleging a third or subsequent offense of violating

§ 18.2-266.” The penalty provision noted by Petitioner,

Virginia Code § 18.2-270, uses the language “Any person

convicted of a second offense ... ” and “Any person

convicted of a third or subsequent offense . . . ” which

clearly implies that a prior conviction must be charged as

an element and proved beyond a reasonable doubt.

The Court of Appeals of Virginia, the highest court in

the Commonwealth to consider the issue, in FARMER v.

COMMONWEALTH, 10 Va. App. 175, 390 S.E.2d 775

(1990), aff'd on reh’g, 12 Va. App. 337, 404 S.E.2d 371

(1991) (en banc), the Court upheld introduction of evi-

dence of prior DUI convictions in the guilt phase of a

bifurcated trial on charges of DUI as a third or subse-

quent offense saying: “We hold that evidence of prior

DUI convictions does not constitute the ‘traffic record’ as

contemplated by Code § 46.2-943 where the offense

charged under Code § 18.2-266 is a subsequent offense of

DUI punishable under Code § 18.2-270. We further hold

that proof of such charge requires proof of the prior DUI

convictions. For these reasons, the trial court did not err

in admitting evidence of Farmer’s prior DUI convictions

independent of his prior traffic record during the guilt

stage of the trial.” Id. at 181.

At trial in the Warren County Circuit Court, the

Petitioner did not object to the language of the warrant

charging as an element ‘After having been convicted or

found guilty 2 times previously within the past 10 years

of a prior offense as set forth in the last paragraph of

18.2-270”, nor to the admission of the evidence of the

prior convictions at trial on February 24, 1998 [TR 137;

Appendix, Volume II, p. 316]. An appropriate cautionary

instruction was given to the jury regarding the evidence

of prior convictions, without objection by the Petitioner

[Appendix, Volume I, p. 12].

This Court in SPENCER v. TEXAS, 385 U.S. 554,

559-560 (1967), upheld the constitutionality of a Texas

recidivist statute that required proof of a prior conviction

during the guilt/innocence stage of a jury trial. That case

remains good law and was reaffirmed in MARSHALL v.

LONBERGER, 459 U.S. 422, 423 (1983):

(c) Because respondent’s prior conviction was

valid, this case is controlled by Spencer v. Texas,

385 U.S. 554, which is reaffirmed. The Due Pro-

cess Clause does not permit the federal courts to

engage in a finely tuned review of the wisdom

of state evidentiary rules. The jury in respon-

dent’s trial was instructed to consider the prior

conviction only in determining whether the

specification was proved, and it is a “crucial

assumption” of the jury trial system that juries

will obey their instructions. Moreover, as recog-

nized by the common law, any unfairness result-

ing from admitting prior convictions generally

is balanced by their probative value. Pp.

438-439, n. 6.

Petitioner sites a number of cases in support of his

position but they do not stand for the proposition

asserted.

The issue in ALMENDAREZ-TORRES v. UNITED

STATES, 523 U.S. 224, 228-229 (1998), was one of statutory

interpretation inasmuch as the Court stated: “We there-

fore look to the statute before us and ask what Congress

: )

. |

10

intended. Did it intend the factor that the statute men-

tions, the prior aggravated felony conviction, to help

define a separate crime? Or did it intend the presence of

an earlier conviction as a sentencing factor, a factor that a :

sentencing court might use to increase punishment?”

The issue in MONGE v. CALIFORNIA, 524 U.S. 721,

734 (1998) was whether trial like procedural safeguards

implemented by a state in sentencing proceedings com-

pelled the extension of the double jeopardy bar.

The issue in CASTILLO v. UNITED STATES, 530 U.S.

120, 131 (2000) was also one of statutory interpretation,

specifically whether words in a federal criminal statute ‘

create offense elements to be determined by a jury or

sentencing factors to be determined by a judge.

In APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000),

the Court said “[t]he question presented [was] whether

the Due Process Clause of the Fourteenth Amendment

require[d] that a factual determination authorizing an

increase in the maximum prison sentence for an offense

from 10 to 20 years be made by a jury on the basis of

proof beyond.a [Slip Op. 2] reasonable doubt”. This issue

was decided affirmatively.

A similar result was reached in UNITED STATES v.

DAVIS, 184 F.3d 366, 367 (4th Cir. 1999) where the Court

stated: “If a fact is an offense element, it must be charged

in the indictment and, if the defendant chooses to pro-

ceed to trial, it must be proven beyond a reasonable

doubt. If, on the other hand, a fact is a mere sentencing

consideration, it need not be raised until sentencing and

need be proven only by a preponderance of the evi-

dence.”

1]

In JONES v. UNITED STATES, 526 U.S. 227 (1999), the

Court noted that “under the Due Process Clause of the

Fifth Amendment and the notice and jury trial guarantees

of the Sixth Amendment, any fact (other than prior con-

viction) that increases the maximum penalty for a crime

must be charged in an indictment, submitted to a jury,

and proven beyond a reasonable doubt.” Id., at 243, n. 6.

The Fourteenth Amendment commands the same answer

in this case involving a state statute.

These cases cited by Petitioner address issues of fed-

eral statutory interpretation or situations where due pro-

cess requires factors enhancing punishment in criminal

matters be charged and proved beyond a reasonable

doubt. None of those cases stand for the proposition that

in a state criminal recidivist statute the fact of a prior

conviction cannot be made an element of the offense and

be required to be proved beyond a reasonable doubt.

Petitioner’s question 2:

Did the evidence presented support the conviction

of the offense charged beyond a reasonable doubt?

The trial record shows that the testimony of the pros-

ecution witnesses did not conflict on any material issue.

Petitioner has attempted to raise minor conflicts in time,

distance, and position of participants that are readily

explained by the different perspectives of witnesses and

the effect of sudden events. Petitioner asserts that these

immaterial conflicts in witness recollection somehow dis-

credit the testimony of the arresting officer as to his _

uncontradicted testimony regarding his observations of

the operation of a motor vehicle. Petitioner asserts that

12

those minor conflicts on immaterial details mean that the

officer could not have observed a pickup truck owned by

the petitioner drive off of a public road, into a private

parking lot, strike the front steps of a building and come

to a stop in the open and unobstructed expanse of a quiet

parking lot. Petitioner further asserts that the officer

could not say he never lost sight of the vehicle; that no

one exited the vehicle; that he immediately approached

the truck; that he found the Petitioner behind the wheel

of the truck, the sole occupant and in an obviously intoxi-

cated condition that was later confirmed by breath alco-

hol analysis because of these minor and immaterial

inconsistencies.

Petitioner has tried to make a vague and casual state-

ment by the arresting officer to witnesses at the scene as

to where he was when Petitioner drove his truck into the

steps of the building take on a specific, strained and

unintended meaning that he was out of sight of events

behind the building. Petitioner’s interpretation of the

statement is contrary to the arresting officer’s explana-

tion under oath as to what he meant and where he in fact

was located. That sworn explanation was not contra-

dicted by the observations of any other witnesses. The

import of the officer’s statement is not what Petitioner

would like it to mean but rather what the officer in fact

meant and testified to at trial, i.e., that he was around at

the corner of the building in a position that allowed him

to see all the relevant events.

The arresting officer did not know the defendant,

and there is no indication on his part of bias or ill will.

oe hee ete sapere

13

The version of the events offered by witnesses for the

prosecution and the defense at trial were diametrically

opposed and the jury in evaluating the credibility of the

witnesses simply found the testimony of the police officer

more credible.

Petitioner’s question 3:

May Petitioner raise the issue in this petition of

alleged juror prejudice against the Petitioner at trial,

without any evidence to support the assertion?

Petitioner has failed to offer or attempt to offer any

form of evidence or testimony to support the assertions

contained in the petition of juror prejudice in any judicial

proceeding in this matter, other than counsel's assertions.

Petitioner first made the allegation a year and a half after

trial that the juror, David H. Catherman, was a convicted

felon at the time he sat as foreman of the jury and that the

juror bore ill will toward the Petitioner at the time of trial.

Virginia Code § 8.01-338 disqualifies persons con-

victed of a felony from serving as jurors. There is nothing

to suggest that provision is intended to do other than

protect the integrity of the justice system of the Common-

wealth of Virginia. Petitioner has never offered a record

of conviction certified pursuant to Virginia Code

§ 8.01-389 arising from the juror’s felony arrest in the

State of Georgia in 1978. Petitioner has not attempted to

make the juror’s response on the trial court’s jury ques- -

tionnaire a part of the record.

Petitioner had an opportunity to inquire of the jurors

at trial during voir dire whether they may have been

14

convicted felons and did not. If the Petitioner had con-

cerns such an inquiry could have prejudiced the jury |

against the petitioner, he could have requested the ques- :

tion be asked by the trial court and he did not. Any

meaningful inquiry by counsel] at trial has the potential to

make jurors uncomfortable but that is simply part of the

tactical decisions made by trial counsel. There is no indi-

cation anywhere in the record that counsel for Petitioner

looked at the juror questionnaires before or during trial.

A reasonable inference would be that the Petitioner had

no interest in any possible felony convictions of jurors

until it became a last gasp effort to forestall his sentenc-

ing. The mere circumstance of a sitting juror’s prior fel-

ony conviction does not suggest a circumstance that

would probably cause injustice to the defendant in a

criminal trial. It is only with the addition of the allegation

of ill will and the supposed admission of the juror of

consideration of evidence of Petitioner’s prior convic-

tions of drunk driving during deliberations, contrary to

the trial court’s instruction, for a purpose other than

proof of the element of prior conviction to support a

subsequent offense charge, that the appearance of a sig-

nificant issue is created.

If the juror in fact bore such ill will toward the

Petitioner, it would seem incredible that the Petitioner

would not have recognized the juror at trial and even

more incredible that if the juror bore such ill will toward

the Petitioner that he would confide his alleged felony

conviction to his supposed enemy during some appar-

ently amicable conversation. The Petitioner’s allegations

in the portion of the petition regarding “Juror Irregu-

larities” implies that Petitioner approached the juror at

a SS

15

his home while on bond pending appeal and the juror

that bore such exceptional ill will toward Petitioner

promptly confessed to him that he was a convicted felon,

wanted to cause him harm and had ignored the trial

court’s instructions during deliberations. Petitioner fails

to explain the motive for the jurors’ ill will to the Peti-

tioner.

The transcript of the trial proceedings (TR 13-20)

show the juror’s sworn response to the trial judges’ ques-

tions during voir dire: “Are any of you related to the

Defendant, Mr. Pennington, by blood or by marriage, or

do you otherwise know the Defendant?”, negative

response from the juror. “Anybody else who knows Mr.

Pennington?”, negative response from the juror. In other

inquiries by the trial judge as to whether any juror had

information about Pennington the juror’s response was

negative; whether he had an opinion about Pennington’s

guilt, negative response; was he sensible of any bias or

prejudice against Pennington, negative response.

There is nothing in the record for the Court to review

in support of the Petitioner’s bare allegations in the peti-

tion of jury irregularities.

CONCLUSION

The plain error doctrine does not apply where there

is no error. Making a prior conviction an element of the

offense in a recidivist statute is constitutionally permiss-

ible and well settled law. The evidence before the jury

supported the finding of guilt. The allegations of jury

16

irregularities are unsupported by any evidence or testi-

mony and contrary evidence is shown in the record of the

jury voir dire by the trial court.

Respondent requests the petition for writ of certiorari

be denied.

JoHN B. ARLEDGE

*Rosert W. BENDALL

Counsel for Respondent

“Counsel of Record