In Wells v. Commonwealth, an opinion published May 1, 2012 by the Court of Appeals of Virginia (involving an embezzlement trial before Judge Kassabian in Fairfax), the Court of Appeals held:
Furthermore, it must be noted that appellant, at trial, did not object to Commonwealth’s Instruction No. 4ii which stated, in part, that the prosecution must prove that “the defendant wrongfully and fraudulently converted . . . to the use of another. . .”
The Supreme Court of Virginia opined in Wintergreen Partners v. McGuireWoods, 280 Va. 374, 698 S.E.2d 913 (2010), “‘instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review.’” Id. at 379, 698 – 6 -S.E.2d at 916 (quoting Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989)); see also Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006); T.L. Garden & Assocs. v. First Savings Bank of Va., 262 Va. 28, 31, 546 S.E.2d 705, 706 (2001).
As such, “any objection to the instruction on appeal is waived. Rule 5A:18.” Wubneh v. Commonwealth, 51 Va. App. 224, 228-29, 656 S.E.2d 418, 420 (2008), overruled on other grounds, Startin v. Commonwealth, 56 Va. App. 26, 690 S.E.2d 310 (2010) (en banc). Thus, appellant is bound by Instruction No. 4ii, i.e., that the Commonwealth need not prove appellant personally benefitted from the misappropriation.
This seems like a major departure from at least two general rules.
First, Rule 5A:18 has repeatedly been held NOT to bar consideration in criminal cases of whether the jury was properly instructed in cases where trial counsel failed to object to jury instruction. That long-standing rule is based on the U.S. Supreme Court’s holding that Due Process requires a jury be properly instructed on the elements of the offense charged, and the Supreme Court of Virginia’s ruling that the Ends of Justice Exception applies in criminal cases to save appellate issues not preserved by trial counsel when the trial error would result in the deprivation of substantial constitutional rights such as Due Process.
It seems unlikely that long-sitting CAV Judges Frank and Beales – who drafted the opinion and were on the panel, respectively – don’t know this rule, but they do not mention it at all. Judge Frank’s opinion does note that “Appellant did not object at trial or in this appeal to the Commonwealth’s Instruction No. 4ii but contends her Instruction No. F should have been granted to be read in conjunction with that instruction. We note that the first sentence of Instruction No. F is inconsistent with the Commonwealth’s Instruction No. 4ii and should not have been allowed.”
It may be that appellate counsel failed to assign error to the trial court’s decision to give the Commonwealth’s instruction and therefore waived his Due Process argument by instead arguing that his own instruction should have been granted to be read in conjunction with the Commonwealth’s instruction. That is a very fine point, and without access to the brief filed by the defendant’s attorney it is impossible to tell whether he complied with the requirement to assign error to the instruction given by the trial court. Therefore, this may be new law, or simply a strange way of saying that appellate counsel failed to make the appropriate argument on appeal – which leads to our second point: the opinion contains an apparent departure from past practice.
No prior Virginia appellate case has applied the civil “law of the case” doctrine to criminal cases. I’m certainly aware of many cases where defense counsel – myself included – has argued the point in circuit court criminal matters, to no avail. Indeed, in one instance I know of, the Commonwealth lost a suppression motion, entered a nolle pros (voluntarily dropping the charges with the option to bring them back), and then re-indicted the offense. Defense counsel then sought to have the trial court suppress the evidence again based on the ruling of the judge on the same issue the first time around. The second judge refused, said “Law of the Case” doctrine didn’t apply, and then denied the defense suppression motion the second time around.
As this case may contain both a controversial new rule and a possible departure from a previously established rule, it seems like a good candidate to be reviewed by the Virginia Supreme Court.