The Role of Harmless Error: Understanding the ripple effect Swinson v Comm.
Nov 29, 2023
Ben Glass
Imagine being a part of an intense courtroom drama. Today, you'll be stepping into the shoes of legal giants, as we explore the intriguing case of Swinson v. Commonwealth. Our conversation zooms in on the concept of harmless error in criminal cases, and the ripple effect it may have on the jury verdict. Often, it's the weight of the evidence and the impact of jury instructions that shape the final outcome. Let's take a journey into the heart of this legal spectacle.
We'll also take you behind the scenes of a captivating dialogue between Zagorski and Stalard. They represent the defense and Commonwealth respectively, and their insights on jury instruction in a case involving drug distribution are nothing short of enlightening. Together, we'll probe into the differences between the Commonwealth’s and defense's approach, the role of the seemingly harmless error, and how something as simple as the presence or absence of a pager can contribute to the case’s narrative.
As we draw the curtains on this episode, let's delve into the heart of jury instructions and the careful consideration behind them. From the relevance of expert testimony to the debate on retiring certain factors due to modernization, our discussion leaves no stone unturned. We cast a spotlight on the fact finder's role in weighing these factors, and the potential harm of excluding relevant information from the instructions. Tune in as we dissect this grand courtroom drama and reveal the intricacies of the justice system. It's an episode you won't want to miss!
P.S Don't forget to check out other podcasts by Ben Glass - The Court of Appeals of Virginia podcast and the Renegade Lawyer podcast. It's a law enthusiast’s paradise!
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
Imagine being a part of an intense courtroom drama. Today, you'll be stepping into the shoes of legal giants, as we explore the intriguing case of Swinson v. Commonwealth. Our conversation zooms in on the concept of harmless error in criminal cases, and the ripple effect it may have on the jury verdict. Often, it's the weight of the evidence and the impact of jury instructions that shape the final outcome. Let's take a journey into the heart of this legal spectacle.
We'll also take you behind the scenes of a captivating dialogue between Zagorski and Stalard. They represent the defense and Commonwealth respectively, and their insights on jury instruction in a case involving drug distribution are nothing short of enlightening. Together, we'll probe into the differences between the Commonwealth’s and defense's approach, the role of the seemingly harmless error, and how something as simple as the presence or absence of a pager can contribute to the case’s narrative.
As we draw the curtains on this episode, let's delve into the heart of jury instructions and the careful consideration behind them. From the relevance of expert testimony to the debate on retiring certain factors due to modernization, our discussion leaves no stone unturned. We cast a spotlight on the fact finder's role in weighing these factors, and the potential harm of excluding relevant information from the instructions. Tune in as we dissect this grand courtroom drama and reveal the intricacies of the justice system. It's an episode you won't want to miss!
P.S Don't forget to check out other podcasts by Ben Glass - The Court of Appeals of Virginia podcast and the Renegade Lawyer podcast. It's a law enthusiast’s paradise!
This podcast is brought to you by Virginia Injury and Disability law firm, Ben Glass Law.
Real legal help for real people
Your life has been disrupted. You have good doctors and they support you. Your personal injury or long-term disability claim seems like a slam dunk. But there’s a problem: The insurance company doesn’t believe you. “You can’t be hurt that bad! Our medical experts say you’re fine.”
You need a trusted advocate who can uncover all the facts, tell your story to the skeptical insurance company, and get you the money you deserve. You don’t have to do this alone. Contact our Virginia personal injury and long-term disability lawyers today for a free consultation or denial letter review.
The question is not the nature of the error versus non-error. It is the particular kind of error you're talking about. So if the error was, we should have listed all the factors. Contrary to the comment and the jury instruction book, you list them in every case, no matter what. If that's the error, saying some of them and saying including but not limited to these, and then allowing the defense counsel to argue whatever they want to argue on the unmentioned things, that changes the harmless error analysis a lot to me. Why doesn't it?
Speaker 3:
Welcome to the Supreme Court of Virginia podcast. This podcast is brought to you by Ben Glass Law, a personal injury and long term disability law firm with headquarters in Fairfax, Virginia. Listening to oral arguments is one of the best ways to both learn and stay abreast of the substantive and procedural aspects of practicing law in Virginia. By putting these public domain recordings into the form of a podcast, Ben Glass Law has made it easy for the public to access these recordings. All commentary that is not part of the actual court proceedings is that of the show sponsor.
Speaker 4:
Swinson versus.
Speaker 3:
Commonwealth, catherine French-Zegersky.
Speaker 4:
Chief Appellate Counsel. Appellants Counsel Craig W Salard, senior Assistant Attorney General. Appellee's Counsel. Good morning, may it please the court. My name is Catherine French-Zegersky and I represent Mr Swinson. I'd like to set aside three minutes for rebuttal. The Commonwealth cannot meet its burden improving that the denial of Mr Swinson's jury instruction was harmless error. And the Commonwealth can't do it for two reasons. First, portions of the evidence were in controversy and if the jury was properly instructed they could have found that there was no intent to distribute. And second, the court of appeals was wrong in finding that any evidence of guilt was overwhelming.
Speaker 4:
We're dealing with non-constitutional, common, harmless error, that's right and a conviction under that standard must be reversed unless it plainly appears from the record and the evidence that the trial court that the error did not affect the jury's verdict or have its plate effect. And we can't.
Speaker 2:
Given the fact that he confessed to selling the drugs and already sold some of them, that does it render it harmless? If there is any error to be done, or to begin with?
Speaker 4:
He did not confess I he did not confess that he had sold the drugs.
Speaker 5:
What is that His?
Speaker 4:
testimony was that he was joking and that he laughed at it. And for a harmless error analysis. This is not a sufficiency of the evidence case. This is harmless error and for harmless error the jury, if they were properly instructed, because there was credibility, there was a credibility decision for the fact finder to make and appellate courts can't usurp that fact finding function and a harmless error analysis. And because portions of that evidence was in dispute. The police officer certainly testified that he had already sold the drugs and he intended to distribute. But Mr Swinson said he was just joking when he said that. And had they been properly instructed that the absence of certain factors or that there was? If they had been instructed that there was a presence of certain factors, they could infer that the absence of certain factors.
Speaker 2:
So the error itself, though, wasn't that. The error was not a instruction that said you can only consider these limited factors. Instruction said you consider these limited factors, but all the circumstances and facts, including, but not limited to, these few factors, so the error is nowhere near as egregious as no, you can only consider these three things. These are all the things I'm leaving out. I want you to think about it all.
Speaker 4:
The court of appeals assumed error. So we have to come to the position right now that there was a mistake in the trial court and so the only issue is whether or not that error was significant enough to affect the jury's verdict. And we can't say that the error did not affect the jury's verdict or had only but slight effect, because have they been instructed on certain factors? They could have found that. Oh, in addition to Mr Swinson saying that he was just joking about it.
Speaker 2:
The question is not the nature of the error versus non error, it is the particular kind of area you're talking about. So if the error was, we should have listed all the factors. Contrary to the comment and the jury instruction book, you list them in every case, no matter what. If that's the error, saying some of them and saying including, but not limited to these, and then allowing the defense counsel to argue whatever they want to argue on the unmentioned things, that changes the harmless error analysis a lot to me. Why doesn't it?
Speaker 4:
Because the court assumed without deciding. I don't think that it's fair to say that the error wasn't significant. The error is significant.
Speaker 2:
No, you can have an insignificant error and is an error, or you can have a gargantuan error. Yeah, and that affects the harmless nature of it.
Speaker 4:
And this would be a significant error, because case law says that the absence of certain factors are indicative that there is no intent to distribute.
Speaker 2:
And it was the defense counsel denied the opportunity to argue the absence of the factors in the included but not limited to jury instruction.
Speaker 4:
Not explicitly, but here the error, the chalk were impermissibly commented on the evidence by highlighting all the commonwealth's evidence and the factors supporting intent to distribute.
Speaker 6:
Your argument is the door has to swing both ways. If he had very specific denominations of cash equipment associated with distribution of fire or multiple drugs everybody's old standby favorite, the pager that are listed that this court has said are in disher, that maybe can give rise to permissible inference and the commonwealth gets to get the instruction that said, these are the things that point in that direction. You want to be able to say he didn't have those things. That points in the office direction. Neither is dispositive but both give rise to permissible inference.
Speaker 4:
Absolutely. And I think it would be different if in the jury instruction, if it would have just said you can consider facts and circumstances and stopped, but once the court started listing the including. But in the jury instructions have to be fair to both.
Speaker 2:
Including but not limited to Right. Including technical error in the statements. It may be an error in terms of jury instruction discretion, but there's no technical error.
Speaker 4:
It's a significant error because it's impermissibly highlighting certain evidence.
Speaker 5:
Let me ask you this how could the jury have been misled by this instruction, the erroneous instruction? How did it mislead the jury?
Speaker 4:
It would have mislead the jury because it was confusing then. Because it was confusing because the jury instruction is supposed to guide the jury right and so they were only guided in terms of looking at the evidence, and this evidence indicates an attempt to distribute. But they were misled because there was also evidence there under the law that clearly indicated that there was not an attempt to distribute, and that's the misleading and that's the confusing part of it.
Speaker 5:
But the instruction is not exhausted anyway. So you can make that argument if they given the instruction Right.
Speaker 6:
Mr French Zagorski, is the difference that, if it's in the instruction, the Commonwealth gets to say, look, he had this, the court has told you this gift, rise to an inference, as opposed to your inability to say, look, the court has told you this gift, rise to an inference. He didn't have it Exactly.
Speaker 7:
I can follow. First of all, I don't think that jury instruction was confusing. I think what it did is it kept the jury an ignorance. But if you were to get up and argue at closing, if you were trial counsel and you talked about how there was no cash or there was no pager or there was no firearm, would the Commonwealth object that you were one testifying and two basically opining as an expert at closing argument and arguing things that were beyond the purview of closing?
Speaker 4:
Yes, and I think that if you look in this case that and if you actually look at the closing argument didn't say didn't, the defense attorney wasn't saying, didn't really have the opportunity to say, oh, those didn't point to the absence of scales and baggies, and I think it was because it was hamstrung by that jury instruction.
Speaker 2:
Why If I were a defense attorney and I was given this instruction and I object, I think you should add all the factors. No, mr Kelsey, you can't do that. I would go right into it, including, but not limited to includes. By the way, he didn't have scales. We all know that drug dealers use scales. He didn't have a gun. There was no. The prosecutor correct me if I'm wrong never said your honor, don't let him go into that.
Speaker 4:
The prosecutor never said that, but I think the order matters too, because right before closing arguments was one that jury instruction was given. So that jury instruction is saying these are the factors that indicate an intent to distribute and Can I stop you right there?
Speaker 2:
Because I can't. Every time I hear you say that I go wait a minute. It's not saying that. It's saying these are some of the factors and it's not an exhaustive list. It's including, but not limited to, these factors.
Speaker 4:
But it's not fair to highlight and to point out that's a fair point.
Speaker 2:
But the question is the magnitude of the error or the shrinking of the error depends triggers, the, the effect of it, the harmlessness or the harm of. So if it's as weak as this and we've got basically a, he said flat out what he's doing to the cops and then he later said I was just joking why would we own a non-constitutional harmless error standard? Reverse this case.
Speaker 4:
Because under the law this court is tasked with, look, you can't usurp the fact finders function and under the law, if there's portions of the evidence in controversy with there is and if the jury would believe the defense theory and there's facts supporting that defense theory that as a matter of law, under under term and under line and under bell, then that error is not is that error is harmful. And the defendant has met the non-constitutional harmless error standard. And here, because there were portions of the evidence that supported him he was entitled to. He's entitled that he's met the non-constitutional harmless error statute. Because what was in dispute, what was clearly in dispute in this case, was whether or not he had an intent to distribute. That was the dispositive issue. And if the jury was properly instructed on all the factors that the model jury instruction that support it by the law, the jury certainly could have found that he did not have an intent to distribute.
Speaker 2:
What about the comment? It's not directly relevant to our decision, but it does. It's a weird phenomenon that the comment seemed to imply look only mention the factors when there are actually an evidentiary dispute over them. So if there's no evidentiary dispute of the presence or absence of a gun where everyone knows there's no gun in this case, you don't need to mention the presence, absence of a gun in the jury instruction. You can argue it all day long, but you don't need to mention the jury instruction.
Speaker 4:
I think that the difference is you're focusing on the gun and there wasn't affirmative evidence of the absence of the firearm. However, with the other factors there was affirmative evidence that there was absence of equipment related to the drug tried. There was affirmative absence of that he had large. So there was affirmative evidence of factors that this law has said indicate that there was no intent to distribute. Plus, we also have here the expert's testimony that 4.3 grams can be consistent with personal use. So we have all of that. Certainly, if the jury was properly instructed and knew that the indicia of the absence of certain factors they could have and that's what the harmless error under the nonconstitutional standard, they could have found him not guilty.
Speaker 2:
If the instruction left out pagers, had every other factor but pagers, would there be error. Here there was a waiver of that, would there be error that could be waived.
Speaker 4:
I'm sorry.
Speaker 2:
If the instruction left out one factor, that presence or absence of a pager, would that be error?
Speaker 4:
I think it depends on the facts of the case.
Speaker 3:
So for, even like the, so not necessary that there will be error.
Speaker 4:
So even the firearm like, even like I would agree, like the firearm, there's not affirmative evidence of the absence of it, I think I'd be unshakier ground. But the rest of the factors, and certainly the jury could aggregate the absence of those factors and the fact that he only had that he didn't have multiple drugs, that he didn't have large amounts of cash, that he didn't have baggies or scales or other equipment related to the drug trade, that, because they can aggregate all of that, that indicates that there was no intent to distribute and if the jury was properly instructed on that, even for anyone, they could have found him not guilty. But certainly, when you take the aggregate and I just, we have two minutes and 34 seconds.
Speaker 5:
Thank you Good morning may it please the court.
Speaker 8:
Craig Stalard, on behalf of the Commonwealth. Let me start off with your honor justice's question early on. If the fence council had went and argued the additional factors that are outlisted in this, I don't believe that would have been objectionable. The expert testified to a number of factors that the expert considers would be generally present during possessions with intent to distribute. Some of the factors he mentioned weren't present in this case. Those factors were a fact and evidence which were free to be argued to the jury. In closing. This jury instruction would not have prevented that it's a fact and evidence that the jury was permitted to consider and council could have argued that.
Speaker 8:
Council chose not to and part of the basic of that is, I think, council's theory of the case was not that they didn't possess it with the intent to distribute because he didn't have a firearm or because he didn't have a cell phone. He didn't possess with the intent to distribute because it wasn't his, it was his sons, they just found it. The law was not a law. It was not a law. It was not a law. It wasn't a law, it wasn't his sons, they just found it. At one point he said he thought it was epsom salts. So their theory of the defense wasn't we don't meet all of these factors. It was more like there's a confusion. He didn't know what it was and that seemed to be the highlight of what their argument was.
Speaker 6:
No, they did argue the fact that the quantity wasn't sufficient, which the expert did say it's possible that this would be sufficient for, and that's what the court's imprimatur on certain factors that are present, but leaving out the court's imprimatur on the inverse, I will say the jury instruction, as it's phrased is unusual and unique in the sense that I'm not aware of any of their jury instruction where they list or enumerate certain factors the court can consider when determining a specific intent.
Speaker 8:
It doesn't. We don't do that for malice. We have specific things the court can consider for malice. But don't say here's the 12 things you can think about whether it's phenylacrimalice and that's what the court said. The court said it's not the case that they can think about whether it's phenylacrimalice. So this is an unusual slash, unique statute. But the instruction, but I think one of the important things in the statute says consider the following facts and circumstances the fact, because the way it's written is like the presence of a gun. There was no gun, so the fact that there's a presence of a gun doesn't exist here. So it doesn't make sense.
Speaker 9:
It would be confusing to the jury to say a fact here, it wouldn't be confusing to the jury. They're in the nature of negative implications. There are these 12 things that are indicative of drug dealing and if six of them are missing then the jury could look at them and say they have six and they don't have the other six, so maybe they weren't dealing drugs. So the argument makes sense that if the court gives an instruction that lists these things, it lends weight to the defendant's argument that these are missing.
Speaker 8:
I understand the court's position. However, I would also say these are not intended or implied to be elements of the offense. It's not a question of if we have seven of them, we win. If we only have four of them, we lose.
Speaker 6:
The issue is for the jury to make a determination whether or not he was acting with the intent to distribute If all of the things the entire list is present and the Commonwealth wants the standard instruction, the trial court can say no, I'm just going to tell them to consider the facts and circumstances and that's fine.
Speaker 8:
I think there's a set of evidence to get great results and I think there's a set of evidence to grant the instruction and I think we have a different scenario. I don't know, it would be error in that situation to not give it. But I think if the Commonwealth asks for it, there's a set of evidence, the court's at that point required to give it. But I don't think, even setting the sent to the evidence aside, I don't think the instruction necessarily is required for the Commonwealth for asking for it. Now, clearly, the trust is asking for it and they're entitled to instructions on their quote or quote theory of the case. And I don't think their theory of the case is that he's not guilty because he didn't have a gun, he's not guilty because he didn't have a cell phone. Their theory was different than the elements here aren't met.
Speaker 1:
In other words, it wasn't a classic case of I'm just a user, I'm not a big time dealer. I'm a consumer of drugs, not a dealer. This was I don't even know what this stuff is. Whatever it is, it's my son's, et cetera.
Speaker 8:
He made multiple statements which were internally inconsistent about what was happening. I was confused about what the substance was. I didn't know what was going on and then, as a joke, I said I was selling the stripping it. And again, I think it's important to note the elements that were left out were facts that did not exist in this case.
Speaker 5:
Council. Let me stop it for a second. Should this instruction be limited to factors that are testified to by an expert?
Speaker 8:
Pardon me your.
Speaker 5:
Honor.
Speaker 8:
I think, given the practice notes with the instruction, I think there are two reasonable ways to interpret that, one of which is what I'm arguing today the fact has to exist in the facts of the case in order for it to be relevant to be part of the instruction. The other, as the court suggests, is if it's a factor mentioned by the expert that now makes it a relevant issue that the jury can consider and therefore should be part of the instruction?
Speaker 5:
Were all the factors mentioned by the expert in this case included in the instruction?
Speaker 8:
I don't believe they were. I think the expert talked about unusual sums of cash cell phones.
Speaker 3:
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Speaker 8:
He may have mentioned guns, but I'm not specific about that, and those are all factors that did not exist in the facts of this case, which is why, again, the Justice's early question. I think it's fair game to argue that to the jury, which is the purpose of closing. The expert testified to these six, seven, eight factors. You've been instructed on four or five of them, so let's talk about the ones that they didn't mention. Let's talk about the ones the expert said should be here but aren't.
Speaker 6:
Mr Stollard, absent, expert testimony in a specific case going to Justice Kelsey's question about pagers. Is it time for us to retire pager from the instruction?
Speaker 8:
It probably is. I notice we've gone from jury cell phones to multiple cell phones being relevant as opposed to just a cell phone because they've become so ubiquitous, and there is probably some modernization of the constructions and the code itself. That would probably be helpful and beneficial practitioners, but it is what it is and there was no pager here.
Speaker 7:
And just follow up on a response that you just made, sir. You said that if the expert affirmatively testified that there was no cash or no equipment, that in fact that could be argued to the jury. But the jury doesn't get the benefit of having those two things in the instruction to consider against all of the other things that were present in the case.
Speaker 8:
That's correct.
Speaker 7:
How does that not then lead the jury exerbly down a path toward conviction?
Speaker 8:
Again, I don't believe it because even if all the factors are present in the instruction, the jury can still come back with a not guilty, because they still got to determine what these factors are, how much weight to give them and whether or not that's still sufficient to establish the intent.
Speaker 7:
Well, that's true. How is the error harmless?
Speaker 8:
The error is harmless here because, again, one of the factors they were instructed to consider is the statements made by the defendant, and the statement he made here was that he was in fact selling the drugs, and it's hard to imagine a scenario where that factor is going to be outweighed by he didn't have a gun, he didn't have a cell phone.
Speaker 9:
It's hard to imagine. But if all of the other elements of distribution are missing, assume for the sake of argument. And the defendant says I was kidding. You guys thought I was serious, I was kidding, couldn't a reasonable?
Speaker 3:
couldn't a.
Speaker 9:
I was just being honest when he said he was joking.
Speaker 8:
It would depend. There's absolutely no indigestion. At the time he made that statement, he was attempting to make a joke, was doing anything in a humorous manner, was trying to create a levity in the situation. Wouldn't it depend?
Speaker 1:
on demeanor as opposed to. In other words, the jury gets the vibe. He's this poorly educated fella, this hapless wretch or whatever, or oh yeah, nice try. You're trying to back that out now, but I don't buy it. Wouldn't that be quintessentially the role of the fact finder to sort out?
Speaker 8:
In that context it would. I think this case might be different if it was. I'm just selling this stuff, sold for 50 bucks, and I'm away to deliver it now and the officers will think you got a problem and I'm just kidding, judge, I wanted to say I was joking. It's probably taken wrong. I'm sorry, but that doesn't happen. He doesn't at the time try to say oh, I'm serious. I meant that as a humorous, my bad. There's none of that happens at the time the statement is made.
Speaker 8:
At the time the statement is made, the police dog is there. It's alighted. He's asking if he has anything on him. He takes a cigarette pack out. What's got the drugs in it? He's clearly aware of those drugs because it's based on the conversation. I think my interpretation of the case law is harmless. Error must be readily apparent. Discussing slcing even an objective view of the facts. Not the fight must be able to come off, not the light must be able to defend it, but an objective review of the facts here establishes that there was, if there was, air, it was harmless, given his statement regarding the distribution.
Speaker 2:
It seems to me that the debate really turns not so much on the closing arguments and how you infer the theory of the case, but the nature of these factors in this jury instruction. It was referred to a moment ago as elements of distribution, but of course it's not elements of distribution. Correct, these are just factors and there can be many factors. And the lead into the factors list is included, but not limited to. And let's assume, for the sake of argument, there was a poor judgment not to include the pager and everything else that really wasn't in dispute in the case. Then we get to the effect of the error. So it's not simply, is it a sufficiency analysis? It is the nature of the alleged error and then the effect of the alleged error, so that the fork in the road at the beginning is whether or not these are elements.
Speaker 8:
And they're not, and that's the concern when you start listing this is the jury may start thinking them as like elements.
Speaker 2:
Did the prosecutor ever imply any point in closing argument? We don't have this, we don't have that and, as you just heard from the judge, the elements of this offense are blah, blah, blah.
Speaker 8:
The Commonwealth never did that and, as the court correctly noted, the instructions themselves say including, but not limited to there are other factors the jury was free to consider, including the things the expert testified to that were not present in this case. So at no point was we'd have to presume.
Speaker 2:
If there's harm here, we'd have to presume. They heard the testimony of the expert and they blew it off because it included but not limited to instruction, said you better not think about that, even though they sat through the whole testimony and they heard some argument on some of the non included factors.
Speaker 8:
And I don't have the exact word, but the jury also would have been included that you're the sole finder of facts you have. You give weight to the testimony that you heard based on your recollection of it and we presume jury follows the instructions. So if there was a fact developed the trial, we presume the jury heard the fact, interpreted the fact and came to resolution of how to interpret the fact or what way to give it. This instruction, I think, is intended to assist the finder of fact and what types of things to think about when determining whether or not the resident intent to distribute. It's not meant to be exhaustive, it's not meant to be dispositive in and of itself.
Speaker 6:
Is it meant to point in only one direction?
Speaker 8:
I don't believe it is. I believe they are factors to consider and that's all they're meant to be, and these are things that would generally be outside the lay person's knowledge of the types of things required to prove an intent to distribute.
Speaker 6:
You don't dispute the argument that the absence of the factor could give rise to a negative inference.
Speaker 8:
Yes and no. I hate to answer it that way, but there are some of these things which are clearly not a defense to intend to distribute. You can't come in and say I plead not guilty because I didn't have a gun. You can't prove I was intending to distribute. That is not something that was going to happen. The fact he doesn't have a gun is not a defense. The fact he didn't have a cell phone is not a defense to the case Charge. The fact of these factors being present do not prove or indicate a less likely intent, given other factors that may, in this case that were present.
Speaker 6:
The existence of the gun doesn't prove. It does not Intent to distribute, it, just gives advice to it. It just gives rise to an inference.
Speaker 8:
It's a factor the jury is committed to consider along with other factors enumerated, and not regarding whether or not the jury wants to come to the conclusion whether there's an attempt to distribute.
Speaker 7:
Would it have been an error, sir, if the instruction was given to this jury without any modification at all, including the things that perhaps were not in evidence?
Speaker 8:
There certainly wouldn't be any argument about harmless error. We wouldn't be arguing that today. I don't believe it would be error. I do think the trial court was correct in saying that by giving those additional ones it would have been more confusing to the jury than not to give it, because then you run into the concern of if the judge says here's a fact you need to consider the presence of a gun. There was no gun. Was there a gun? I didn't hear about it.
Speaker 8:
The way they're phrased it has a tendency to confuse the jury by making the jury think there are facts there that weren't there, like the gun, the cell phone. Are they supposed to now say the fact, the presence of a gun? If it was phrased the presence or absence of a gun, the presence or absence of a cell phone, that might be different, but the way it's phrased here is the presence of a gun, the presence of a cell phone, the presence of an unusual amount of cash. So it could have been worded differently. It might be more effective or less likely to confuse. But I think the judge is finding that by telling the jury the presence of a gun when there is no gun, is it a confusing fact for the judge to consider.
Speaker 8:
In these circumstances and I've got 18 seconds I'll also say I don't believe I think this court can also affirm by finding there's no error in the granting instruction, because the court followed the instructions written in the practice tips, instructed only on those facts that were present and therefore there was no error, and the court can affirm on those grounds as well. If the court has any questions, I'd ask the court to affirm. Court appeals.
Speaker 5:
All right, thank you, counsel.
Speaker 8:
Thank you, Dr.
Speaker 5:
Rubato. Thank you.
Speaker 4:
From what I understand from the Commonwealth's argument, they agree that really all the factors, that it's very rare not to have this jury instruction list all of the factors and the fact that some of the factors were not listed, it renders the instruction incomplete and when there is an incomplete instruction that's reversible error and that's considered misleading. The Conwell points to they're trying to say that there's really only one theory of the case and that the theory was that he didn't possess it. But it's clear that there were two theories and even the trial court during the motion to strike recognized the two theories. I would point the court to Joint Appendix 132.
Speaker 4:
The trial court said this is really credibility between law enforcement and the credibility of Mr Swinson and there's different theories and the defense theory will be that he did not make any arrangements to sell these drugs and his statement to Deputy Smith is only in jest. So it's clear to everyone that there's two theories and that it was. One of the theories was that he did not intend to distribute the drugs and he's entitled to an instruction on that. I think when we're talking about, when Conwell's saying, it's a credibility, determination, right, Whether or not he was joking or not, and Conwell may not believe that he was joking. This Honorable Court, quite frankly, might believe that he wasn't joking, but this Honorable Court can't usurp the fact-finding function of the jury and it's up to him.
Speaker 2:
But doesn't the magnitude of the error tell us how the effect of the error? In a harmless error analysis that formula works Because you have that strict view of the effect analysis but presupposes a pretty egregious error. But the error is going on a scale. It can be minor in this case arguably minor because it's included but not limited to or huge error.
Speaker 4:
I certainly wouldn't disagree. It was minor and I certainly think, because it directly affected his theory of the case, that it was a significant or huge error.
Speaker 2:
And why didn't the defense attorney that was the theory of the case make every one of these points in closing argument?
Speaker 4:
if it was the theory of the case, Because the jury had already been instructed what factors to consider and that the absence of those factors, by giving the jury an incomplete instruction, that in itself is reversible error, and the only way this court can find that the error was harmless, I think, is by usurping that fact-finding function, and this court cannot do that. Thank you, thank you counsel.
Speaker 5:
This court is adjourned until tomorrow morning at 9 AM.
Speaker 10:
Hey, this is Ben Glass, just budding in here. If you like this podcast, I've got two others you might like listening to. The first are the oral argument recordings of the Court of Appeals of Virginia podcast. The second, if you're an attorney, and particularly if you're a law firm owner, go over and listen to the Renegade Lawyer podcast. We talk about living life to the fullest using the vehicle of a law firm to get there. Check us out and have a great day.
Speaker 3:
The proceeding has been a production of Ben Glass Law, a Fairfax, virginia-based personal injury and long-term disability law firm. For a free evaluation of your claim, visit us at benglaslawcom or call us at 703-591-9829.