Appeals: Incomplete record dooms appeal

Where a defendant’s principal argument on appeal rested on a document that was not included in the record transmitted to the Court of Appeals, and the defendant’s attorney failed to have the record supplemented even after the omission was brought to his attention, it was not properly part of the record on appeal.

Background

A jury convicted Joshua Adam Eckard of 12 counts of possession of child pornography in violation of Code § 18.2-374.1:1(A)-(B). He unsuccessfully appealed his convictions to the Court of Appeals on multiple grounds, including that the circuit court erred by denying his motion to set aside the jury verdict for alleged juror misconduct.

Record

Rule 5:15(a) provides, in relevant part, that in cases appealed to this court from the Court of Appeals, “the record in this Court consists of the record as filed in the office of the clerk of the Court of Appeals.” The record filed in the Court of Appeals did not include Eckard’s written proffer. His counsel should have discovered this fact prior to filing his opening brief in the Court of Appeals.

That brief quotes from the written proffer but instead erroneously cites the page number in the digital record that corresponds with the court’s order denying the motion to set aside the verdict, not the later-filed written proffer, because the written proffer was absent from the digital record. At no point prior to or after oral argument in the Court of Appeals, or at any time before the mandate was issued, did counsel make any effort to ensure that the appellate record was complete — even though members of the panel pointed out the omission and counsel openly acknowledged it.

Eckard appears content to rely solely on his petition for writ of certiorari. The only legal authority he cites in that petition is Rule 5A:7, which governs the Court of Appeals, and Code § 8.01-673, which generally authorizes writs of certiorari. Eckard’s unspoken assumption appears to be that this court has the authority to issue a writ of certiorari to the trial court and that he has a right to expect that the court grant it in this case. Eckard is correct about the first assumption but incorrect about the second.

If a document was properly filed in the circuit court or legally deemed to be part of the record, both the Court of Appeals and this court have the power to ensure that the document is included in the appellate record. Nothing in the common-law tradition or in the statutory codifications of the writ of certiorari, however, compels a court to issue such writs and certainly nothing requires a court to do so sua sponte. This court will treat the record transmitted to the Court of Appeals as the exclusive record before it.

Merits

The court agrees with the Court of Appeals that the trial court did not abuse its discretion by denying Eckard’s motion to set aside the jury verdict. Under Virginia law, “neither the sole fact of irregularity nor the mere suspicion of injustice based upon the irregularity is sufficient to warrant setting aside a verdict.” Only in truly “exceptional cases” should a Virginia court vacate a jury verdict because of conflict between jurors affecting the deliberative process.

Eckard’s case is unusual but not exceptional. According to his motion to set aside the verdict and the exhibits attached to the motion, a juror made a “vague allegation” to the sheriff’s department claiming that he had voted with the “majority” because of some unspecified, threatening language by another juror. The disgruntled juror also “talked endlessly” about the two-day trial turning into one day and complained that the “jury was forced to stay late in the evening” and that “the judge only gave them one break the entire day.”

The sheriff followed up with the juror by making several telephone calls and hand-delivering a letter asking the juror to either call or meet with the sheriff, but the record does not show that the juror ever responded. Given the paucity of the allegations in Eckard’s motion and attached exhibits, the Court of Appeals correctly held that the trial court did not abuse its discretion by refusing to vacate the jury verdict.

Finally, the trial court apparently concluded that the double-hearsay account of a juror making a vague threat (as alleged in Eckard’s motion and attached exhibits) did not warrant an evidentiary hearing. In his appellate briefs, Eckard’s argument to the contrary relies heavily on the written proffer that was not in the record before the Court of Appeals. As previously discussed, it is not before this court either. The court is thus left with no basis to second-guess the trial court’s decision to forgo an evidentiary hearing.

Affirmed.

Eckard v. Commonwealth, Record No. 230333, Aug. 1, 2024 (Kelsey). VLW 024-6-031. 16 pp.