CrimLaw

Significant Published Criminal Decisions in Virginia (March):

Virginia Supreme Court:

Kingsbur v. Commonwealth: Concerning: Felon in Possession of Firearm - This court stated in Armstrong v. Commonwealth that:

Common sense and experience leave no room for doubt that an instrument originally designed, made, and intended to expel a projectile by force of an explosion can lose this characteristic in many ways such that it would no longer be fairly considered a firearm. However, we express no opinion here on the degree of disrepair or alteration that would cause an instrument to no longer qualify as a firearm under Code sec. 18.2-308.2.

However, the prosecution is not required to prove that the weapon has not reached the stage where it is no longer a firearm. The prosecution need only prove that the item "was designed, made, and intended to fire or expel a projectile by means of an explosion." Inoperability because parts are missing just means it is a firearm in need of repair and is still illegal to possess ("the evidence showed that the handgun at issue could not be test fired, did not function, was missing parts, and "came apart" in Kingsbur's hands when he first picked it up").

Commonwealth v. Duncan: Concerning: The meaning of "reckless disregard for human life" in a child neglect statute - The language "does not limit the prohibited conduct to acts and omissions that subject a child to an actual risk of death . . . [t]herefore, we hold that such "reckless disregard" can be shown by conduct that subjects a child to a substantial risk of serious injury, as well as to a risk of death, because exposure to either type of risk can endanger the child's life."

Commonwealth v. Jones: Concerning: Inevitable Discovery - The Court overturns an 18 year old precedent out of the Court of Appeals and rules that in order for inevitable discovery to apply to evidence which is found in an unconstitutional manner there is no requirement that "that the police also prior to the misconduct were actively pursuing [an] alternative line of investigation."

Virginia Court of Appeals:

Sykes v. Commonwealth: Concerns: The presumption of guilt under bad check statutes - The presumption of guilt under Va. Code sec. 18.2-183 applies if the check was written on an account which does not exist and an account does not exist if it was closed when the check was written.

Vester v. Commonwealth: Concerns: Prior convictions which must be proven for a felony DUI - Whether or not Defendant's counsel on his first two DUI convictions was ineffective is irrelevant. He had counsel on his first two convictions and therefore (no matter how incompetent the counsel may have been) a collateral attack on the prior convictions is forbidden.

Bragg v. Commonwealth: Concerns: Single Larceny Doctrine - As treasurer, Defendant wrote 142 checks, embezzling $82,130.40 from December 1999 through January 2002. The prosecution divided this into 5 separate, consecutive time periods and charged 5 embezzlements. The majority holds that the single larceny doctrine does not apply because the "acts" are not contemporaneous and came from separate impulses. ed. note - The dissent pegs the flaws of the majority's decision to the wall for the whole world to see which isn't hard because the appellate courts have not really been rational in their application of this doctrine. They either need to start applying it logically across the board in all criminal matters or they need to get rid of it.

Branch v. Commonwealth: Concerns: Mens Rea in Felon in possession of a firearm cases: A Defendant does not have to know that his prior conviction was a felony in order to be convicted as a felon in possession of a firearm. ed. note - A Defendant not knowing if his prior conviction was a felony happens more often than you would think. A lot of people think that if the "active" sentence is less than a year they were convicted of a misdemeanor.

Reeves v. Virginia: Defendant tries to raise as an issue a violation of Virginia law in that jurors were allowed to self-select for a criminal trial rather than being randomly selected. The facts are too muddled to support the appeal.

Carter v. Commonwealth (en banc): Considering: Does one actually have to be able to harm someone to commit an assault? - One does not have to have the ability to harm anyone in order to be convicted of an assault; one needs only to threaten. ed. note - The result here is skewed because of the eagerness to punish someone for doing something as stupid as the Defendant did (point his finger like a gun at an officer and pretend to shoot; it's a miracle Carter is alive today). The majority gives a sweeping analysis of the law as it has developed over the last couple hundred years. The dissent gives a particularized breakdown of Virginia caselaw and points out that as recently as 2003 (Zimmerman v. Commonwealth) the Virginia Supreme Court has specifically held that an ability to harm is necessary for an assault.

In this jurisdiction, we adhere to the common law definition of assault, there having been no statutory change to the crime. In order to constitute an assault, there must be an attempt with force and violence, to do some bodily hurt to another, whether from wantonness or malice, by means calculated to produce the end if carried into execution; it is any act accompanied with circumstances denoting an intention, coupled with a present ability, to use actual violence against another person.

The majority's decision is clearly wrong.

Jarrett v. Commonwealth: Law enforcement's relationship with a cyber-vigilante including prior requests for his aid in another case, copious amounts of praise for his activities, and encouragement to report anything else he finds does not make the cyber-vigilante a government agent when he engaged in activities which would be clear constitutional violations and forwards all the information - after the fact - to law enforcement. ed. note - This seems to me an extremely close call but the majority seems to have the right of it. However, I have not done extensive research into this matter and it should be noted that apparently the federal court suppressed the evidence after finding agency.