Virginia Court of Appeals 06/08 (part 2)

Washington v. Commonwealth - Subject: Can a Defendant be found guilty of transporting drugs into the Commonwealth when he only picks them up at their destination?

Accepting delivery of an item after it had been delivered through the mail is part of its transportation. When a person accepts a mailed item he is constructively present at its mailing. Therefore, he can be a principal in the second degree of any crime committed in the mailing of the item.

Comment: This seems a stretch to me. If the package had actually been delivered to the Defendant personally at his apartment or place of work I think the Court’s reasoning works. However, this package had been delivered to a private actor (Mail Boxes etc.). At that point it ceased to travel interstate and the pickup by another private actor would be an intrastate activity.

Edmonds v. Commonwealth - Subject: What is necessary to establish that a judge took judicial notice of a matter?

If, in a motion to strike the evidence, the Defense points out that a fact has not been proven and that the judge has not taken judicial notice of it, the judge’s denial of the motion to strike does not establish that the judge has taken judicial notice of the fact.

Of Note: Judge McClanahan impressed the heck out of me by going back and actually looking at the warrants. Her concurrence points out that the scratched out dates on the warrant makes it impossible to determine exactly whether there was notice or not.

Comment: This is just a silly little error which could have easily been corrected. It wasn’t and Greg Sheldon is just too good an attorney for the prosecution to make errors like this and expect to get away with them.


Pearson v. Commonwealth - Subject: Justification for a DUI blood test.

If someone claims to have burped three times, each time restarting the 20 minutes waiting period for the DUI breath test an officer can conclude that the person is physically unable to take the breath test and arrange a blood test.

Emerson v. Commonwealth - Subject: Miranda and your client’s pants

Facts: Emerson is rousted from his sleep and removed from his apartment so that the apartment can be searched. He is standing outside in his skivies so the officer watching him asks him what clothes he would like. Emerson tells the officer he wants the clothes by his bed (you know, the ones with the drugs in them). One officer dumps the stuff out of the pockets and hands the clothes to the officer outside who asks Emerson, “Are these the clothes you wanted?” Emerson answers, “Yes.” The stuff from the pockets is searched and drugs are found.

The Defense argues that the above conversation violates Miranda. The Court concludes that the conversation was not meant to be interrogatory as to a crime and therefore did not violate Miranda.

Comment: Okay, I understand why the Defense would argue something like this but I am not sure why the issue still existed after trial. It was a one room apartment, the only person in it was Emerson, and the clothes were right next to the bed he was sleeping in. That pretty much establishes possession right there (at least in the courts wherein I practice). The prosecution could have just asked the judge to opine whether or not the statement “Yes” was the decisive factor or whether the decision would have been the same even if “Yes” were excluded.