(1) The first 30+ minute recess for the prosecutor to get his witness to court actually should have helped my case. The prosecutor had agreed to stipulate that my client bought the firearm and that the clerk who sold it had called the state police to check that he was eligible to buy the firearm. When the trooper we were waiting for showed up he testified about the computer being screwed up. It should have helped me.
The prosecutor focused on the clerk as the "agent" of the government while I pointed to the assurance from the state police as a "body" which was tasked with informing people whether or not they can purchase a firearm. I just cannot seem to get this judge to follow my train of thought. I believe he is acting in good faith (and he's definitely a decent sort off the bench) but I can't get him away from the prosecutors' arguments. He ruled against me. I don't remember him saying exactly why but the reason I can reconstruct would be a reliance on this case (which he mentioned during the argument) which quotes a 7th Circuit case for the proposition that a "private firearms dealer licensed by government [is] not [a] government official." Of course, that's not what I was arguing but somehow I must not have gotten that across.
(2) The Religion Question on Voir Dire: My understanding is that under Witherspoon the prosecution is allowed to ask if jurors cannot impose a certain sentence. The prosecutor wasn't asking that question; of course, the prosecutor in a case with a 5 year mandated sentence is going to hide the consequences of a conviction from the jury. He was asking if anyone would have problems passing judgement because of their religious beliefs. Although I've not researched the matter (because I have not used it on appeal), there are a couple of prosecutors hereabouts who ask it. I object every time and I've yet to hear one iota of authority raised by a prosecutor or judge for that question.
(3) So much for "a court speak[ing] through its orders and [courts] presum[ing] that the orders accurately reflect what transpired." Waterfront Marine Construction Inc. v. North End 49ers Sandbridge Bulkhead Groups A, 468 S.E.2d 894, 251 Va. 417 (1996); McBride v. Commonwealth, 480 S.E.2d 126, 24 Va.App. 30 (1997); Woodfork v. Commonwealth, 31 Va.App. 154, 521 S.E.2d 781 (1999); Legette v. Commonwealth, 33 Va.App. 221, 33 Va.App. 221, 532 S.E.2d 353, 532 S.E.2d 353 (2000); Marttila v. City of Lynchburg, 33 Va.App. 592, 33 Va.App. 592, 535 S.E.2d 693, 535 S.E.2d 693 (2000); Howerton v. Commonwealth, 36 Va.App. 205, 548 S.E.2d 914 (2001); Rose v. Commonwealth, 37 Va.App. 728, 561 S.E.2d 46 (2002); Hudgins v. Commonweath, 40 Va.App. 1, 577 S.E.2d 505 (2003); & Wilson v. Commonwealth, 40 Va.App. 250, 578 S.E.2d 831 (2003). And those are just the published cases.
At the motion to strike the evidence the prosecutor hadn't introduced anything concerning the disposition hearing which resulted in the Disposition Order. Part of the reason that he wanted to make sure he got the "rebuttal" witnesses in is because he wanted testimony to rebut my argument, made both in the opening statement and the motion to strike, that the final order in the case spoke for itself. The fact that the case should have been struck at the end of the prosecutor's case in chief does not matter in Virginia because the appellate courts consider the case in toto. Of course, the best his "rebuttal" witnesses were able to testify to was the lack of changes on paperwork or files which they did not generate because they weren't in court at the disposition. None of that should be dispositive because even a transcript is considered so subject to flaws that it does not over ride the actual order:
It is true that the transcript fails to show that the right of allocution was extended to Stamper personally by the trial court, although it appears that opportunity was afforded him to speak if he so desired. However, the final judgment order entered by the trial court on February 9, 1979, contains this language:There was no introduction of any objection by the prosecution to the Disposition Order so the Order was the final word on the matter.
Whereupon, the Court taking into consideration all of the evidence in the cases, the report of the Probation Officer, the matters brought out on cross-examination of the Probation Officer and such additional facts as were presented by the defendant, and it being demanded of the defendant if anything for himself he had or knew to say why judgment should not be pronounced against him according to law, and nothing being offered or alleged in delay of judgment, it is accordingly the judgment of this Court...
The order, entered without objection, suspended execution of sentence in each case pending action upon appeal and appointed Stamper's trial counsel as his attorneys to represent him in his appeal.
In the absence of objection, we deem the order of the trial court to contain an accurate statement of what transpired. If it contained an incorrect statement of fact, counsel for Stamper had 21 days after its entry on February 9 to have it corrected. Rule1:1. They did not do so, although the transcript was filed on February 15, and we presume that the order, as the final pronouncement on the subject, rather than a transcript that may be flawed by omissions, accurately reflects what transpired.
Stamper v. Commonwealth, 257 S.E.2d 808, 220 Va. 260 (1979).
(4) The most frustrating thing about this case is that even if the Order and other paperwork didn't establish that my client wasn't a felon he sure as heck didn't know he was a felon. In juvenile court the proceeding for felonies and misdemeanors is exactly the same. I guarantee you that kids walk out of that courthouse every week not understanding they've been found guilty of a felony offense.
Of course, that's not a problem for the prosecutors in Virginia because the Court of Appeals has ruled that you don't need to know you're a felon to be convicted of being a felon in possession of a firearm. The only intent needed is the intent to possess a firearm. Branch v. Commonwealth.
AAaarrgggggg!!!! Maybe it's time to go start up a real estate practice.