Time to See What the Court of Appeals has Been Up To (Oct-Dec06)

As usual, I will not discuss sufficiency of the evidence arguments or arguments which the courts throw out on objection technicalities unless there is something highly unusual. The judge in bold name is the author.

Bean-Brewer v. Commonwealth No. 1614-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

When a Commonwealth certified day care operator contravenes regulations by entrusting the care of young children to her 11 year old daughter and 8 year old son it is gross negligence and therefore her conviction for child negligence is affirmed.

Tynes v. Commonwealth No. 0754-05-1: Judges Kelsey, McClanahan and Senior Judge Willis

In order for the excluded evidence to be considered by the appellate court the lawyer must proffer what he expects it to be and how it admissible and relevant. Also, when a trial judge says “You have your objection on the record. Next question.” he doesn't really mean it and the lawyer should just keep on talking.

And I'm sure the trial judge will be sooooo understanding of why you are ignoring his directive to move on. Just ask Judge Kelsy to write you a get out of jail free card and I'm sure the trial judge will reconsider your contempt conviction.

Wright v. Commonwealth No. 2183-05-3: Chief Judge Felton, Judge Petty and Senior Judge Coleman

If the Virginia Code mandates conditions which are not included in a plea agreement the judge shall impose the conditions in addition to the plea agreement.

Mason v. Commonwealth No. 1466-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

1. Because 18.2-374.1(A) defines "'sexually explicit visual material' as 'a picture, photograph, drawing, sculpture, motion picture film, digital image or similar visual representation' depicting lewd conduct or sexual activity", a charge of possessing juvenile pornography can be brought for every single picture.

2. The appropriate jury instruction for lavascious is, "The word lascivious means a state of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite." The descriptions of lavacious in prior cases are not exhaustive and therefore listing them would not create an accurate jury instruction.

Perry v. Commonwealth No. 2060-05-1: Judges Elder, Frank and Haley

No exclusion of evidence if Virginia law enforcement doesn't follow the knock and announce rule.

REVERSAL - Scott v. Commonwealth No. 2023-05-1: Judges Elder, Frank and Haley

If more than one crime is described in a statute a defendant cannot be charged with one crime and convicted of another. Under 18.2-91 burglary can be either breaking and entering at any time or merely entering at night (both with intent to commit a felony). Defendant cannot be charged with entering at night and convicted by evidence proving he borke and entered during the day. Reversed and indictment dismissed.

This could have been solved by the prosecutor amending the indictment during the trial. I think the prosecutor can just go back and reindict him under the Virginia Supreme Court's interpretation of double jeopardy.

Alston v. Commonwealth No. 0951-05-2: Judges Benton, Clements and Beales

The Virginia statute which requires a judge to add between six months and three years of supervision to a sentence if the judge did not suspend 6 months of the defendant's sentence, 19.2-295.2(A), is not a violation of Apprendi, Booker, et al. because it does not require a finding of fact to increase the sentence beyond that imposed by the jury.

This is a wierd statute. It reads like the General Assembly was trying to impose extra suspended time, but the statute never actually comes out and says that. All it imposes is supervision for a period of time. That being true, the only remedy for violation would be the judge finding the probationer in contempt.

REVERSAL - Eberth v. Prince William County No. 0406-05-4: Judges Elder, Humphreys and Senior Judge Fitzpatrick

Virginia statute allow localities to designate private roads with 100 lots public highways and to ticket cars without inspection stickers operating on them. PWC passed an ordinance designating private roads with 100 or more private lots or residences public highways and another ordinance allowing cars which park on public highways to be ticketed for not having inspection stickers. Both violated the powers granted by the General Assembly and therefore the ticket written for a car parked at an apartment complex is dismissed.

REVERSAL - McLaughlin v. Commonwealth No. 0250-05-3: en banc

The entire court adopts the panel's decision that CD's scattered in a car which are home burned and in slim cases are not sufficient grounds to commence a search.

Yeesh! If that's all it took there plenty of times officers could have searched my vehicle. Before I bought my Creative Zen, I used to have burnt CD's scattered all over my car. And before that there were the years and years of using tapes . . .

REVERSAL - Askew v. Commonwealth No. 1966-05-1: Judges Kelsey, McClanahan and Senior Judge Willis

The trial court does not lose jurisdiction to set bail during an appeal after the defendant notes his appeal or after the 21 day post trial period has passed.

Brooks v. Commonwealth No. 2195-05-1: Judges Elder, Frank and Haley

If a defendant does not notify the court or prosecutor that he wants to examine the expert who prepared a certificate of analysis (as required by Virginia statutes) before trial the defense waives its constitutional right to confront the expert.

McDuffie v. Commonwealth No. 0995-05-1: Judges Elder, Frank and Haley

Property in Wife's name is not co-owned by Husband. Therefore, Husband can be convicted of unauthorized use of Wife's car and destruction of her vehicle. Any property rights he might have in the vehicle do not vest until divorce.

Cost v. Commonwealth No. 2835-05-1: Judges Frank, Kelsey and Beales

If, during a Terry pat down, an officer feels pills in a pocket it is not enough to take the pills out of the pocket. However, the defendant reached for the pocket the pills were in twice and said “You can’t search me, but you can pat me down.” Therefore, the officer reaching into the pocket and seizing the pills (heroin) was valid.

I wouldn't rely on this decision too much until the Virginia Supreme Court has spoken (or refused to speak). It looks to be wrong. Reaching for the pocket is the reason for the Terry pat down; it doesn't justify a more intrusive search. Asserting one's 4th Amendment right doesn't justify an intrusive search either. And the officer even admitted the pills could have been legal drugs.

Villafana v. Commonwealth No. 2258-05-1: Judges Frank, Kelsey and Beales

In Virginia both the judge and jury consider the voluntariness of a confession. If the judge decides a confession is voluntary it is admitted into evidence. The jury considers the voluntariness when determining what weight and/or credibility to assign to the confession. Therefore, an instruction requiring the jury to disregard a confession if it finds certain factors is not valid.

REVERSAL - London v. Commonwealth No. 1224-05-3: Chief Judge Felton, Judge Petty and Senior Judge Coleman

"[W]here appellant continuously insisted that [Retained Attorney] would represent him at trial, where his family had actually retained [Retained Attorney] sixteen days prior to the scheduled trial date, where the trial court was notified by retained counsel of that event four days later, and where no prior continuances had been granted at his request, the trial court abused its discretion in failing to grant appellant’s motion to substitute [Retained Attorney], his retained counsel of choice, as his trial counsel, and in failing to grant him a reasonable continuance to prepare for trial. Code §§ 19.2-159.1(B) and 19.2-162."

And that's it for the last three months of 2006.