Virginia Supreme Court (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.

REVERSAL - Dupree v. Commonwealth No. 060216: Justice UNK

If a witness unexpectedly testifies in an adverse manner the party who called that witness can impeach him with prior inconsistent statements. It is not harmless error to deny the party who called the witness this right to impeach.

Molina v. Commonwealth No. 060267: Justice Lemons

When the rape statute refers to mental incapacity it is not refering to permanent incapacity but only incapacity at the moment.

Walker v. Commonwealth No. 060162: Chief Justice Hassell

If a set of facts is presented to the fact finder and the defendant is found not guilty of robbery he is not shielded from an abduction conviction by double jeopardy even if the detention would have been incident to a robbery. There are no double jeopardy concerns when one trial is for both charges.

REVERSING VaApp(en banc) - Bristol v. Commonwealth No. 060263: Justice Keenan

A person is not under arrest when an officer tells him he is; he is under arrest when the officer physically restrains him or he submits to the officer's assertion of authority. Therefore, an officer telling Bristol he was under arrest at the hospital, having Bristol's blood drawn, and then leaving Bristol at the hospital is not an arrest (Bristol did not go into custody until after he was indicted - 2 months later). Since Bristol was not placed under arrest within the statutorily required three hours of driving his certificate of blood analysis (showing BAC) should not have been admitted at trial and the heavy weight given to certificates under Virginia law means that such an error cannot be harmless.

REVERSING VaApp(per curiam) - Gillespie v. Commonwealth No. 060034: Senior Justice Russell

The Commonwealth is only allowed to introduce the defendant's convictions during the sentencing portion of a non-capital jury trial. It may not introduce any information concerning the sentences imposed for prior convictions (except in rebuttal if the defendant raises the prior sentences).

REVERSAL - Morris v. Commonwealth No. 052654: Senior Justice Stephenson

Felony Child Neglect requires that a person must purposefully act or omit an action in a manner so reckless as to foreseeably cause risk of injury or death. When a door is double locked and the 5 year old and 2 year old get outside without supervision anyway while the mother is sleeping so soundly that a police officer has to yell for several minutes to wake her it does not rise to gross recklessness even if the neighbors have had to return the unsupervised children to the house several times on different occaisions. Therefore, it is not child neglect.

Jones v. Commonwealth No. 052533: Justice Agee

Keeping a child in a house where drug dealing is taking place and unsupervised in a room with a bottle of heroin and a plate with cocaine residue is grossly reckless and the Felony Child Neglct conviction is sustained.

Gunn v. Commonwealth No. 052242: Justice Kinser

Proof that a teacher spent her own funds for student activities is not relevant to whether or not she misused or misappropriated a $30 check which should have been paid to the school.

REVERSING VaApp(en banc) - Moore v. Commonwealth No. 052619: Justice Carrico

An officer may not make an arrest unless authorized to do so under Virginia statutes and any evidence found pursuant to an unlawful arrest violates the 4th Amendment and must be excluded.

REVERSAL VaApp(unpunblished opinion) - Workman v. Commonwealth No. 052411: Judge Lemons

Prosecutor opens his file to the defense. Police learn, while investigating a different offense, of hearsay exculpatory evidence which they neither forward to the prosecutor nor investigate. Post trial, the defense learns of the evidence and investigates the evidence turning up at least 3 incidents which would badly impeach the prosecution's main witness. The conviction is reversed because the defense was entitled to rely on the "open file" for all Brady material and could have used the non-disclosed evidence to attack both the investigation of the crime and the prosecution's main witness.

This is a complex decision and good explanation of Brady requirements. It's worth reading in its entirety.

Dimaio v. Commonwealth No. 052556: Chief Justice Hassell

When company officers testified as to the monetary value of stolen computer files and stolen, paper non-compete contracts their claim that the value of each set of items is over $200 proves the monetary requirement for grand larceny and computer fraud.

Next Week: The decisions so far this year.