06 July 2007

The Rest of the Virginia Supreme Court Decisions

West v. Director, Dept. of Corrections (no. 052263) Justice Keenan

Double Jeopardy, Ineffective Assistance of Counsel

Defendant was convicted of both aggravated involuntary manslaughter and involuntary manslaughter. Defense counsel argued that the prosecution had to "make an election" between the two charges, but never said the magical words "unconstitutional" or "double jeopardy." The trial judge found the defendant guilty of both and sentenced him to 5 years on each, to run concurrent. On direct appeal both the court of appeals and supreme court ruled that the constitutional double jeopardy issue wasn't preserved and upheld the conviction. In this habeas decision the supreme court finds that defense counsel provided ineffective assistance because he didn't argue the constitutional issue and that it is pertinent because the court rejects the "concurrent sentencing doctrine" and the decision will release the defendant from prison on one sentence (if not the second concurrent sentence).

Conley v. Commonwealth (no. 060120) Justice Koontz
Fitzgerald v. Commonwealth (no. 061361) Justice Koontz

Social Worker as Expert Witness, Professional Counselor as Expert Witness

"[L]icensed clinical social workers [and licensed professional counselors] who are authorized to diagnose mental disorders by statute in appropriate circumstances, may render expert testimony regarding such diagnoses. However, it remains incumbent upon the trial court to determine whether a particular licensed clinical social worker has the skill, knowledge, and experience regarding the pertinent subject matter to qualify as an expert."

Farrakhan v. Commonwealth (no. 060252) Justice Lemons

REVERSAL Statutory Interpretation - Definition of Concealed Weapon (18.2-308)

A kitchen knife is primarily a tool and therefore does not qualify as a concealed weapon because the statute prohibits concealment of knives which are only used as weapons and "any weapon of like kind as those enumerated in this subsection." This is a well reasoned discussion of statutory interpretation which comes to the correct, if disturbing conclusion (large kitchen knife was concealed and then used in a robbery).

Shelton v. Commonwealth (no. 060280) Justice Keenan

Preserving Error

In a civil proceeding to put a sexual offender in a mental institution rather than release him at the end of his sentence, a written objection to a specific matter before trial and the signing of the final order as objected to (noting that the "trial court erred in denying [the] motion to dismiss for reasons stated in the motion to dismiss") gave the trial court sufficient notice of the issue and preserved it sufficiently for appeal.

Johnson v. Commonwealth (no. 060363) Justice Keenan, &
Carpitcher v. Commonwealth (no. 060638) Justice Keenan

Writ of Actual Innocence, Recantation by Witness

In order for a writ to be based upon a recantation the recantation must be material. A material recantation is one that is proven true by the inmate by clear and convincing evidence.

Robinsons v. Commonwealth (nos. 060417 & 060426) Justice Lacy

4th Amendment, Police Intent, Entry Onto the Curtilage

A police officer's subjective intent when entering curtilage is not considered; whether there was a valid objective intent is the only factor considered.

An officer entering the curtilage of a property is not limited solely to going straight to the front door and doing a knock and talk; the officer is only limited by what is reasonable under the particular circumstances. The officer pulled his car into the driveway and, before his car passed the sidewalk leading from the driveway to the front door, observed two underage individuals drinking beer. This, coupled with the fact that they yelled "cops" and ran made the officer's movement past the sidewalk to the front door and into the backyard reasonable.

Young v. Commonwealth (no. 060473) Justice Keenan

REVERSAL When Error Requires Only a New Sentencing Hearing, Statutory Interpretation

During the bifurcated jury trial, the Commonwealth caused several items to be seen by the jury during the adjudication phase which were prejudicial. The defense objected and the judge admonished the jury not to pay heed to the items. On appeal the court of appeals found that the introduction was harmless error as to the adjudication phase but not the sentencing phase. The court of appeals ordered the case returned to the trial court for a new jury to be empaneled solely to redo the sentencing phase.

The supreme court finds that the court of appeals has erred because it has rewritten the statute. 19.2-295.1 is unambiguous in its call for remand for a new sentencing hearing "due to an error in the sentencing proceeding" and the court of appeals had rewritten that to mean "due to an error affecting the sentencing proceeding." Under the correct, unambiguous reading of the statute an error in the adjudication hearing requires a new trial.

Ellison v. Commonwealth (no. 060482) Justice Russell

Sexual Predator, Civil Imprisonment Trial, Evidence

In a civil imprisonment trial the Commonwealth can introduce evidence from a charge of which a jury previously found the defendant not guilty.

Commonwealth v. Epps (no. 060607) Justice Lemons

Contempt, Judge Testifying

On an extremely narrow issue the supreme court affirms the court appeal's finding that contempt lies against the court, not the judge. Therefore, a judge did not qualify for the exemption allowing a judge to testify if she is a victim.

Ward v. Commonwealth (no. 060788) Justice Agee

Absolution of Search Warrant Errors by Leon

Even if issuing an anticipatory search warrant based upon an affidavit for "129 South Old Church Street" instead of the address on the package which the police were tracking, "129 Church Street", is error all the errors are absolved by Leon.

McDowell v. Commonwealth (no. 060989) Justice Carrico

Introduction of Evidence, Modern Shopkeep Rule

Under the modern shopkeep rule, as applied in Virginia, as long as the records of an inventory are regularly kept in the course of business there is no need for the person who did the inventory to testify in court.

Commonwealth v. Miller (no. 061015) Justice Keenan

Sexual Predator, Civil Imprisonment Trial, Experts, Statutory Interpretation

The statute is unambiguous that in order to testify in a civil imprisonment trial the mental expert must be "skilled in the diagnosis and treatment of mental abnormalities and disorders associated with sex offenders." Merely having training and qualification to diagnose, without ever treating sex offenders, is not enough.

Justus v. Commonwealth (no. 061218) Justice Koontz

REVERSAL Withdrawal of Guilty Plea Prior to Sentencing, Statutory Interpretation

19.2-296 allows for withdrawal of a guilty plea. After sentencing withdrawal is allowed under a "correct manifest injustice" standard. Therefore, a motion to withdraw a guilty plea prior to sentencing is subject to a lesser standard. In that case "the withdrawal of a plea of guilty should not be denied in any case where it is in the least evident that the ends of justice will be [availed] by permitting not guilty to be pleaded in its place." If there is evidence of a reasonable defense the withdrawal must be allowed.

In a proceeding under 19.2-296 the Commonwealth is not entitled to the presumptions in its favor flowing from the colloquy it would have in a habeas proceeding.

Baldwin v. Commonwealth (no. 061264) Justice Agee

REVERSAL Sufficiency of Evidence, Attempted Murder

When an officer is standing next to the driver's door on a car and the driver turns the car toward him and enters traffic in order to escape it is not sufficient evidence to support an intent to kill.

Grandison v. Commonwealth (no. 061296) Senior Justice Stephenson

REVERSAL Terry Pat Down, Plain View of an Item

A folded dollar bill which an officer sees hanging out of a pocket during a Terry pat down is not constitutionally seizable even if the officer recognizes that the way the bill is folded is in a fashion used to store drugs.

McDonald v. Commonwealth (no. 061456) Justice Lemons

Sodomy, Age of Consent

Sodomy statute is constitutional when applied to cases involving minors.

Robinson v. Commonwealth (no. 061911) Chief Justice Hassell

REVERSAL Rule Of Lenity, Statutory Construction, "Hit and Run" Statute

Virginia's Rule of Lenity:
"A penal statute cannot be extended by implication or construction. It cannot be made to embrace cases not within the letter though within the reason and policy of the law.

"To constitute the offense the [defendant's conduct] must be both within the letter and spirit of the statute defining it. Those who contend that a penalty is imposed must show that the words of the act distinctly cover the case. No conviction can be had if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty.

"If a penal statute be so ambiguous as to leave reasonable doubt of its meaning, it is the duty of the court to refuse to impose the penalty."
Relying on a dictionary definition which has a large number of variant meanings is not appropriate under this standard.

46.2-894 requires that a defendant must be "involved" in an accident. Involved is ambiguous and must be construed under the rule of lenity. As such, its meaning for this statute is "in order for a driver of a vehicle to be involved in an accident within the intendment of the statute, there must be physical contact between the driver's vehicle and another vehicle, person, or object, or the driver of a motor vehicle must have been a proximate cause of an accident."

Side note: "Intendment?" The Chief Justice uses this highly unusual word several times in the decision. Personally, I think the Chief Justice has probably been reading too many pro se motions from inmates. ;-)

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