DISCUSSION OF THE ISSUEAs you might guess, the Court of Appeals was not terribly pleased.
THE COURT ERRED IN DENYING THE DEFENSE MOTION TO STRIKE THE COMMONWEALTH’S CASE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT USED A FIREARM IN THE COMMISSION OF A ROBBERY. ([P]reserved at App. 75-78, 110-112).
Code § 18.2-53.1, in pertinent part, provides that: “It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit . . . robbery.
In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk testified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand.
29 January 2013
Taking the Word "Brief" a Little Too Seriously
This is the shortest brief I have ever seen. It's from Mitchell v. Commonwealth, JUL12, VaApp No. 1400-11-1, and it is the entirety of the actual argument:
Author: Ken Lammers on 1/29/2013