17 April 2004

Virginia Court of Appeals:

Williams v. Commonwealth - Findings: (1) If an officer pulls you over; you have no license, registration, or proof of who owns the car; and the window is broken the officer can impound the car and search it as a "community caretaker" exception (and you all thought the stake was in the heart of that excuse). (2) If the Defendant thanks the officer for not charging him with possession with intent he is guilty of possession with intent.

Walker v. Commonwealth - Findings: (1) If you try to stick something in the pocket of the girl next to you, cram your hand into your pocket, and then the officer has to order you several times to remove your hand the officer has the right to conduct a Terry pat down. (2) Quantity alone is enough to establish intent to distribute.
Comment: Apparently the appellate court was wondering the same thing I was as I read this opinion: "Appellant did not object at trial, and does not argue on appeal, that the seizure of the items violated the "plain feel" standard enunciated in Minnesota v. Dickerson, 508 U.S. 366 (1993), and Murphy v. Commonwealth, 264 Va. 568, 570 S.E.2d 836 (2002). He argues only that the officer lacked reasonable suspicion for the stop and the pat-down search. Therefore, we do not discuss in this opinion whether the officer had probable cause to seize the items."
Wolfe v. Commonwealth - Although the same exact facts would be used to prove both offenses and the DUI offense specifically provides extra punishment for driving drunk with a child in the car (18.2-270.D) it does not foreclose a conviction of felony child abuse.
Comment: While I think the court might be as right as to separate elements meaning that the two charges are not mutually exclusive, the court seems to indicate that 18.2-270(D) is not a crime of its own but merely a penalty enhancement. If you read the section you realize that it provides for independent punishment for a certain set of circumstances. In other words, if the court sentences you to 12 months in jail for a DUI this section sentences you to a separate 5 extra days if you fulfill the elements it punishes; as I understand Apprendi et al. this means that it is a separate offense.
Seaton v. Commonwealth - Findings: (1) Robbery, "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation," does not require that the robbed be in fear but only the robbed be in apprehension of harm or death in order to fulfill the "intimidation" requirement. (2) The trial judge gets to decide what's relevant in trial. (3) Just because an appellate court has said the law is "X" that does not mean you are entitled to an instruction which states "X."
"Virginia courts have often cautioned against lifting the "language of a specific opinion" for a jury instruction given that an appellate opinion "is meant to provide a rationale for a decision - and may not translate immutably into jury instructions." Va. Power v. Dungee, 258 Va. 235, 251, 520 S.E.2d 164, 173 (1999). We discourage the "indiscriminate use of language from appellate opinions in a jury instruction," Blondel v. Hays, 241 Va. 467, 474, 403 S.E.2d 340, 344 (1991), because "statements appearing in opinions of this court, while authority for the propositions set forth, are not necessarily proper language for jury instructions," Oak Knolls Realty v. Thomas, 212 Va. 396, 397, 184 S.E.2d 809, 810 (1971)."
(4) WARNING UBER-TECHNICALITIES - Although a judgement without the judge's signature is not authenticated (17.1-123) that doesn't matter if the clerk signs it before it is entered into evidence in a totally unrelated case as long as it follows 8.01-389. In plain English, a technically invalid order can be used as evidence as long as it signed by a clerk. Technicality counters technicality. In all fairness to the court it leaves open the possibility that if the objection had been to whether there actually was a conviction or whether the orders were authentic - rather than just an objection based upon their certification - it might have considered those facts.

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