05 February 2010

OMG, How Long Can a Decision Be?

So, I'm breaking down all the cases from the last month to put them in Virginia Criminal Cases & Law and I think I'm pretty close to the end. I've only got two cases left to figure out and think that it'll probably take a couple hours.

Nope, the only case I got finished (this morning, no less) was Thomas v. Commonwealth. It's a 59 page opinion. 59 pages. It's not even an appeal from a death sentence, so I'm not sure how counsel got enough space to brief all the matters raised. As I took notes, I skipped over the sections where the Justice Lemons basically says "you didn't preserve that error" or "that's just too dumb to address" and I still ended up with this:

Thomas v. Commonwealth, JAN10, VaSC No. 090518: (1) Juvenile adjudications cannot be used as impeachment of general credibility. (2) Pending juvenile proceedings which may tend to show bias or motivation of a prosecution witness must be allowed during cross examination. (3) If a defense attorney seeks juvenile records he must identify bias or motivation to receive them. (4) A principal in the second degree is as culpable as a principal in the first degree. (5) A principal in the second degree need not be present during the actual commission of the crime. (6) A principal in the second degree need only (a) encourage, (b) incite, or (c) aid in the commission of the crime. (7) Presence at the commission of a crime, without disapproving or opposing it, is a factor which jurors may use to help them determine if the defendant was a principal in the second degree. (8) If two people are acting in concert to commit a wrongful act each party is responsible for the acts of the other which were not specifically planned, but which were the incidental probable consequences of the planned wrongful act. (9) When parties are acting in concert they are guilty of the acts of the others even if they did not intend them or anticipate they would occur. (10) Unless there is a specific indicted charge of accessory after the fact neither the prosecution or the defense is entitled to an accessory after the fact instruction because it is not a lesser included offense. (11) Jury instructions can tell the jury that they can infer malice from (a) a deliberate, willful and cruel act against another, or (b) the deliberate use of a deadly weapon. (12) The standard of review for refusing to allow a voir dire question is abuse of discretion. (13) Allowable voir dire questions necessarily disclose or clearly lead to disclosure of (a) relationship, (b) interest, (c) opinion, or (d) prejudice. (14) Voir dire questions which would generate answers which are speculative or irrelevant are too ambiguous and a trial judge does not have to allow them. (15) The standard of review for reviewing a judge's refusal to strike a juror is abuse of discretion. (16) In reviewing the refusal to strike a juror the appellate court will consider the entirety of questions asked to the juror, not just a single question. (17) Neither the prosecution nor the defense is allowed to ask questions in voir dire about the range of punishment which may be imposed if the defendant is convicted. (18) “You may infer that every person intends the natural and probable consequences of his acts.” is well established and oft upheld jury instruction and does not constitute a presumption. (19) Although guilt may be inferred from flight, the phrase “if a person leaves the place where a crime was committed” is overly broad and including it in a jury instruction is a misstatement of the law. (20) If the judicial instruction proffered by the defense has the same error as the one given the defense cannot claim error in the instruction given. (21) To have a private investigator appointed for an indigent defendant, the defense must show a particularized need by establishing that (a) the services of an expert would materially assist him in the preparation of his defense and (b) the denial of such services would result in a fundamentally unfair trial. (22) A particularized need must be more than a hope that favorable evidence will be found. (23) It is not error for a trial judge to allow the word murder to be used in a murder trial. (24) Photographs and videos of a crime scene are admissible to show (a) motive, (b) intent, (c) method, (d) malice, (e) premeditation, and (f) the atrociousness of the crime. (25) Accurate photographs of a crime scene are not rendered inadmissible solely because they are gruesome. (26) Photographs must be excluded if their prejudicial effect substantially outweighs their probative value.


david said...

I'm not a lawyer, but is any of that actually surprising?

Ken Lammers said...

Not terribly. However, in murder cases the defense attorney argues everything he can think of, even if the issue is well settled. He does this just in case there is some change in the law because appellate courts won't, whether on appeal or habeas, listen to an argument which the defense attorney hasn't preserved. Appellate courts have to answer every one of these arguments, even though most are well settled, so that courts higher up don't slap the case back down because an issue wasn't addressed.

You see this most often in capital murder convictions. This case was a little unusual in that it wasn't a capital murder, just a life in prison case. Given the page limits imposed on most briefs, I'm not sure how the defendant got all these issues before the court (well, obviously, he had leave to file an extra-long brief).