They can convict me of both charges?!? Blockburger and Garrett

Question: Can I be convicted of crime X and crime Y for the same act?

I get asked this question often. The only things which vary are the crimes represented by X and Y. The answer is almost invariably yes. Unless one charge is a a lesser included of another or there is a statutory exception, if the facts prove the elements of both crimes you can be convicted of both.

Any analysis of this starts with the double jeopardy clause under the 5th Amendment of the U.S. Constitution: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Article I Section 8 (Criminal Prosecutions) of the Virginia Constitution has similar language, "nor be put twice in jeopardy for the same offense."  However it isn't particularly relevant since "the protections against double jeopardy afforded under the United States Constitution are identical with those embodied in Article I, section 8 of Virginia's Constitution." Bennefield v. Commonwealth, 21 VaApp 729 (1996).

The seminal case in this area is Blockburger v. United States, 284 U.S. 299 (1932). Under Blockburger, the test for whether a person can be charged with more than one crime has nothing to do with the fact that they rise from the exact same set of facts. Instead the test "is whether each provision requires proof of a fact which the other does not." In more modern parlance we would state this as "each crime must have one element that the other does not."

An example of this under Virginia law could be grand larceny and larceny third or subsequent. Both require a larceny, but each has an element the other does not. Grand larceny requires that the theft be of an item worth more than $200. Larceny third or subsequent has the obvious requirement that it be a third or subsequent theft.  Thus, if someone tries to steal a TV from GiantMart he can be charged with both grand larceny (if its value >= $200) and larceny third or subsequent (if he has twice previously been convicted of larcenous acts). This is true despite the fact that at core they both have the same crime (larceny). In Commonwealth v. Hudgins, 269 Va. 602 (2005), the Supreme Court of Virginia ruled that after a defendant had been acquitted of robbery he could thereafter be convicted of grand larceny from a person because robbery requires violence or intimidation while grand larceny from a person requires a theft >= $5.  In so ruling, the Virginia High Court overruled a Court of Appeals opinion which stated that the two crimes could not be charged for the same act because both crimes had petit larceny as a lesser included offense.

However, there is one significant exception to Blockburger. If the legislature has shown an intent to allow prosecution under two statutes despite the fact that one is included in another then both can be prosecuted. The case most often sited for this proposition seems to be Garrett v. United States, 471 U.S. 773 (1985). Garrett was a case in which the defendant tried to use conviction on a predicate offense as a shield against a continuing criminal enterprise charge (a RICO analogue for drug dealers) that required predicate convictions as an element. Instead of making a common sense finding that a predicate crime is not a lesser included offense, the opinion wanders about and stumbles over the finish line. In the process, it specifically excludes crimes wherein the entire time the crime is being committed both the greater and lesser included crimes are being committed. However, it does at one point state specifically "the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history."  In other words, "Where the legislature has authorized cumulative punishments, regardless of whether the offenses are the 'same,' the prosecutor may seek and the trial court may impose cumulative punishments in a single trial." Jordan v. Commonwealth, 2 VaApp 520 (1986).

The case in Virginia which seems to cause this to be raised most often is Brown v. Commonwealth, 230 Va. 310 (1985). In this case, the Virginia Supreme Court ruled that the Virginia General Assembly did not intend abduction to be charged in conjunction with other charges that necessarily require some restraint of the victim such as rape and robbery. As you might imagine, this is a strongly disfavored opinion and courts regularly work around it if the victim is moved half an inch unnecessarily or detained for half a second longer than the absolute bare minimum that a crime requires. A more recent application of this was in Tharrington v. Commonwealth, 58 VaApp 704 (2011), in which the Virginia Court of Appeals held that grand larceny and larceny with an intent to sell could both be prosecuted under the same set of facts because the Virginia General Assembly included the words "A violation of this section constitutes a separate and distinct offense" in the larceny with intent to sell statute. Va. Code Sec. 18.2-108.01.

Yes, Virginia, You Can Steal From Your Spouse

Question: Can you steal from your spouse if you are still married?

This question comes up over and over and over again. Although it usually rises in the waning of a marriage as people are fighting over who gets the stuffed penguin they were given as a wedding gift, it also arises surprisingly often at an earlier stage of the marriage (thereafter often leading to the waning days of the marriage). So, I thought I'd try to clarify the issue.

Let's start with the common law that we took from England as we broke free. In common law, it would seem that the woman maintained her ownership of that realty she came into the marriage owning. Otherwise, the right of curtesy makes no sense. Under that right, upon the wife's death the husband took a life estate in property his wife brought into the marriage, but only if there were children born of the marriage.  I'll not delve further into that topic because it is exceedingly rare that real property is the subject of a larceny (hard to carry it away).

As for real property, let's go where every good American jurist goes to get our common law, Blackstone (Book 1 Chapter 15):

By marriage, the husband and wife are one person in law : that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband : under whose wing, protection, and cover, she performs every thing [. . .] Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. [. . . ] If the wife be indebted before marriage, the husband is bound afterwards to pay the debt ; for he has adopted her and her circumstances together.

Nothing too terribly surprising there. Back in the day, the husband had almost all the rights in a marriage and he took possession of every item of personalty his wife brought into the marriage or obtained thereafter. As "one person in law" the requirement that one take the property "of another" would seem to have made it impossible for married people to steal from each other.

However, Virginia changed all that a long time ago:

§ 55-35.  How married women may acquire and dispose of property 
A married woman shall have the right to acquire, hold, use, control and dispose of property as if she were unmarried and such power of use, control and disposition shall apply to all property of a married woman which has been acquired by her since April 4, 1877, or shall be hereafter acquired. Her husband's marital rights shall not entitle him to the possession or use, or to the rents, issues and profits, of such real estate during the coverture; nor shall the property of the wife be subject to the debts or liabilities of the husband.

So, by statutory creation, women and men while married have separate property rights. This all came about as part of the Married Woman's Act of 1876-77 and means women in Virginia have had a statutory right to own personal property while married since at least the passage of the statute. Of course, the converse of that is the fact that men now have separate personal property as well. The "one person in law" barrier was gone and spouses could no longer steal from each other with impunity.

Probably the earliest criminal case in which this may at least indirectly apply is Ambrose v. Commonwealth, 129 Va. 763 (1921). Ambrose was given a car to sell by the wife without the husband/owner's knowledge or permission. Without "one person in law", Ambrose was convicted of larceny. However, Ambrose is not as clean as one might wish. The Court does not mention § 55-35 and bases its reasoning on the fact that Ambrose and wife were eloping. Under the common law that opened up certain rights for the husband. Still, it's an early criminal case wherein the husband and wife clearly did not own the property jointly. If they did the fact that the wife gave it to Ambrose would have protected him from a larceny conviction because it's not larceny if an owner gives it to you willingly.

The case most often cited in this area is Stewart v. Commonwealth, 219 Va. 887 (1979). Stewart took his wife's car before a divorce was granted.  He tried to rely on the common law "one person in law" barrier and the Court shot him down relying on § 55-35. It concluded:

Marriage no longer gives a husband any legal interest in his wife's tangible personal property.. . . The purpose of the Married Woman's Act would be frustrated if a husband could steal with impunity from his wife, and we hold, therefore, that he may be prosecuted as any other thief for the larceny of her property. 

That's about as black and white as it can get. Still, there is confusion. Mostly this comes because everyone thinks of property owned during marriage as "marital property" subject to distribution during a divorce.  This of course, is a civil concept and it is not shared in criminal law. This has been addressed directly in McDuffie v. Commonwealth, 49 Va. App. 170 (2006).

In McDuffie the defendant took a car solely titled to and paid for by his wife without permission and wrecked it. He argued that he could neither be convicted of destroying another's vehicle nor of unauthorized use of another's vehicle. He claimed he had an ownership interest in the vehicle under the equitable distribution provisions of § 20-107.3, a statute laying out how property is distributed in a divorce proceeding. The Court rejects this argument stating: 

Any interest a spouse may have in marital property is an inchoate right that becomes vested only upon entry of a decree of equitable distribution in a divorce proceeding. Because no divorce proceeding was pending and, thus, no decree of equitable distribution had been entered with respect to the relative property interests of appellant and wife, appellant had only an inchoate and unvested interest, if any, in wife's automobile.

That draws the line when any personal property might become marital pretty clearly. Unless there's a decree of equitable distribution giving one spouse an interest in the property of another it does not exist and criminal charges involving the abuse or larceny of the property of another can go forward.

These cases can be everything from burglaries with the house cleaned out by one spouse all the way down to extremely minor thefts such as taking two cassette tapes. Ward v. Commonwealth, APR03, VaApp No. 2799-01-3 (U). Generally, they seem to involve a lot of car thefts. I think this is because the magistrates do not issue many low level warrants in this area, either from confusion over the difference between civil and criminal sides or just because they don't want to encourage every person getting a divorce to run to their office and charge their soon to be ex-spouse with stealing a broom, or hat, or dish towel.

Virginia Deaths by Drugs

I realized that I hadn't looked at the last Medical Examiner's report on drug deaths in Virginia (2011), so I thought I'd do a quick breakdown.

First, the municipalities with the most per capita deaths by drugs.

Now the municipalities with the most per capita deaths by legal drugs.

Now the municipalities with the most per capita deaths by illegal drugs.

DEATHS PER 100,000 BY DRUGS

	Overall		Legal Drugs		Illegal Drugs
1	Dickenson 57.2		Dickenson 44.5		Madison 15.2
2	Tazwell 49.2		Russell 38.3		Danville 9.3
3	Russell 48.7		Tazwell 35.8		Lancaster 8.9
4	Bland 44.0		Bland 29.3		Essex 8.9
5	Buchanan 38.2		Page 29.2		Richmond City 8.3

Tell me again how legalizing and regulating drugs will make things so much better?

And, before anyone starts arguing that this is all about statistical anomalies because of smaller populations, remember that it has been going on for quite a while now (posts from 2010 and 2011 A & B).

This may actually change in the future. Synthetic drugs, such as alpha-PVP (gravel), seem to be cutting into the pills' market share.

Shaming and the "Meh" Factor

Every few years the press discovers  that somewhere in America judges are "shaming" defendants rather than just acting as automatons who hand out the usual sentence:

Though the practice was abandoned in the 1800s, over the last decade judges have been reviving shame-based sentencing in pockets across the country, doling out alternative punishments designed to humiliate the criminal and send a stern message to the public.  Chicago Tribune 2000.

Lately it hasn't been all that unusual either. The Gementera sentence -- taken last month to the Supreme Court -- is one of a growing number of "creative punishments" being handed down across the country by judges who want to use shame or humiliation to deter people from committing further offenses.  Washington Post 2005.

But what's the alternative? In recent years, a number of judges have ordered what amounts to public shaming instead of prison time. Punishments have included shoveling manure, being made to sleep in a dog kennel, or standing on a busy street corner wearing a sign to tell the public of the crime you committed.  NPR 2013.

The news articles almost all follow the same pattern.  They list a series of shaming punishments handed down by various judges.  Then they state how the low born, common hoi polloi love these kinds of punishments.  Finally, a law professor is quoted bemoaning these punishments as inconsistent with normal punishments and therefore violations of the 8th Amendment's prohibition against cruel and unusual punishment.  If they are ever so PC and progressive, sometimes you even hear the words "human rights violations."

Of course, these arguments are spurious.  They make for interesting copy in a slow news cycle and give some few law professors  an issue that they can write papers about and get media attention from, but there's nothing more cruel in these punishments than there is in sending someone to jail.

In theory, sending someone to jail is a shaming punishment. We're all taught five purposes for imprisonment: (1) rehabilitation, (2) disability, (3) teaching the offender not to re-offend, (4) deterring others from offending, and (5) punishment. It's arguable that among these only disability does not involve shaming. The others involve a mixture of actual harm - loss of income, separation from family, inability to go to the local high school football game - with the shame involved from being sent to jail as a sign of societal disapproval. In rehabilitation, teaching an offender not to re-offend, and deterrence of others the shaming is motivational. In punishment only do we find shaming for shaming sake.

Of course, once anything becomes too familiar it loses its shame factor and this has happened with imprisonment.  LawProf does not even consider the shame angle in sending someone to jail because it is the regular way that someone is punished.  And anyone who spends time practicing criminal law quickly comes to realize that for a significant portion of the defendants going to jail is inconvenient or painful (especially when it forces them to go cold turkey), but being locked in jail doesn't shame them any more than they are ashamed to sit at home and watch reality TV night after night.

The same thing would happen if the judge ordered everyone who shoplifted to stand outside the door of the local MegaMart with a placard saying "I'm a thief." At first people would pay a lot of attention to the twenty guys standing outside and most of the offenders would be mortified.  Give it a year or two (probably much sooner) and the public would be ignoring the offenders and most of the offenders would be treating it like an opportunity to stand around and talk to like souls.

So, while shaming may be, and probably is, an excellent motivator for offenders, it must be unusually applied in order to be effective.  Using shaming against someone who has been a repeat offender for the last 25 years is not likely to be effective.  Additionally, using a shaming technique so often that it becomes the expected norm will blunt its effectiveness.  When might shaming work?  First time offenders would seem to be those against whom shaming would have the most affect.  A guy in high school shoplifts? Make him stand in a pink jumpsuit and paper party hat outside the local MegaMart from 10 - 6 Saturday and Sunday handing out pamphlets about how shoplifting harms the community. Will it guarantee that he won't re-offend? No, because nothing can guarantee that.  However, it is bound to have more affect on him and other potential offenders than hiding him in a detention center for the same weekend would.  And the shaming punishments should not be the same every time.  One time it should be the pink jumpsuit at MegaMart.  Another time it should be sitting on a bench in front of the courthouse with a sign saying "I am a THIEF" from 9-5 on a day court is in session. A third time an offender should be required to write a single page apology for driving under the influence and walk door to door handing it to whomever answers the door. etc. Varying the punishment keeps it from becoming usual and ineffective.

Will people scream bloody murder about these punishments? Of course they will.  And why will they scream bloody murder? Because they will notice the punishments and if a punishment is noticed it must be cruel because it actually affects people. Which, of course, is the point of any punishment - to affect people.  They are uncomfortable with these punishments because they notice them and that uncomfort must mean the punishment is wrong.  Better to just lock people in jail where everyone can forget about them.

Detainers - Inside and Outside the Interstate Agreement

Some of you out there are lucky enough that you are safely ensconced in the center of a State and you never have to deal with the Interstate Agreement on Detainers. Unfortunately, we around here are not so lucky. With three other States in shouting distance, it's not too surprising when someone gets caught in the other State first and we have to wait our turn.  A detainer goes out to whichever prison that State has lodged the person in and then the games begin.

Every single prisoner out there seems to know the magic number 180. They hear from the guy in the cell next door, or a helpful counselor, or Uncle Bob (the family legal expert who's been to prison three times) that if they just notify Virginia that they want their trial then Virginia must come get them and try the case within 180 days or it goes away forever. They may get a lot of details about how everything works garbled, but they always remember that 180 days - and they constantly tell their attorney about it once they are shipped to Virginia.

So, what are the actual rules? Is the 180 day limit a rock solid, irrefutable speedy trial rule??

Of course not. Nothing's ever that simple in the law.

§ 53.1-210 is the statute in Virginia which contains the Agreement on Detainers. In Kentucky it's 440.450.  In Tennessee it's 40-31-101.  In West Virginia it's §62-14-1.  In North Carolina it's § 15A-761.  In Maryland it's § 8-405 (and the statutes around it).  That should cover most of the ones an attorney from Virginia should need. If you need  the version from Wyoming or Alaska you are on your own.

There are two events which actuate this interstate compact. First, Virginia must have lodged a detainer against someone serving a sentence in another State. The warden of the institution where the defendant is being held is required to notify the defendant that a detainer has been lodged against him. Second, the person must "cause" both the prosecutor and the court in the jurisdiction which issued the detainer to get a letter stating he wants to exercise his rights under the compact.

The mistake a lot of prisoners seem to make at this point is to send a letter themselves directly to the prosecutor and/or the trial court. Often, they even fail to send both letters. However, that error is not the primary reason that their effort fails.  It usually fails because of continuances once they are in Virgnia.

How the Interstate Agreement is Triggered

Under Article IV, the prisoner must write a letter, informing its recipients of her place of imprisonment and requesting a final disposition of the charges involved in the detainer. She then has to give it to the warden, who will then send it to the courts and prosecutors in all the jurisdictions from that particular State which have issued detainers. The warden also has to send a certificate stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner. Once all this arrives at the office of the prosecutor and the court the prisoner has caused it to be delivered.

Causing the letter to be delivered operates as a waiver of the prisoner's extradition rights and as an agreement that the prisoner will agree to serve any time given by the Virginia after she finishes serving her time in the original sentencing State.

Virginia also has the option to ask the original State for temporary custody of the prisoner. If this is done there is a delay of 30 days within which the governor of the original State may deny Virginia temporary custody either on the governor's own motion or the motion of the prisoner herself. Art IV.

What Causes Dismissals With Prejudice

After that, the prisoner is shipped to Virginia to face trial in the Commonwealth. There are two timelines within which the prisoner must be tried. The first is the 180 day timeline. This timeline starts from the moment the court and prosecutor receive the letter stating the defendant wants to be brought to Virginia for trial.  The second timeline is 120 days.¹  This timeline starts from the day the prisoner is brought to Virginia by request of the Commonwealth without the prisoner so requesting.  Both of these timelines can be extended by continuances not objected to by the defendant.  However, if either timeline is reached the charges must be dismissed with prejudice.   Art. V(c).  The defendant has an affirmative duty to prove the court and prosecutor received the letters and appropriate certificates from the warden of the prisoner's original State more than 180 days prior.    See Eckard v. Commonwealth, 20 Va. App. 619 (1995).  If the sending State did not send the appropriate certifications with the letter the 180 limit is not held against Virginia. Id.

There's also an anti-shuttling provision in the compact. If a defendant is delivered to Virginia to face trial all of the charges which led to the detainer must be dealt with before the prisoner is shipped back to the original State. If they are not they are dismissed with prejudice. Art. III(d) and Art. IV(e).

Exceptions

There's one major limitation to this compact. It only applies to indictments, informations, and complaints.  For this compact to apply the case must be procedurally ready for trial upon the charging instrument linked to the detainer.  If there are procedures which are required other than trial - preliminary hearing, grand jury - then the Interstate Agreement on Detainers does not apply. In other words, if the detainer is based on a warrant neither the timelines nor the anti-shuttling provisions apply. See Locklear v. Commonwealth, 7 Va. App. 659 (1989), and Smith v. Commonwealth (U), DEC10, VaApp No. 2170-09-2.  Additionally, this compact does not apply to probation violations. Commonwealth v. Brown, 85 Va. Cir. 159 (2012); See Also Bolden v. Murray, 841 F. Supp. 742 (1975)(applying the same rule to the parole system probation supplanted). And it does not apply to a capias. Chu v. Commonwealth, 61 Va. Cir. 338 (2003)(court refers to capias as "bench warrant").

In other words, if a detainer is issued on a warrant, capias, or probation violation the prisoner can file all the letters he wants, but the compact does not apply and he cannot be shifted from the other State to Virginia under the Agreement. If he is shipped to Virginia anyway it is an extradition outside the compact and none of its protections apply. Instead the Commonwealth would be subject to the regular speedy trial constraints and nothing further.  This leads to an interesting question.  If the prisoner is in a jail in Virginia, but not under the terms of the compact, what authority allows the prisoner to be shipped back to the originating jurisdiction?

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¹ The 180 day limit is under Article III and the 120 day limit is under Article IV. Although Article IV read initially to me like the way Virginia is supposed to get the prisoner from the State currently holding him, Article V speaks of bringing someone to Virginia under either III or IV and case law indicates that III is from a prisoner's request while IV is from Virginia's request.  See Yiaadey v. Commonwealth, 29 Va. App. 534 (1999).

Private Prosecutors

I must admit, before I became a prosecutor I had never heard of citizens hiring private prosecutors. I don't know if it was happening in any of the jurisdictions wherein I practiced as a defense attorney (I never saw it), but it is something our office bumps into every so often. It seems to be something that citizens want to do with misdemeanors more than felonies and I suspect this is the result of two factors: (1) the fact that citizens can file a misdemeanor complaint to the magistrate themselves and therefore are more vested in any warrant which is issued, and (2) the fact that hiring a private attorney to prosecute any kind of serious felony case would be prohibitively expensive.  In any event, until recently I had a bone deep belief that private prosecutors were not allowed for by the Virginia State Code and therefore a citizen could not hire her own. However, it seems I was semi-wrong.

The big case in this area is Cantrell v. Commonwealth, 229 Va. 387 (1985).  This case deals with the issue extensively and lays out a number of rules regarding the involvement of a private prosecutor.  Since it is so extensive, I am going to break it down the way I do most cases for my private notes:

Cantrell v. Commonwealth, 229 Va. 387 (1985):  (1) Whether a private prosecutor can appear is at the trial court's discretion.  (2) A private prosecutor “is absolutely prohibited from (a) taking any position, (b) making any argument, (c) offering any evidence, or (d) advocating any cause which would be forbidden to a public prosecutor.”  (3) A private prosecutor cannot (a) initiate a prosecution or (b) appear before a grand jury.  (4) The private prosecutor can take part in the case only with the approval of both (a) the trial judge, and (b) the Commonwealth Attorney.  (5) The private prosecutor cannot make the closing argument without the approval of the trial court.  (6) The private prosecutor cannot (a) take part in a decision to engage in plea bargaining, (b) deciding the terms of a plea bargain, or (c) a decision (i) to accept a plea of guilty to a lesser crime or (ii) to enter a nolle prosequi.  (7) The Commonwealth Attorney must remain in control of the case, although there is no specific limit as to how much work the private prosecutor can do.  (8) A private prosecutor representing someone with a civil interest in the same circumstance (a) violates Due Process under the Virginia Constitution and (b) requires no showing of prejudice on the defendant's part for reversal of a conviction.  

There are also several cases which address a bit of the issue.  The oldest I found is Compton v. Commonwealth, 163 Va. 999 (1934), in which the Virginia Supreme Court overturned a conviction because the Clerk of Court and High Sheriff, as private citizens, hired a private prosecutor and therefore tainted the case.  A few years later, in Commonwealth v. Duling, 79 Va. Cir. 764 (1934), a Virginia Circuit Court laid out the rule that the only way a private prosecutor can participate is with the Commonwealth Attorney's agreement.  Of course, this is a non-binding opinion, but it is well reasoned, persuasive, and its position was adopted in Cantrell. In more modern times, in Adkins v. Commonwealth, 26 Va. App. 14 (1997), the Court of Appeals overturned a conviction because an attorney who has been previously hired as a private prosecutor cannot subsequently be appointed as the special (governmental) prosecutor when the Commonwealth Attorney develops a conflict – even if the attorney stops taking money from his clients once appointed special prosecutor.  Finally, in Riner v. Commonwealth, 268 Va. 296 (2004), the Virginia Supreme Court held that it was within the trial court's discretion as to whether a conflict existed which would disqualify the private prosecutor (the trial court decided that the private prosecutor did not represent a civil interest against the defendant which would automatically disqualify the private prosecutor).

So, basically, if doubly approved by the judge and the public prosecutor, the hired gun prosecutor can take part in the case as long as he is under the control of the Commonwealth Attorney and has no civil case conflict. In particular, I think the civil case conflict rule is important, although it doesn't entirely eliminate the private prosecutor's monetary inducement to seek a conviction. After all, the party paying for the private prosecutor is paying him to be biased. However, the opinions seem to say that this was okay in Jolly Olde England, so it's okay in Virginia until the General Assembly says it ain't.

The only rule above that I don't think makes much sense is the prohibition against the private attorney making the closing argument unless the trial court approves – effectively creating a presumption that the public prosecutor should do the closing argument.  Since the private prosecutor is forbidden from arguing anything which a public prosecutor could not, I don't understand why there is an extra protection added to this specific aspect of the trial.  It would make more sense if the public prosecutor was required to make to both the opening statement and closing argument, as a demonstration that he was in control of the case. In fact, since the public prosecutor must stay in control of the case it would make much more sense if the presumption was that the public prosecutor is required to make the opening statement and thus demonstrate his control by laying out the evidence that will be presented. I suspect this is just one of those stray rulings that just keeps getting quoted and relied upon over and over again without any thought put into it.

Jury Nullification

A pretty good explanation:

As anyone who has read this blawg for longer than two weeks knows, I am not one of those that thinks the application of the jurors' prejudices to a case is the universal panacea that others believe.

Who Pays the Piper? The Complaining Witness?

§ 19.2-229. When complaining witness required to give security for costs.

For good cause the court may require a complaining witness to give security for the costs and if he fails to do so dismiss the prosecution at his costs.

I tripped across this statute years back and I've always wondered how it was meant to be applied. I looked on Lexis and did not find any annotations and I've never seen a court apply this, so my curiosity was never really satisfied.

Today, while I was researching something else, I finally ran across something that helps explain the statute. Pifer v. Commonwealth, 14 Gratt. 710 (1858) is a Virginia Supreme Court case which has a monograph attached to it explaining who should have to pay what costs. It lays out several cases which put the costs squarely at the feet of the complaining witness if the complaining witness took the charges out herself rather than being required to testify.

A volunteer informer ought to be made a prosecutor, and liable for costs in case of failure; but one who is compelled to be an informer, cannot be considered a prosecutor. Wortham v. Com., 5 Rand. 669; Com. v. Dove, 2 Va. Cas. 29.

And on a trial for a misdemeanor, if the jury find for the defendant, the voluntary informer is liable for the costs, and after verdict the prosecutor cannot show by parol evidence that he was called on by the grand jury, and did not voluntarily give the information.  Com. v. Dove, 2 Va. Cas. 29.

[T]he prosecutor's insolvency or inability to pay costs is, ordinarily, good cause for ruling him to find security for such payment; but if, in the opinion of the court, public justice requires that the prosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor be insolvent, and security for costs be not given.  Com. v. Hill, 9 Leigh 601.

On an indictment for an assault and battery on the voluntary information of the person assaulted, the informer and prosecutor, being the only witness for the prosecution, is a competent witness, though liable for costs in case defendant is acquitted.  Gilliam v. Commonwealth, 4 Leigh 688.

Of course, these cases aren't operating off of the modern day statute. Although not directly interpreting it, I think they are operating off of this statute (from my copy of the 1884 statute book):

Part 6, supra, is still in the Virginia Code as § 19.2-331 and I think the vast majority of cases in which this applies - and applied - are misdemeanors. There is no reason to think this case law does not apply to the current statute.

Why is this important? Because in Virginia everyone can go and fill out their own complaint and present it to a magistrate, without the participation of a Commonwealth Attorney or police officer. I assume, without having done the research, that some similar process existed back in the 1800's.

When a citizen goes to the magistrate on her own, presenting a complaint and asking for a warrant, that citizen is a "volunteer informer." As well, presenting a complaint also makes her the very epitome of a "complaining witness."  Furthermore, in the absence of a prosecuting attorney, § 19.2-265.5 seems to make it clear that the complaining witness fills that slot.

I can't find anything in the modern statutes which relieves a volunteer informer / complaining witness of her duty to pay for the prosecution if she loses her case.  If she went voluntarily to the entity (magistrate or grand jury) which issued the warrant or indictment, she is on the hook.  All § 19.2-229 does is allow the judge to require the complaining witness to put the money up ahead of time and if that witness either cannot or refuses to do so dismiss the case and bill the complaining witness for the costs.

In my personal opinion, the "good cause shown" part of the statute limits the class of those whom the judge can apply this statute against. Good cause would probably be the fact that someone is a frequent abuser of the system, filing charges often and then dropping them. This could the person who - at least thrice a year - gets in drunk fights, runs to the magistrate to charge everybody the next day, and then wants to drop it when it goes to court a month later. This could be the merchant who swears out bad check warrants, knowing full well that his employee turnover rate is so great there is no way he can prove 75% of them. Most helpfully, it could be used on counter warrants. These happen when someone charged with an offense herself runs to the magistrate and takes out warrants against those who are witnesses against her in order to muddy the waters.

Still, the amount of proactivity required in order to do this would be prohibitive in almost all cases. Someone would have to search through all the charging papers and cull those which fell afoul of the standards set. On top of that, the judge almost never sees the complaining witness until they show up for trial and therefore could only take the allowed statutory action in the seconds before the trial was set to commence. The only possible working framework I can see for this is if the judge issued a writ of mandamus, requiring a particularly troublesome abuser of the system from coming to court unless she had fulfilled the conditions of § 19.2-229.

Hudgins and the Various Felony Larcenies

I was wondering about the double jeopardy parameters of the various felony larceny offenses today, so I did a little research and tripped across the Hudgins decision. The answer is, all felony larcenies can be charged side by side if they apply to the same act.

Let's work through an example of this. An inveterate thief in Pitcairn County steals a Rhodesian Ridgeback puppy worth $1,000.  There are three possible charges here. Under 18.2-95 (grand larceny), stealing something worth more than $200 is a felony punishable by up to 20 years in prison. Under 18.2-104 (subsequent larceny), a third or subsequent larcenous offense is a felony punishable by up to five years in prison. Finally, under 18.2-97, stealing any dog is a felony punishable by up to ten years in prison.

Typically, the thief will just get charged with grand larceny. However, under the Hudgins decision, although they all arise out of the same act and each have the same included lesser crime (petit larceny), the thief can be charged with each crime because each has a separate element. 18.2-95 has a value element. 18.2-104 has a multiple priors element. 18.2-97 has a dog element.

Real world applications of this are interesting.  In a great number of cases wherein the defendant is charged with grand larceny he could also be charged with subsequent larceny. However, once the value of the stolen item is established as at least $200 everyone just defaults to grand larceny. Grand larceny carries the greater punishment. It also has a greater effect on the sentencing guidelines - especially if the defendant has enough of a criminal history or has currently committed enough offenses to bypass worksheet B and go to worksheet C. This means that as a binary decision - requiring a choice of either grand larceny or subsequent larceny - there is an advantage to charging grand larceny.

Also, in a binary decision, the only real advantage to charging subsequent larceny is one at trial. In Virginia, the courts have a clear line of precedent which does not allow the defendant to stipulate that predicate convictions have occurred. Therefore, in trial the Commonwealth can introduce all of the defendant's prior larcenous convictions in order to prove the element of prior convictions. Yet, since most larcenies are pretty cut and dried and don't actually go to trial, faced with a binary choice law enforcement and prosecutors would not choose subsequent larceny.

But, it's not a binary decision. When charged at the same time the prosecution gains the advantage of both the greater punishment and guidelines for grand larceny as well as the trial advantages of subsequent larcenies. I'm not sure why we don't see more of this. Perhaps there is a continuing pre-Hudgins perception that since both contain the lesser offense of petit larceny that they cannot be charged contemporaneously without violating double jeopardy.

Cleverness - Holland v. Commonwealth & § 19.2-303

Under Virginia Code § 19.2-303 a Virginia trial court maintains jurisdiction to suspend all or part of a felony sentence as long as the individual has not been transferred to the Virginia Department of Corrections:

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

Holland was in federal custody on November 2. On that date, without presenting evidence, he got the trial judge to suspend his sentence pending a hearing to determine whether his active sentence in Virginia should be suspended. On November 3 Holland was transferred to the Virginia Department of Corrections. In a subsequent hearing the trial judge declined to reduce Holland's sentence and imposed the 18 months he had suspended in the previous order.

Holland presented the Court of Appeals with a clever argument. On November 2 the trial court had jurisdiction. On November 3 the trial court did not have jurisdiction. Therefore, the trial court could not change its November 2 order and the suspension of the sentence must stand.

Now, that is a creative and novel way of looking at the statute. It turns the purpose of the statute on its ear and has the advantage of being correct. The judge had no jurisdiction to act on Holland's sentence after November 3. Even the appellate court rules that the judge had no power to do so and therefore any orders from the trial court after November 3 are void ab initio.

Unfortunately for Holland his three judge panel on the Court of Appeals included Judge Robert J. Humphreys, perhaps the most consistently clever of Virginia's appellate judges. Judge Humphreys doesn't stop after declaring the post-November 3 trial court orders void ab initio. He then goes on to examine the November 2 order.

Looking at the plain language of the statute, Judge Humphreys declares, "In addition to permitting the exercise of jurisdiction over a defendant who has not yet been transferred to the custody of the DOC, Code § 19.2–303 clearly requires that before a sentence may actually be suspended or modified, the circuit court also find (1) that suspending or modifying the unserved portion of the sentence would be compatible with the public interest, and (2) that there are circumstances in mitigation of the offense." He then points out that there was no evidentiary hearing and therefore, the judge could not have made either of these findings.

Holland doesn't give up. He apparently argues that his motion carried evidence in it, but Judge Humphreys shoots that down, quoting case law that states a motion is just allegations. Then Holland tries to argue that the trial court implicitly made those findings when it entered an order suspended the sentence on November 2. However, Judge Humphreys shuts that down - pointing out that the trial court had scheduled a hearing to take evidence and thus there was no implicit findings because there was no final ruling. Judge Humphreys concludes that the transfer of Holland to the DOC rendered the November 2 ruling voided by operation of law.

Clever argument and clever ruling. I wish more opinions were as interesting as this one.

My breakdown of the opinion:

§ 19.2-303 - Suspension of Individual's Sentence

Holland v. Commonwealth, OCT13, VaApp No. 0965-12-3: (1) Per the statute, the trial judge loses jurisdiction to suspend any part of the sentence once the individual has been transferred to DOC. (2) Once an individual has been transferred from federal custody to Virginia DOC the trial judge loses jurisdiction to suspend the Virginia sentence. (3) Any order purporting to suspend an individual's sentence after the defendant has been transferred to DOC is void ab initio. (4) Before suspending part of a previously imposed sentence under the statute the trial judge must find (a) that suspending or modifying the unserved portion of the sentence would be compatible with the public interest, and (2) that there are circumstances in mitigation of the offense. (5) When a trial court suspends the imposition of a sentence pending a 19.2-303 hearing has not implicitly found the two conditions needed to suspend the sentence. (6) Once an individual has been transferred to DOC an order suspending imposition of his sentence pending a 19.2-303 hearing is void.

Friday Fun : Sustainable Kidnapping

The Virginia Supreme Court Sees Starrs

Last Friday, in Starrs v. Commonwealth, the Virginia Supreme Court yet again affirmed that trial courts have the ability to take cases under advisement on their own initiative.

In Starrs, the defendant pled guilty and the trial court found evidence sufficient to convict. The defendant then asked the judge to take the case under advisement for two years and dismiss the case after that two years (assuming no further trouble). The trial court found that while it could continue the case for two years it had no power to dismiss after that two year period. The Virginia Court of Appeals upheld the trial judge, ruling that once facts sufficient for a conviction have been found a trial judge must convict the defendant of the charged offense. Then the case went to the Supreme Court.

The Supreme Court, via Chief Justice Kinser, ruled that facts having been found sufficient for conviction is not the same as judgment. While it is primarily discussing the fact that a defendant's acquiescence via a guilty plea is not judgment, the opinion also specifically states that the finding of guilt by a jury is still subject to judgment from the trial judge. Specifically, the Supreme Court finds that after entering in the record that the defendant has pled guilty a trial court retains "the inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction."

There are two interesting points to the Supreme Court's decision. The first is that the Court bypassed all the common law and statutory arguments and rooted this decision in Virginia's Constitution and the courts' inherent powers to judge under the constitution. Once a trial court has entered a judgment of guilt it must follow the laws passed by the General Assembly in sentencing the defendant. However, prior to actual judgment the judge has discretion as to how to decide a case - even if the defendant has admitted guilt.

Admittedly, that's even beyond what I had argued for. I had argued that advisement was a common law procedure which had not been abrogated by the General Assembly. The Supreme Court's ruling is that advisement is a constitutionally grounded inherent ability of trial judges. Unless I mistake my reading, that puts it beyond the ability of the General Assembly to reach via statutes. Mind you, judges are still subject to appointment and reappointment by the General Assembly, so they are still required to prove to the members of the General Assembly that they can be trusted with this power. Nevertheless, the power seems to be out of the direct reach of the legislature.

The second point is that the decision doesn't lock things down entirely. Because this particular case is based upon a guilty plea it leaves open argument that it does not apply in other situations. However, while I am sure the argument will be made, it strikes me as spurious. To begin with, the Supreme Court does note that a judge must render judgment even after a jury has rendered a verdict, although it is not a part of the opinion vital to the decision. Logically, if the judgment isn't rendered until the judge renders it, the manner in which facts are found is not relevant as to the judge's actual inherent power in rendering the judgment.

Conclusion: Having argued for a long time that advisement exists as a common law practice, this decision leaves me a little ambiguous.Where does this leave the statutes which the General Assembly has already passed regulating the use of advisement in particular cases such as misdemeanor property offenses, domestic assault and battery, and drug possession? By definition, these statutes relate to punishment and can only go into effect after the judge finds a defendant guilty. Prior to a finding of guilt the trial judge has the inherent power to take the case under advisement under terms and conditions of his own. This would seem to make the statutes at best a "sense of the General Assembly" or second chance statutes. If the judge refuses to take a case under advisement, the defendant gets a second chance at a deferment of his sentence and possible dismissal of his charge via the direction of the General Assembly.  At worst, this ruling may make these statutes an unconstitutional infringement of the legislature on the courts' inherent constitutional power. This last seems unlikely and my personal opinion is that the courts will basically follow¹ the statutes in those places where the General Assembly has laid out how it believes advisement should occur.

We may not have seen the end of litigation concerning this issue, but this case looks like the death knell for arguments against advisement. Short of a change to the Virginia constitution, neither the Court of Appeals nor the General Assembly can directly strip this power from the trial courts. However, I suspect this decision will make the interviews which judges go through before they are (re)appointed by the General Assembly much more interesting.


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^1.  I say "basically follow" because I have seen so many courtrooms misapply these statutes over the years. They know the statutes are there and they think they are getting it right, but the court has somehow - usually with the best of intentions - fallen into doing things in a manner not authorized by the statute

Advisement Lives!

In one fell swoop, Chief Justice Kinser has swept away all the bad law which has come out of the Virginia Court of Appeals concerning the taking of a case under advisement. This doesn't mean the fight is completely over. Certain quarters will continue to press for the General Assembly to eliminate advisement and there is still some room to argue when exactly the Supreme Court has agreed that advisement exists and what exactly a trial judge can do after he has taken a case under advisement.

Case: Starrs v. Commonwealth, JAN14, VaSC No. 122028

The background: Taking a case under advisement has been around for a long time in Virginia jurisprudence. However, it was a judicial practice, neither specifically approved nor disapproved by any law which has passed the General Assembly. It is the practice of a judge taking evidence, but not immediately finding guilt and imposing a sentence. Instead, the judge sets the case aside for a period of time, sometimes requiring the defendant to just keep the peace and other times requiring some act from the defendant. After the period of time has passed, the judge - if everything went as he required during the set aside time - reduces the charge to a lesser offense, gives a lesser sentence than would otherwise have been given, or dismisses the charge.  Usually, the judge does this with the agreement of both parties. Nevertheless, it is something the judge can do himself, without either party's acquiescence.

Whether the solely judicial advisement process is a good thing or a bad thing probably depends on your perspective and the facts of the particular cases to which it is applied. Personally, I think it is an equitable release valve which allows a judge to bring some sanity to situations wherein a young prosecutor might be a little too eager to crucify every jaywalker or situations wherein public opinion is such that elected officials might be forced into taking an overly-draconian stance. Of course, this can also lead to a great amount of frustration or out and out acrimony as a prosecutor proves his case, but sees his entire purpose in prosecuting the case frustrated by a judge who basically says, "Yes, he's guilty, but I shall not find him so because . . ."

The first arguments I heard against advisement seemed to appear about ten years back. A small, but vocal, group started claiming that because the General Assembly had passed laws specifying how advisement could be applied in particular situations advisement was not authorized in any others. It was a weak argument¹ and pretty clearly a minority position, but where it gained resonance it found true believers. One of those places was the Virginia Court of Appeals.

This is the third time the Virginia Supreme Court has bounced attempts to get advisement declared illegal. First, back in 2008, came Moreau, which came directly to the Supreme Court from a circuit court and shot down a writ of mandamus requiring a judge to not use advisement, but to find guilt and sentence immediately. Next came Hernandez, in which the court specifically found a trial court could take a case under advisement, but left open-ended what the judge could do at the end of the advisement.

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Hernandezv. Commonwealth, JAN11, VaSC No. 092524:  (1) Until the court enters a written order finding the defendant guilty of a crime, the court has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date. (2) Once a judge has found someone guilty of a crime the punishment must be as laid out by the General Assembly. (3) A judge's statement that there is enough evidence to support a conviction is not a finding of guilt. (3) The VaSC makes no finding as to whether a case can be deferred/continued/taken under advisement with a promise of a particular disposition at a later date.

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Then Court of Appeals came back with Taylor and Starrs.

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Taylor v. Commonwealth, JUN11, VaApp No.2236-09-1: Upon a finding of facts sufficient for guilt, a trial judge does not have the power to reduce a conviction to a lesser offense or to dismiss it.

Starrs v. Commonwealth, OCT12, VaApp No. 2516-11-4: After a finding of facts sufficient to find guilt, a judge cannot take a case under advisement for a period of time and dismiss the case upon completion of terms (unless a statute states she can).

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You may recall that I vociferously decried Taylor.²  However, for whatever reason, the Supreme Court did not address Taylor and by the time Starrs came out of the Court of Appeals I was convinced that advisement was gone and didn't even mutter much under my breath. After all, if the Supreme Court didn't bounce Taylor, which had all sorts of hooks which could have allowed it to be trashed, why would it go after Starrs, which basically said "we already decided this issue in Taylor."

And then the Supreme Court heard Starrs and proved that I am terrible at precognition in the matters of appellate courts.

TOMORROW: Starrs as Seen by the Virginia Supreme Court
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^1. It was a corrupt form of inclusio unius est exculsio alterius. The argument was that the General Assembly by passing these statutes had excluded any other use of advisement. This argument fails on two levels. First, this doctrine of textual interpretation requires a list and there is no list stating that "Cases may be taken under advisement in the following situations . . ." The second is that it violates the rule of interpretation that requires statutes to be interpreted in harmony with existing common law unless the common law is clearly expurgated by a statutory law.


^2. Virginia Court of Appeals Invalidates 221 Years of Common Law
    Advisement: Let's Look at the Court of Appeals Rationale: VIRGINIA CONSTITUTION
    Advisement: Let's Look at the Court of Appeals' Rationale: STATUTORY
    Advisement: Theory Behind It 

Check the Address

So, what arrives in the mail today?

Yep, that's an invitation to join the National Association of Criminal Defense Lawyers attached to their magazine. Now, once upon a time I was a member, but for some reason my membership lapsed seven or so years ago. You'd think they might have gotten a clue as to why if they'd looked at the address they sent the invitation to.

Furtive Ninja

Guy breaks into a house in the middle of the night, breaking a rear window to do so. He then claims that the entry was not furtive because the owner heard him breaking in. The Virginia Court of Appeals ain't buying it:

An entry need not be accomplished with ninja-like stealth to be furtive.

Calloway v. Commonwealth, AUG13, VaApp No. 0387-12-3

Unforeseeable? Why Use an Unusable Standard?

I was doing some research today when I ran across Metrish v. Lancaster, a US Supreme Court case which was primarily an AEDPA decision, but which had an interesting discussion on the retroactive application of judicially made changes to laws. We all know that laws passed by legislatures cannot be applied ex post facto. However, the courts have largely exempted themselves from this constitutional requirement, although still subjecting their changes to a far less stringent due process standard. Here is my breakdown of that part of Metrish.

Metrish v. Lancaster, MAY13, USSC No. 12-547: (1) If a law is judicially changed in an unforseeable manner after the date of the offense then applying the change to the defendant violates due process. (2) Retroactive application of a judicial decision which is a judicial expansion of narrow and precise statutory language violates due process. (3) Judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where the alteration is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue. (4) Judicial abolishment of an obsolete common law rule which has never been relied upon by the appellate courts (outside of dicta) does not violate due process. (5) Applying (a) a post-offense superior appellate court's ruling (b) which overruled an inferior appellate court's well established interpretation of a statute (c) when the superior appellate court had not previously addressed the statute's interpretation (d) does not violate due process.

Metrish is a murder case in which diminished capacity was a recognized defense, under a line of cases from the Michigan Court of Appeals, when the defendant committed the homicide. However, before the trial under appeal was tried the Michigan Supreme Court, in a case of first impression, overruled the Court of Appeals. It ruled that Michigan statutes did not allow a diminished capacity defense. Therefore, the defendant was not allowed to use diminished capacity as a defense.

What the Opinion Should Have Said

Personally, I think the Supreme Court got this right, but for the wrong reason. If the court had said this was a matter of procedure rather than substance I think it would be a better decision. The substance of the crime remains the same; the elements of murder remained the same as they had been prior to the homicide. What changed was whether an affirmative defense was allowed. Whether something is allowed as an affirmative defense is a matter of procedure and the usual breakdown is that a court should apply the substantive law in place at time of offense and procedural law in place at time of trial.

Foreseeability Failure

Instead, the Court went with the incredibly subjective and unworkable "unforeseeability" standard.  This has all sorts of problems. In a case involving the substance of a law it would violate the requirement that notice be given that something is illegal. Notice of current status of the law is contained in the existing statutes and case law. A person does not have notice of something that won't be in the case law until six months after he does an act which falls afoul of it - no matter how "foreseeable" the change might be to an appellate judge who is watching trends in American law and has definite opinions as to where the law is heading.

Part (2) above refers to a case from South Carolina in which a statute defined trespass as entering property after barred. After the defendants had committed their act, the South Carolina Supreme Court made a ruling that the statute also applied if a person refused to leave a property after being told to. The US Supreme Court said this was an unforeseeable expansion of the law which was not in place at the time of the defendants' act and therefore the change in the law could not be applied in their case.

Note that this was a change in the substance of the law.  No matter how strongly the Court asserts the opposite, there's nothing terribly unforeseeable about a trespass statute applying to people who refuse to leave a property after being barred. However, as a substantive change in the law it would have easily fit under the framework I suggested above.

Parts (3) & (4) above refer to a case in Tennessee wherein the "year and a day" rule was eliminated by the appellate courts after the defendant did the act which eventually led to the death of his victim. In that case, the Court ruled that because the national trend was to eliminate the rule and Tennessee had only referred to the rule three times "in dicta" that the change was foreseeable. This shows something of an ignorance of how trial courts work. Accepted law, even as laid out in what courts may later dismiss as dicta, is applied over and over again in trial courts once it has been recognized by appellate courts. This sort of change is not "foreseeable" in the trial court until it takes place. In fact, the trial judge who refused to apply the rule that his appellate courts had previously recognized was technically in error until the appellate courts abolished the rule.

Whether or not the abolishment of the year and a day rule was foreseeable depends entirely on 20/20 hindsight. It was just as foreseeable that a longstanding doctrine recognized by the appellate courts of Tennessee could stand. However, as this is an affirmative defense it would be a procedural matter and easily fit under the framework I suggested above.

Finally, part (5) above is the rule in this particular case. Here is where the foreseeability standard really starts to sputter. The Court wants us to believe that when an intermediate appellate court has expressed the same opinion several times without the intervention of the state supreme court that we should foresee the state supreme court withdrawing its tacit approval of the intermediate appellate court's opinion. Is it foreseeable? Sure if you mean foreseeable in absolute terms. I mean, it's foreseeable that the US Supreme Court could overturn Griswold in the next term. Is it going to happen? Nope, but it's not unforeseeable. On the other hand, if they mean foreseeable as so clearly going to happen that trial courts ignore the intermediate court's precedent, how often does anyone see that? Maybe foreseeable is meant as probable? Legitimately possible?

Personally, I think the most likely meaning is "probable." However, that ambiguity is not resolved in this case.  Even if it did mean probable, it's not probable that a state supreme court would overrule a set of opinions it has given tacit approval to by not overruling previously. Does it happen? Sure it does. Is it likely in any particular set of opinions? Nope.

In other words, it was not foreseeable. It was a procedural change, but it wasn't foreseeable.

You have to wonder why the Court would use an unworkable "foreseeability" analysis when the simpler substantive/procedural analysis of the situation was available.