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Criminal Law

A Section of the Virginia State Bar.

April 2005 Criminal Law News

Volume 34 April, 2005 Number 5

O. P. Pollard Receives Carrico Award; Groot and Comey Challenge Audience at February Seminars

The 35th Annual Criminal Law Seminar was again a great success as 173 participants attended the program in Charlottesville, 473 more were at the Williamsburg session, and another 156 had viewed the videotape of the seminar during March with a number of additional showings of the tape to go. A superlative group of speakers informed those attending, while Washington & Lee Law School Professor Roger Groot gave an inspiring and challenging luncheon address in Charlottesville on indigent defense in Virginia, and Deputy Attorney General of the United States Jim Comey advocated for reauthorization of the U.S. Patriot Act in Williamsburg.

One highlight of the seminar was the presentation of the Harry L. Carrico Professionalism Award to O. P. Pollard, the long-time Executive Director of the Virginia Public Defender Commission prior to his retirement in 2003. Under his stewardship, the
state’s public defender network grew from the initial office in Waynesboro in 1972 to twenty-one offices serving forty-eight jurisdictions and employing 234 attorneys at the time of his retirement. Those offices also serve most of the major population centers in the state. Former Chief Justice Harry L. Carrico continued his fine tradition of being personally present to give the award to Pollard, and O.P.’s wife, Anne, was present as well.

Professor Groot delivered a spirited luncheon talk in Charlottesville as he traced the recent history of efforts to address the task of providing effective counsel to indigent defendants in Virginia. His comments were passionate and candid, as no group, from the organized bar to the courts to the General Assembly, was spared from his criticism. Jim Comey likewise delivered a provocative luncheon address in Williamsburg concerning the United States Patriot Act and the Justice Department’s rationale for seeking reauthorization of the Act.

Chairman's Letter

As the Bar year draws to a close please join me in thanking Bet Keller, Maureen Stengel, Terry Patrick and Dolly Shafner in providing invaluable guidance and support to the Criminal Law Section. Each year these ladies tirelessly assist us in organizing and presenting informative programming. We owe them a debt of gratitude. Please also join me in congratulating Overton P. Pollard (“O.P.???) as the recipient of the 2005 Carrico Professionalism Award. OP’s generous service to the Bar and to the legal community is truly laudable. He is an inspiration to us all.

Finally, the Section once again thanks Jim Comey and Professor Robert Groot for their provocative and inspiring remarks at our annual seminars this past February.

Please remember to register for the annual meeting at Virginia Beach. This year the Criminal Law Section will be co-sponsoring a program with the Domestic Relations Section. In keeping with years past, the program promises to be practical and engaging. All members are encouraged to make their reservations early, as the Bar expects high turnout.

Please accept my thanks to you, the members of the Section, for your devoted support of Section Programming and related activities. This year the Criminal Law Section took an active role in lobbying for increased funding for indigent defense. Although our efforts did not yield all of the successes we had hoped for, all of the members of the General Assembly praised the Bar for its involvement and leadership on this very important issue. We must continue to serve our respective communities, both as officers of the court and as community leaders.

Thank you once again for a wonderful year, and I look forward to seeing you all in Virginia Beach.

Michael Herring, Chairman

Virginia Supreme Court Criminal Law and Procedure Decisions

Cases decided January 14, 2005

Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839 (Court of Appeals) (Justice Lacy). Defendant was convicted at a bench trial of assault on a police officer. The Court of Appeals, 41 Va. App. 448, 585 S.E.2d 848, affirmed, and continued to do so following rehearing en banc, 42 Va. App. 681, 594 S.E.2d 284. The Supreme Court held as a matter of first impression that common law assault, whether a crime or tort, occurs when an assailant engages in an overt act intended to inflict bodily harm and has the present ability to inflict such harm or engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim, and that had occurred in this case.

Collins v. Commonwealth, 269 Va. 141, 607 S.E.2d 719 (Circuit Court of the City of Norfolk) (Senior Justice Russell). Collins was convicted of the possession of marijuana with the intent to distribute, for which he was sentenced to two years’ incarceration, with one year and nine months suspended. While he was free on bail pending an appeal of the conviction, he was convicted of a second drug possession offense, for which his suspended sentence on the first conviction was revoked for violation of the implicit condition of good behavior. The Supreme Court determined that the trial court was authorized to revoke the suspended sentence even though it was stayed pending appeal, and that court’s mischaracterization of the suspended sentence as probation was harmless error.

Correll v. Commonwealth , 269 Va. 3, 607 S.E.2d 119 (Court of Appeals) (Chief Justice Hassell). Defendant was convicted of felony neglect of incapacitated adult, and the Court of Appeals, 42 Va.App. 311, 591 S.E.2d 712, affirmed. The Supreme Court held that the evidence was sufficient to support the conviction based on the evidence of defendant’s seriously deficient care of her mother.El-Amin v. Commonwealth, 269 Va. 15, 607 S.E.2d 115 (Court of Appeals) (Justice Lacy).

Jefferson v. Commonwealth, 269 Va. 136, 607 S.E.2d 107 (Court of Appeals) (Senior Justice Compton). The Commonwealth petitioned for revocation of probation imposed in writing nunc pro tunc at a revocation hearing following a prior oral pronouncement of sentence. The circuit court granted the petition, and the probationer appealed. The Court of Appeals affirmed, and probationer sought further review. The Supreme Court awarded an appeal and held that the probationer was procedurally barred from asserting on appeal that the nunc pro tunc sentencing order was improperly entered in the course of the revocation hearing, or that the order did not accurately set forth the proceedings as they occurred at the original sentencing hearing and the revocation of probation imposed by the order was proper.

Morris v. Commonwealth, 269 Va. 127, 607 S.E.2d 110 (Court of Appeals) (Senior Justice Carrico). Morris was convicted following a bench trial in the circuit court of possession of a firearm by a convicted felon and brandishing a firearm, and his appeal to the Court of Appeals was denied. Upon granting defendant’s appeal, the Court held that the evidence was sufficient to support the conviction and it was sufficient to support the conviction for brandishing a firearm.

Cases decided March 3, 2005

Burns v. Warden of the Sussex I State Prison, 269 Va. ___, 609 S.E.2d 608 (Petition for a Writ of Habeas Corpus). Following his capital conviction and imposition of a death sentence, petitioner sought a writ of habeas corpus, asserting the constitutional ban against the imposition of the death sentence on mentally retarded defendants. On rehearing, the Court held that petitioner was statutorily entitled to a jury determination of his claim of mental retardation. Justice Kinser concurred in part and dissented in part.

Commonwealth v. Allen, 269 Va. 262, 609 S.E.2d 4 (Circuit Court of the City of Alexandria) (Justice Koontz). The Commonwealth filed a petition seeking the civil commitment of the prisoner, who had been convicted of aggravated sexual battery, as a sexually violent predator. The circuit court dismissed the petition, ruling that the Commonwealth had failed to prove by clear and convincing evidence that defendant was a sexually violent predator within meaning of the Sexually Violent Predators Act (SVPA). The Commonwealth appealed and the Supreme Court determined that a psychologist was qualified as expert witness to testify for prisoner, the fact that the psychologist did not track precise language of the definition of “sexually violent predator??? in the Act in his testimony did not disqualify him from testifying as an expert witness, and the trial court applied the correct standard of proof in determining that Commonwealth had not shown by clear and convincing evidence that the prisoner was likely to commit future acts of sexual violence. Justice Kinser concurred in part and dissented in part in an opinion joined by Justice Lemons.

Emmett v. Warden of the Sussex I State Prison, 269 Va. 164, 609 S.E.2d 602 (Petition for a Writ of Habeas Corpus). Following the affirmance of his convictions for capital murder and robbery on direct appeal, 264 Va. 364, 569 S.E.2d 39, petitioner sought habeas relief. The Supreme Court issued an order finding that defense counsel’s failure to object to an incomplete verdict form was deficient, but that petitioner had suffered no prejudice thereby. The warden filed a petition for rehearing. Upon the grant of the petition for rehearing, the Court held that defense counsel’s failure to object to an incomplete penalty phase verdict form constituted deficient performance, this deficient performance in failing to object to an incomplete penalty phase verdict form did not constitute structural error and the defense counsel’s deficient performance did not prejudice the petitioner. The petition was dismissed. Justice Koontz filed a dissenting opinion.

Hood v. Commonwealth, 269 Va. 176, 608 S.E.2d 913 (Court of Appeals) (Justice Lacy). Hood was convicted following a bench trial in the circuit court of first-degree murder as a principal in the second degree. The Court of Appeals affirmed and Hood appealed. The Supreme Court held that the admission of defendant’s proffer statement contained in the “immunity/cooperation??? agreement that he had entered into in the course of plea negotiations, attributing murder to his alleged accomplice, was appropriate and the evidence supported the conviction.

Lewis v. Commonwealth, 269 Va. 209, 608 S.E.2d 907 (Court of Appeals) (Justice Keenan). Defendant was convicted by a jury of four counts of attempted robbery. The Court of Appeals reversed and dismissed one of the attempted robbery convictions and affirmed the remaining three, 43 Va. App. 126, 596 S.E.2d 542. The Supreme Court decided that the prosecutor’s questions to an alibi witness on cross-examination which implied that the witness had been involved in illegal drug-related activities were improper, and that improper conduct prejudiced the defendant’s right to a fair trial. Reversed and remanded. Justice Agee filed a dissenting opinion, in which Justices Lacy and Kinser joined.

McCloud v. Commonwealth, 269 Va. 242, 609 S.E.2d 16 (Circuit Court of Prince William County) (Justice Koontz). The Commonwealth filed a petition seeking civil commitment of the prisoner as a sexually violent predator, pursuant to the Sexually Violent Predators Act (SVPA). Following a unanimous jury verdict determining prisoner to be a sexually violent predator, the trial court ordered him committed to the custody of the Department of Mental Health, Mental Retardation, and Substance Abuse Services for appropriate treatment and confinement. The prisoner appealed and the Commonwealth cross-appealed. The Supreme Court ruled that the probative value of the prisoner’s convictions for abduction and indecent liberties outweighed any prejudicial effect the evidence of the convictions might have had on the minds of jurors, and thus the evidence was admissible, it was not an abuse of discretion for trial court to limit the introduction of evidence concerning the prisoner’s misbehavior while in prison to instances of infractions for prohibited sexual conduct, there was sufficient evidence to support the finding that alternatives to involuntary confinement of prisoner had been investigated and deemed unsuitable, and the trial court did not improperly shift to the prisoner the burden of proving that there was a suitable alternative to involuntary confinement.

Palmer v. Commonwealth, 269 Va. 203, 609 S.E.2d 308 (Court of Appeals) (Justice Keenan). Palmer was convicted in a bench trial of two counts of possession of a firearm when under the age of 29 and after having been convicted of a delinquent act as a juvenile that would have been a felony if committed by adult. The Court of Appeals refused the petition for appeal and Palmer appealed to the Supreme Court. That court held that the evidence was insufficient to prove that Palmer was convicted of acts that would have been felonies if committed by an adult because the juvenile court order did not expressly articulate the facts or nature of his adjudication, and the circuit court could not engage in conjecture about the nature of the offenses. The convictions were reversed and the charges dismissed.

Parker v. Commonwealth, 269 Va. , 608 S.E.2d 925 (Court of Appeals) (Per curiam). Parker was convicted of operating a food manufacturing plant that had not been inspected by the Commissioner of Agriculture and Consumer Services. The Supreme Court affirmed the conviction for the reasons stated in the opinion of the Court of Appeals, 42 Va.App. 358, 592 S.E.2d 358 (2004).

Townes v. Commonwealth, 269 Va. 234, 609 S.E.2d 1 (Circuit Court of Campbell County) (Justice Koontz). The Commonwealth filed a petition for the civil commitment of the prisoner as a sexually violent predator pursuant to the Sexually Violent Predators Act (SVPA). The circuit court committed the prisoner to the custody of the Department of Mental Health, Mental Retardation and Substance Abuse Services for appropriate treatment and confinement in a secure facility. The Supreme Court held that a prisoner who had completed his sentence for rape was not subject to such civil commitment.

Viney v. Commonwealth, 269 Va. 296, 609 S.E.2d 26 (Court of Appeals) (Justice Lemons). Viney was convicted after a bench trial of two counts of taking indecent liberties with a child, and the Court of Appeals affirmed. The Supreme Court ruled that his acts of attracting the attention of two girls and then exposing himself constituted a “gesture??? sufficient to establish lascivious intent, as required for the convictions.

Yarborough v. Warden of Sussex I State Prison , 269 Va. 184, 609 S.E.2d 30 (Petition for a Writ of Habeas Corpus) (Justice Koontz).

On remand, the circuit court again sentenced defendant to death and the Supreme Court affirmed, 262 Va. 388, 551 S.E.2d 306. Yarborough then petitioned for a writ of habeas corpus. After initially refusing the petition, the Supreme Court granted it for rehearing and ordered the circuit court to conduct an evidentiary hearing on petitioner’s claim of the ineffective assistance of counsel. The lower court did so and submitted a report. The Supreme Court concluded that the defense counsel did not render ineffective assistance at second penalty hearing by failing to investigate and present certain mitigation evidence, and dismissed the petition.

Cases decided April 18, 2005

Commonwealth v. Hudgins, Record No. 041585 (Court of Appeals) (Senior Justice Carrico). Hudgins pushed an eleven-year-old youth from his bicycle and took the bicycle from him. An indictment charged him with robbing the boy in violation of Code § 18.2-58. In a bench trial, he was acquitted of robbery, but ten days later, he was charged in an indictment with stealing property worth five dollars or more from the person of the youth in violation of Code § 18.2-95. Hudgins moved to dismiss the second indictment on the ground of former jeopardy because of the prior acquittal of robbery involving the same bicycle. The trial court denied the motion to dismiss, holding that grand larceny from the person is not a lesser-included offense of robbery and, therefore, that the acquittal of robbery was not a bar to the subsequent prosecution. Hudgins was convicted of grand larceny from the person, but the Court of Appeals held that grand larceny from the person is a lesser-included offense of robbery and reversed his conviction. The Supreme reversed the judgment of the Court of Appeals and entered final judgment reinstating the conviction of grand larceny from the person. The Court held that each offense at issue required proof of an element that the other did not and that, pursuant to the test in Blockburger v. United States, 284 U.S. 299 (1932), there were two offenses rather than one. The Court did not consider defendant’s argument that his acquittal of robbery impliedly acquitted him of grand larceny since that argument was not raised in the trial court.

Muhammad v. Commonwealth, Record Nos. 041050-041051 (Circuit Court of Prince William County) (Justice Lemons). Defendant was convicted of two counts of capital murder, conspiracy to commit capital murder, illegal use of a firearm in the commission of murder, and was sentenced to death. On appeal, the Supreme Court held that the evidence supported a capital murder instruction premised on theory of joint participation, the evidence was sufficient to support defendant’s conviction for capital murder in the commission of an act of terrorism, and the theories under which the defendant and his youthful co-perpetrator were contemporaneously prosecuted in separate counties for capital murder were not inconsistent. The Court also ruled that the defendant had no due process right to have the aggravating circumstances recited in his capital murder indictments, letters written by the defendant to unidentified individual were not exculpatory material to which defendant was entitled, the record supported the finding that the defendant was tried by a fair and impartial jury and that his trial was not in any way tainted by pretrial publicity, and the death sentence was not disproportionate. Justice Kinser concurred and filed a separate opinion, and Justice Agee dissented in part and concurred in part in a separate opinion in which Justices Lacy and Koontz joined, premised on whether the evidence showed Muhammad to be a principal in the first degree.

Virginia Court of Appeals Criminal Law and Procedure Decisions

Cases decided January 11, 2005

Henry v. Commonwealth , 44 Va. App. 702, 607 S.E.2d 140 (Circuit Court of the City of Bristol) (Chief Judge Fitzpatrick).

Wheeler v. Commonwealth, 44 Va. App. 689, 607 S.E.2d 133 (Circuit Court of Fairfax County) (Judge Annunziata). Wheeler was convicted of possession of heroin and possession of stolen stock certificates with a value exceeding $200. The conviction for possession of stolen stock certificates was not a miscarriage of justice warranting consideration of the unpreserved issue that they had no value, because the unrebutted evidence was that the certificates had a market value of $21,000.

White v. Commonwealth, 44 Va. App. 673, 607 S.E.2d 125 (Upon Petition for Rehearing En Banc). A petition for rehearing en banc to the decision reported at 44 Va.App. 429, 605 S.E.2d 337 (2004) is granted and the appeal is reinstated on the docket.

Cases decided January 18, 2005

Jeter v. Commonwealth, 44 Va. App. 733, 607 S.E.2d 734 (Circuit Court of Fairfax County) (Judge Humphreys). Defendant was convicted by a jury of distribution of cocaine and he appealed. The Court determined that the Commonwealth established a proper chain of custody for an exhibit consisting of a lock-sealed envelope containing suspected cocaine.

Lampkins v. Commonwealth, 44 Va. App. 709, 607 S.E.2d 722 (Circuit Court of the City of Martinsville) (Judge Frank). After a murder charge against Lampkins, a juvenile, was dismissed by the juvenile court, he was convicted in the circuit court of the same charge. The Court of Appeals held that the denial of a hearing on transfer from juvenile to circuit court was invited by defendant who succeeded on his motion to dismiss the charge in juvenile court, the Commonwealth had statutory authority to bring a direct indictment in the circuit court after the juvenile court dismissed the charge without a preliminary hearing, the statute governing the procedure for the circuit court to follow on appeal from an adverse transfer decision of juvenile court did not apply to the defendant’s challenge to direct indictment for murder after the charges were dismissed by juvenile court, and the defendant was entitled to enforcement of the cooperation/immunity agreement with the Commonwealth. The judgment was reversed and the charge dismissed.

Cases decided January 25, 2005

Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749 (Circuit Court of Northampton County) (Judge Humphreys). After denial of his motion to suppress, defendant entered a conditional guilty plea to possessing a firearm while possessing cocaine, possessing cocaine with intent to distribute, and another drug-related charge. A panel of the Court reversed, 42 Va.App. 481, 592 S.E.2d 761, but on en banc rehearing, the Court held that although the magistrate lacked a substantial basis for finding that the facts set forth in affidavit established probable cause to issue search warrant of defendant’s home in order to discover pistol, the affidavit contained some indicia of probable cause, and thus the good-faith exception applied. The trial court’s judgment was thus affirmed.

Thomas v. Commonwealth, 44 Va. App. 741, 607 S.E.2d 738 (Circuit Court of Fairfax County) (Judge Kelsey). Thomas was convicted of possession of a firearm by a felon. The Court concluded that the ends of justice exception to the contemporaneous objection rule did not allow for review of an unpreserved claim that the trial court erred by failing to give a cautionary instruction after s witness testified that drug evidence was found in the vehicle where the firearm was found, the trial court did not abuse its discretion by admitting into evidence the 46 plastic baggies found in vehicle or the officer’s expert testimony about their use in the illegal drug trade, the prior-bad-acts doctrine did not preclude admission of evidence that the baggies were found in vehicle, and the probative value of the evidence that the baggies were found in the car sufficiently outweighed the danger of undue prejudice to be admissible.

Case decided February 1, 2005

Davis v. Commonwealth, 45 Va. App. 12, 608 S.E.2d 482 (Circuit Court of Grayson County) (Chief Judge Fitzpatrick). Davis was convicted of escape from confinement, but the Court of Appeals held that, as a matter of apparent first impression, he was not “in the custody of the court??? upon failing to report to jail after being released on bond pending sentencing.

Case decided February 8, 2005

Gilbert v. Commonwealth, 45 Va. App. 67, 608 S.E.2d 509 (Circuit Court of Russell County) (Senior Judge Willis). Defendant was convicted of assault and battery on a law enforcement officer. The Court determined that circumstantial evidence was sufficient to support the finding that defendant’s act of spitting on the officer constituted the infliction of bodily harm as required to support the conviction.

Case decided February 15, 2005

Johnson v. Commonwealth, 45 Va. App. 113, 609 S.E.2d 58 (Circuit Court, City of Richmond) (Judge Kelsey). Johnson was convicted of possessing heroin with the intent to distribute after the court permitted evidence based on a permissible weapons frisk and inevitable discovery. He appealed the denial of the suppression motion. The Court held that his failure to challenge the alternative holding based on the inevitable discovery doctrine resulted in a waiver on appeal by challenging only the weapons frisk.

Cases decided February 22, 2005

Moore v. Commonwealth
, 45 Va. App. 146, 609 S.E.2d 74 (Circuit Court of the City of Portsmouth) (Judge Elder).

Randolph v. Commonwealth, 45 Va. App. 166, 609 S.E.2d 84 (Circuit Court of the City of Suffolk) (Judge Clements). At a bench trial in a prosecution for possession of cocaine, the judge denied the defendant’s motion to strike at close of Commonwealth’s case and, after the defendant rested without presenting evidence, denied the defendant’s renewed motion to strike but granted his motion to defer disposition and give him first offender status. The Court held that the trial court’s order was not a final judgment of conviction and therefore was not appealable.

Shelton v. Commonwealth, 45 Va. App. 175, 609 S.E.2d 89 (Circuit Court of the City of Martinsville) (Judge McClanahan). Defendant was convicted of DUI and appealed. The Court held that a police officer substantially complied with the procedural requirement, under the implied consent law, of promptly delivering to defendant a copy of the certificate for the breath test result by showing him a copy of the test print-out.

Morris v. Commonwealth , 45 Va. App. 181, 609 S.E.2d 92 (Circuit Court of the City of Colonial Heights) (Judge McClanahan).

Cases decided March 1, 2005

Overdorff v. Commonwealth, 45 Va. App. 222, 609 S.E.2d 626 (Circuit Court of Hanover County) (Judge Humphreys). The juvenile was convicted as an adult in the circuit court of conspiracy to attempt arson, malicious use of an explosive device, grand larceny, and manufacture of an explosive device. Juvenile appealed. The Court of Appeals held that the indictment cured any defects in the Commonwealth’s compliance with statutory procedures governing a notice of appeal.

Thomas v, Commonwealth, 45 Va. App. 192, 609 S.E.2d 611 (Petition for Rehearing En Banc). The petition for rehearing en banc was granted, the mandate entered on January 25, 2005, was stayed, and the appeal was reinstated on the Court’s docket.

Wilson v. Commonwealth, 45 Va. App. 193, 609 S.E.2d 612 (Circuit Court of Spotsylvania County) (Judge Elder). Defendant was convicted, following a bench trial, of DUI. The Court of Appeals held that the evidence supported the finding that an off-duty officer’s act of observing defendant’s driving, approaching defendant’s vehicle after it came to a stop, and detaining defendant until proper authorities arrived, was no more than a citizen would have been entitled to do under similar circumstances. Thus, the “color of office doctrine??? did not apply, and the record supported the finding that the defendant was not arrested in a store parking lot for DUI, but rather for public intoxication, and thus the Commonwealth had no duty to provide defendant a breath or blood alcohol concentration pursuant to the implied consent law.

Case decided March 8, 2005

Roe v. Commonwealth, 45 Va. App. 240, 609 S.E.2d 635 (Circuit Court of the City of Richmond) (Judge McClanahan). The re-indicted defendant was convicted of abduction, use of a firearm in the commission of abduction, and possession of a firearm by a felon. The Court held that the trial court’s interpretation of the order dismissing the original indictments as a nolle prosequi was reasonable. Judge Benton dissented.

Case decided March 15, 2005

Rock v. Commonwealth, 45 Va. App. 254, 610 S.E.2d 314 (Circuit Court of Essex County) (Judge McClanahan). Rock was convicted of conspiracy to commit robbery. . The Court of Appeals held that the record supported the trial court’s finding that the murder of the victim occurred as a direct consequence of a conspiracy to commit robbery, and thus victim’s brother and the mother of victim’s children were statutorily entitled to give victim-impact testimony at sentencing as “victims??? of the conspiracy, and victim-impact testimony by brother and mother was relevant and admissible at sentencing even if they were not “victims??? within the meaning of the statute.

Case decided March 22, 2005

Moore v. Commonwealth, 45 Va. App. 279, 610 S.E.2d 326 (Petition for Rehearing En Banc). The Attorney General’s petition for a rehearing en banc was granted, the mandate entered on February 22, 2005, was stayed pending the decision of the Court en banc.

Case decided March 29, 2005

Fritter v. Commonwealth , Record No. 0524-04-4 (Circuit Court of Fairfax County) (Judge Clements).

Cases decided April 12, 2005

Gonzales V. Commonwealth , Record No. 1351-03-4 (Upon Rehearing En Banc) (Chief Judge Fitzpatrick).

Moses was convicted after a bench trial of two counts of making an obscene display or exposure. The Court of Appeals, 43 Va. App. 565, 600 S.E.2d 162, vacated the convictions, but on rehearing en banc, the Court held that the fact that the defendant was fully clothed while masturbating in public did not prevent his actions from constituting an obscene “display??? of his person or private parts. Benton, J., dissented and filed opinion in which Fitzpatrick, C.J., and Elder, J., joined.

Neely v. Commonwealth, Record No. 2325-03-1 (Upon Rehearing En Banc). By a published opinion a divided panel of the Court reversed the judgment of the trial court, 44 Va.App. 239, 604 S.E.2d 733 (2004). The Court granted a rehearing en banc, and ordered that the judgment of the trial court be reversed and the case be remanded to the trial court for the reasons set forth in the majority panel opinion. Chief Judge Fitzpatrick, Judges Bumgardner, Felton and Haley dissent for the reasons set forth in the panel dissent.

Case decided April 19, 2005

Schwartz v. Commonwealth , Record No. 0577-03-4 (Circuit Court of Loudoun County) (Judge Clements).

Selected Opinions of the United States Court of Appeals for the 4th Circuit

United States v. Ickes , 393 F.3d 500 (Jan. 4, 2005) (Judge Wilkinson).

O’Brien v. Moore, 395 F.3d 499 (Jan. 27, 2005) (Judge Niemeyer). A successful habeas corpus petitioner moved for an award of attorney’s fees under the Equal Access to Justice Act (EAJA). The district judge granted the motion and entered an order awarding $35,935 in fees. The Bureau of Prisons appealed and the Court of Appeals held that the term “civil action,??? in the EAJA, authorizing an award of reasonable attorney fees to the prevailing party in any civil action against the United States did not unambiguously include a habeas challenge and, thus the judgment was reversed.

United States v. Stevenson, 396 F.3d 538 (Feb. 1, 2005) (Judge Niemeyer). Stevenson, who was charged with being a felon in possession of a firearm, moved to suppress the evidence discovered during a warrantless search of an apartment. The district court denied the motion and convicted the defendant of the firearms offense pursuant to a jury verdict. The Court of Appeals ruled that the district court’s factual findings, in denying the motion to suppress, that the defendant had abandoned any intent of returning to the apartment and no longer considered himself a tenant, were not clearly erroneous. Also, where, prior to the police officer’s search of the apartment, the defendant had not only abandoned any intent of returning, but also had written a letter to his girlfriend giving her all of the personal property located in apartment, he no longer had any expectation of privacy in the apartment that society would recognize as reasonable.

Humphries v. Ozmint, Director, 397 F.3d 206 (Feb. 4, 2005) (Senior Judge Hamilton). Following an affirmance both of his criminal conspiracy, attempted armed robbery, and murder convictions and of his sentence of death in state court, 325 S.C. 28, 479 S.E.2d 52, petitioner filed a habeas corpus petition in federal district court. The district judge dismissed the petition, and petitioner appealed. Vacating a prior panel opinion, 366 F.3d 266, following a grant of a petition for rehearing en banc, the Court of Appeals held that the determination by the South Carolina Supreme Court, in rejecting a due process claim which was based upon the prosecutor’s detailed comparison of the lives of the capital murder defendant and his victim during closing argument at penalty phase of case, that this comparison did not affect fundamental fairness of capital sentencing procedure, did not represent an unreasonable application of Supreme Court precedent as might warrant the grant of federal habeas relief. The Court also ruled that state law claims are not cognizable on federal habeas review and that the South Carolina Supreme Court reasonably interpreted federal law to find that admission of victim impact evidence did not violate capital murder defendant’s due process right to fair trial, notwithstanding the state’s alleged failure to provide defendant with adequate advance notice of its intent to introduce such evidence. Judge Luttig concurred and filed an opinion. Judge Wilkinson dissented and filed an opinion urging that “no person should be executed in America on the theory that his life is of less worth than that of someone else,??? in which Judges Michael, Gregory and Duncan joined.

United States v. Smith, 396 F.3d 579 (Feb. 10, 2005) (Chief Judge Wilkins). Smith was charged with being a convicted felon in possession of a firearm and he moved to suppress evidence seized from his car. The district court denied the motion, and he entered a conditional guilty plea, and appealed the denial of the motion to suppress. The Court of Appeals held that police officers had a reasonable suspicion that Smith was engaged in criminal activity, justifying the stop of the car.

Walker v. True, Warden, 401 F.3d 574 (Feb. 17, 2005) (Judge Luttig). After his convictions for killing more than one person within a three-year period, and for other offenses, and his death sentence, were upheld on direct appeal, 258 Va. 54, 515 S.E.2d 565, petitioner sought federal habeas corpus relief. The district court dismissed the petition. The Court of Appeals declined to issue a Certificate of Appealability and affirmed. On a grant of certiorari, the Supreme Court vacated and remanded for reconsideration. The district court again dismissed the petition. The Court of Appeals held that trial counsel’s failure to further investigate the possibility that petitioner suffered from organic brain deficiency as a mitigating factor for sentencing purposes did not constitute the ineffective assistance of counsel, and petitioner was not entitled to an evidentiary hearing on his ineffective assistance of counsel claim.

United States v.Groce, 398 F.3d 679 (Feb. 28, 2005) (Judge Luttig). Groce was convicted on her guilty plea of bank robbery, and she was convicted on a jury verdict of using or carrying a firearm during robbery, and she appealed weapons conviction and sentence. The Court held that the finding that defendant had “brandished??? a weapon in the course of the robbery, so as to warrant the seven-year minimum prison term, required a finding that the weapon had been present in the bank with her during the robbery, and the indictment’s citation to the “brandishing??? statute did not require that the government prove brandishing to jury. The convictions were affirmed in part and the sentence vacated and remanded in part.

United States v. Johnson, 400 F.3d 187 (March 8, 2005) (Judge Motz). The defendant was convicted following a jury trial of kidnapping, using a firearm in the commission of a crime of violence, and attempting to kill a potential witness, and he was sentenced to 789 months' imprisonment. The Court of Appeals held that statements defendant made after invoking his right to counsel were inadmissible, but their admission was harmless, the district court properly ordered the defendant to pay restitution under Mandatory Victims Restitution Act to a mental health agency for the fair cost of counseling provided to the victim, rather than only for reduced rate it charged victim, and enhancement of defendant’s sentence based on court's findings that the kidnapping occurred in connection with a sexual assault, and that victim sustained permanent or life-threatening bodily injury, violated his Sixth Amendment rights under Blakely.

In re Grand Jury Proceedings # 5, 401 F.3d 247 (March 11, 2005) (Judge Gregory). In a John Doe criminal proceeding, the defendants moved to quash a grand jury subpoena seeking documents and defense attorney’s testimony, invoking attorney-client and work product privileges. The district court denied the motion, and defendants sought to appeal. The Court of Appeals, concluded that the lower court abused its discretion by determining that the crime-fraud exception overrode the attorney-client privilege as to documents, without either viewing the documents in question or receiving evidence of their content, and the evidence was insufficient to warrant finding that the crime-fraud exception overrode the attorney-client privilege as to the attorney’s testimony.

United States v. Brown, 401 F.3d 588 (March 25, 2005) (Chief Judge Wilkins). Brown was charged with possession of a firearm by a convicted felon and he moved to suppress the seized firearm and post-arrest statements. The district court granted the motion and the government appealed. The Court of Appeals held that the defendant was “seized??? for Fourth Amendment purposes when the police officers ordered him to place his hands on a police vehicle, and he submitted to that order, the officers lacked reasonable suspicion to justify a Terry stop of defendant under the Fourth Amendment based upon an anonymous telephone tip and the officers lacked probable cause to arrest him for public intoxication. Judge Neimeyer filed a dissenting opinion.

United States v. Evans, No. 04-4230 (April 12, 2005) (Judge Williams). Defendant, who had been charged with assaulting an employee of the United States Department of Agriculture and threatening to murder a United States judge, but had been found incompetent to stand trial because of his paranoid schizophrenia, refused an antipsychotic medication, and the government moved to medicate him against his will in order to render him competent to stand trial. The district judge granted the motion, and defendant appealed. The Court of Appeals determined that the crimes on which defendant was indicted were “serious,??? and so the government had an “important??? interest in trying him, within meaning of the test articulated by the Supreme Court in Sell v. United States for the administration of involuntary medication for prosecutorial purposes, no “special circumstances??? undermined the government’s important interest in trying defendant, but the government, which neither disclosed the particular medication and dose range that it proposed to give defendant nor indicated that it considered this defendant’s particular mental and physical condition in reaching its conclusions, failed to demonstrate that involuntary medication would “significantly further??? its prosecutorial interest and was “medically appropriate.??? The order was vacated and the case remanded with instructions.

United States v. Robinson, Nos. 04-4388, 04-4417 (April 18, 2005) (Judge Williams). Robinson, a juvenile tried as an adult, was convicted of multiple offenses arising from a string of armed robberies following a jury trial and sentenced to 384 months’ imprisonment and five years’ supervised release. He appealed, and the government cross-appealed. The Court of Appeals held that finding the defendant competent to stand trial was not clear error, transferring the defendant for trial as adult also was not an abuse of discretion, the defendant was not per se incapable of waiving his Miranda rights due to his low I.Q., and granting him a downward departure that resulted in a sentence below statutorily provided mandatory minimum was error.



Updated: Monday, October 1, 2007 4:45 PM