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Criminal Law

A Section of the Virginia State Bar.

September 2005 Criminal Law News

Volume 35 September, 2005 Number 1

  • VSB Annual Meeting Program a Success; Bryant Elected Chair and Three New Members Join Board

    The Criminal Law Section and the Family Law Section joined together to present a program on the interface between criminal law and family law at the VSB annual meeting in Virginia Beach on June 17th. Section member Michael Hu Young of The Barnes Law Firm in Chesterfield County led a panel with Circuit Judge L. A. Harris, Jr. of Henrico County and Shep Wainger of Kaufman & Canoles in Norfolk to discuss such issues as electronic surveillance, child abuse and domestic violence and the ethical issues presented by the intersection between these two areas of the law.

    At the meeting, Section members elected Virginia Beach Commonwealth's Attorney Harvey Bryant to serve as Chair of the Section for 2005-2006, and he will be joined by John Lichtenstein of the Roanoke law firm of Lichtenstein, Fishwick & Johnson as Vice-Chair and Powhatan Commonwealth's Attorney Bob Beasley as Secretary. New Board members welcomed were David Baugh and Carolyn Grady of Richmond and the Honorable John Brownlee of Roanoke.

    David Baugh is a criminal defense lawyer in Richmond, and he has a long history of successful involvement in high profile cases in Virginia and around the nation. He is a graduate of Virginia State University and Texas Southern University, where he received his law degree. Baugh is a former Assistant United States Attorney in Texas and Virginia, and is a past President of the Virginia College of Criminal Defense Attorneys and the Richmond Criminal Bar Association. He has previously served the Section by lecturing at the Criminal Law Seminar and at the Virginia State Bar Annual Meeting, and he was a luncheon speaker at the Criminal Law Seminar in Charlottesville. Baugh has been a highly popular presenter in each of these roles.

    Carolyn Grady is a graduate of Skidmore College, where she was elected to Phi Beta Kappa, and the Boston College Law School. She was an associate with McGuire, Woods, Battle & Boothe prior to serving as an Assistant Public Defender and Senior Assistant Public Defender in Richmond from 1991-1998. She was with Epperly, Follis & Schork from 1998 until this July when she joined the office of the Federal Public Defender in Richmond. Grady is an Adjunct Faculty Member at the University of Richmond Law School, where she teaches in the Lawyering Skills program.

    John Brownlee joins the Board of Governors in his role as United States Attorney for the Western District of Virginia. He received his undergraduate education at Washington & Lee University and his law degree from the Marshall-Wythe School of Law at the College of William & Mary. He served as a law clerk to the Honorable Sam Wilson in the Western District of Virginia, and was an Assistant United States Attorney for the District of Columbia.

    He practiced law privately with Woods Rogers in Roanoke prior to his appointment as United States Attorney in 2001.

  • Chairman's Letter

    Members of our section bring to mind what Chaucer wrote of the Clerk in Canterbury Tales: "¼and gladly would he learn, and gladly teach." Our profession, and more particularly the practice of criminal law, remains both vibrant and demanding because of the need to learn and re-learn the skills and body of law that enables us to prosecute, defend or adjudicate criminal charges. Equally important is our willingness to teach and to mentor so that all components of our adversarial system improve. Our section's yearly seminars provide the opportunity to learn and to teach to over 700 participants per year. The ground work for another great seminar this coming February has already been laid by our Vice Chair and Program Chair John Lichtenstein and your Board of Governors.

    Aiding us on behalf of our over two thousand section members are our new board members John L. Brownlee, U.S. Attorney, WDVA, Carolyn V. Grady of the Federal Public Defender's Office and David P. Baugh. I'm grateful for the time and expertise that they and all of our board members devote to the business of our section.

    Michael Herring is a class act who did a great job as Chairman and to whom we owe our thanks and appreciation. I am honored to follow him as Chairman of this highly regarded section.
    Please contact me or any member of the Board of Governors with any questions, concerns or suggestions that you have. All the information that you need regarding our section or how to contact us is on our website found at www.vsb.org/sections/cr/index.

    Oh,. . . there was another trait of the Clerk that serves us well:

    Not one word spoke he more than was necessary,
    And that was said with due formality and dignity,
    And short and lively and full of high morality.

    Harvey L. Bryant, Chairman

  • Bob Shepherd Receives ABA Livingston Hall Award

    Bob Shepherd, Professor Emeritus at the University of Richmond Law School, the Editor of this Newsletter, and the organizer of the Section's annual Seminar, received the ABA's Livingston Hall Award for his many contributions to the juvenile justice system at the recent meeting of the American Bar Association held in Chicago in August. The award is named in honor of the late Livingston Hall, a Professor at the Harvard Law School, who was an early leader in the juvenile justice field and who led the effort to secure the ABA's approval of the comprehensive IJA-ABA JUVENILE JUSTICE STANDARDS, a multi-volume work which is still authoritative today. When Chief Justice Carrico presented Bob Shepherd the Carrico Professionalism Award several years ago, he remarked that Bob's accomplishments were contained in a 60-page vita. The Board of Governors congratulates Bob on this most recent of his many recognitions.

    Reno S. Harp, III

  • Virginia Supreme Court Criminal Law and Procedure Decisions

    Case decided June 3, 2005

    Morrisette v. Warden of the Sussex I State Prison
    , ___ Va. ___, 613 S.E.2d 551 (Petition for a Writ of Habeas Corpus). Following appellate affirmance, 264 Va. 386, 569 S.E.2d 47, of his convictions of capital murder and rape, and of his sentence of death, Morrisette sought a writ of habeas corpus. The Supreme Court held that claims which could have been raised and adjudicated at trial and on direct appeal, but were not, were procedurally defaulted, juror affidavits were inadmissible to impeach the jury's verdict, the indictment was not required to include the state's intended aggravating factors, defense counsel's failure to object to the trial court's qualification of the jury panel consisting of less than 24 venire persons and to insist on additional peremptory challenge was not presumptively prejudicial, any deficiency arising out of such failure was not ineffective assistance, defense counsel's failure to present particular guilt phase testimony, seek a lesser included offense instruction, or conduct post-trial juror interviews was not deficient performance, sentencing options set forth in the verdict form in the penalty phase were required explicitly to correspond to court's sentencing instructions, overruling Roach v. Commonwealth, 251 Va. 324, 468 S.E.2d 98 and Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380, the penalty phase verdict form was required to include express language instructing the jury that it could impose life sentence even if it concluded that the state had proven either or both of the aggravating factors alleged by it beyond a reasonable doubt, and the defense counsel's failure to object to the verdict form omitting such instruction amounted to ineffective assistance. The writ was granted in part and denied in part. Justice Kinser concurred in part and dissented in part with an opinion in which Justices Lemons and Agee joined.

    Cases decided June 9, 2005

    Charles v. Commonwealth, 270 Va. 14, 613 S.E.2d 432 (Court of Appeals). Justice Lacy. Defendant's probation for possession of heroin with intent to distribute was revoked by the circuit court based on probation violations. The Court of Appeals affirmed, and the Supreme Court concluded that defendant's five-month participation in Detention Center Incarceration Program constituted "incarceration" for which defendant was entitled to credit, the trial court lacked the statutory discretion to deny defendant credit for time spent participating in the Detention Center Incarceration Program, and the application of the ends of justice exception to the contemporaneous objection rule was necessary to prevent grave injustice.

    Commonwealth v. Hilliard, 270 Va. 42, 613 S.E.2d 579 (Court of Appeals). Justice Keenan.
    Hilliard was convicted of murder, use of a firearm in the commission of murder, maliciously shooting into occupied vehicle, and discharging a firearm within 1,000 feet of a school. On rehearing en banc, the Court of Appeals affirmed in part, reversed in part, and remanded, 43 Va. App. 659, 601 S.E.2d 652. The Commonwealth appealed, and defendant assigned cross-error. The Supreme Court held that defendant unequivocally requested counsel during the custodial interrogation, and thus detectives were required to cease their questioning. Justice Agee concurred in part and dissented in part and filed an opinion.

    Dixon v. Commonwealth, Va. , 613 S.E.2d 398 (Court of Appeals). Justice Keenan. Dixon entered a conditional guilty plea in the circuit court to driving under the influence (DUI) third offense, driving on a suspended license, and refusing to submit to a breath or blood-alcohol test. He petitioned for an appeal of his convictions for DUI and driving on a suspended license, and the Court of Appeals denied the petition. He also appealed the trial court's judgment on the charge of refusing to submit to a breath or blood-alcohol test. The Court of Appeals transferred that case to the Supreme Court and the appeals were consolidated. The Supreme Court held that the defendant was in custody for the purposes of Miranda when questioned by a law enforcement officer about the vehicle accident. The judgments were affirmed and reversed and remanded.

    Farnsworth v. Commonwealth, 270 Va. 1, 613 S.E.2d 459 (Court of Appeals). Per curiam. Defendant was convicted in the circuit court of knowingly and intentionally possessing a firearm after being convicted of a felony. The Court of Appeals, 43 Va. App. 490, 599 S.E.2d 482, affirmed. The Supreme Court concluded that restoration of the defendant's civil rights following his completion of his sentence on a felony conviction in West Virginia, without more, did not bring him within the exemptions from application of the statute under which he was convicted.
    Rose v. Commonwealth, 279 Va. 3, 613 S.E.2d 454 (Court of Appeals). Chief Justice Hassell. Defendant was convicted of capital murder, robbery, and use of firearm during the commission of robbery or attempted robbery. The Court of Appeals affirmed. The Supreme Court ruled that prior robbery and charged robbery were not sufficiently distinctive or idiosyncratic for evidence of the prior robbery to be admissible under the other-crimes rule, but error in the trial court's admission of the evidence of the prior robbery was harmless.

    Shivaee v. Commonwealth, 270 Va. 112, 613 S.E.2d 570 (Circuit Court of the City of Norfolk) Butler v. Commonwealth, 270 Va. 112, 613 S.E.2d 570 (Circuit Court of the City of Chesapeake). Justice Lemons. In the first case, Shivaee, a convicted sex offender was adjudicated as a sexually violent predator under Sexually Violent Predators Act. In the second case, Butler, another sex offender was also adjudicated as a sexually violent predator. Both sex offenders appealed. On a consolidated appeal, the Supreme Court held that the definition of sexually violent predator did not violate substantive due process, the definition of a sexually violent predator subject to civil commitment under the Act was not unconstitutionally void for vagueness, a sex offender who did not assert that the Act did not apply to his conduct was precluded from asserting a facial challenge based on a hypothetical application, civil commitment of sexually violent predators did not violate the prohibitions against double jeopardy or ex post facto laws, the clear and convincing evidence standard of proof did not violate substantive due process, and the evidence was sufficient to support adjudication of a convicted sex offender as sexually violent predator.

    Cases decided September 14, 2005

    Hix v. Commonwealth, Record No. 042717 (Court of Appeals). Justice Agee. Defendant was convicted of attempted indecent liberties with a minor and use of a computer to solicit a minor. The Court of Appeals denied the petition for appeal, and the Supreme Court affirmed. The Court held that the fact that Hix was communicating with an adult law enforcement officer posing as a child was not a defense to attempted indecent liberties with a minor, and the evidence was sufficient to support the conviction.
    Townsend v. Commonwealth, Record No. 042223 (Court of Appeals). Justice Agee. Defendant was convicted in the circuit court of capital murder, first-degree murder, and two related firearm offenses He appealed, and the Court of Appeals affirmed in an unpublished memorandum opinion. The Supreme Court concluded that the defendant had waived appellate review of his claim that the trial court erred in denying his motions to strike two prospective jurors for cause on ground that seating them would undermine public confidence in the judicial process because he had not addressed his argument on appeal to the trial court.
    Virginia Court of Appeals
    Criminal Law and
    Procedure Decisions

    Cases decided May 24, 2005

    Blackman v. Commonwealth, 45 Va. App. 633, 613 S.E.2d 460 (Circuit Court of the City of Chesapeake). Judge Kelsey. Defendant was convicted by a jury of first-degree murder and use of a firearm in the commission of a felony. The Court of Appeals held that his Confrontation Clause rights were not violated by the admission of testimony of a witness who testified to statements made by a co-defendant that allegedly incriminated defendant.
    Rhodes v. Commonwealth, 45 Va. App. 645, 613 S.E.2d 466 (Circuit Court of Louisa County). Judge Clements. Defendant's suspended sentences for malicious wounding and driving offenses were revoked by the circuit court after he violated the terms of the suspended sentence. The Court concluded that the trial court had the authority to re-suspend only seven years of the remaining nine-year balance on the sentence, and the order that the defendant serve two years active incarceration of remaining balance of nine years on the sentence was not an abuse of discretion.

    Thomas v. Commonwealth, 45 Va. App. 811, 613 S.E.2d 870 (Rehearing en banc). Upon reconsideration of the panel decision issued at 44 Va. App. 741, 607 S.E.2d 738 (2005), the majority opinion of the panel is adopted and the judgment of the trial court was affirmed. Judges Benton, Elder and Clements would reverse the trial court for the reasons stated in the dissenting panel opinion. Chief Judge Fitzpatrick agreed with the dissenters that the disputed evidence was improperly admitted, but believed the error was harmless.

    Case decided May 31, 2005

    Bristol v. Commonwealth, 45 Va. App. 673, 613 S.E.2d 480 (Petition for a Rehearing en banc). A rehearing en banc of the panel decision issued on May 5, 2005, at 45 Va. App. 534, 612 S.E.2d 244 was granted.

    Case decided June 7, 2005

    Hodges v. Commonwealth, 45 Va. App. 735, 613 S.E.2d 834 (Circuit Court of Halifax County). Judge Elder. Hodges was convicted of murder and the use of a firearm in the commission of murder. The Court held that thevictim's statement to a witness on day she disappeared that she was going to meet Hodges and "would be right back" was admissible under the state of mind exception to hearsay rule, the trial court did not abuse its discretion in admitting the victim's entire written confession to the police implicating Hodges in a marijuana distribution conspiracy, the sequential photographic lineup presented to a witness was not unduly suggestive, even if the witness's in-court identification of Hodges was irreparably tainted, it did not render the in-court identification testimony inadmissible, the trial court did not abuse its discretion by not granting a mistrial after the witness testified that she had previously seen Hodges with a gun, the evidence was sufficient to support the murder conviction under a principal or aiding and abetting theory, and the trial court's error in admitting the victim's statements about where she went to meet defendant on numerous occasions prior to the day she disappeared was harmless.
    Cases decided June 14, 2005

    Kromer v. Commonwealth, 45 Va. App. 812, 613 S.E.2d 871 (Circuit Court of the City of Richmond). Judge Frank. Kromer was convicted in a bench trial of 15 counts of misdemeanor possession of child pornography, and he appealed. The Court of Appeals held that evidence of knowing possession was sufficient to support conviction, as a matter of first impression, a finding of "possession" of child pornography, in the computer and Internet context, requires a finding that defendant intentionally sought out and viewed child pornography on Internet, knowing that images would be saved on his computer, and evidence of constructive possession was sufficient to support conviction.

    Orndorff v. Commonwealth, 45 Va. App. 822, 613 S.E.2d 876 (Upon Rehearing en banc). Chief Judge Fitzpatrick. Upon rehearing on the panel decision reversing the conviction in the circuit court, found at 44 Va. App. 368, 605 S.E.2d 307, the judgment of the trial court is reinstated. The defendant was convicted by a jury of murder in the second degree and the use of a firearm in the commission of murder. Upon rehearing, the Court decided that she was not entitled to a new trial on the ground of allegedly after-discovered evidence and credible evidence supported the trial court's finding that she was competent to be sentenced. Judge Clements filed a dissenting opinion in which Judges Benton and Elder joined.

    Cases decided June 21, 2005

    Hunt v. Commonwealth, 46 Va. App. 25, 614 S.E.2d 668 (Circuit Court of the City of Danville). Judge Benton. Hunt was convicted in the of grand larceny for unlawfully taking, stealing, and carrying away a winning state lottery ticket redeemable for $2,500 prize. The Court of Appeals held that insufficient evidence supported the grand larceny conviction, because Hunt was charged with common law larceny and there was no proof that the ticket itself was worth $200 or more.

    Peake v. Commonwealth, 46 Va. App. 35, 614 S.E.2d 672 (Circuit Court of Hanover County). Senior Judge Overton. Defendant's conviction for possession of marijuana with intent to distribute did not violate double jeopardy principles where he was convicted of simple possession in district court for a separate package of marijuana intended for his own use.

    Elisa Robinson v. Commonwealth, 46 Va. App. 24, 614 S.E.2d 667 (Petition for Rehearing en banc). The petition for rehearing is granted to the decision issued on May 17, 2005, found at 45 Va. App. 592, 612 S.E.2d 751.

    George Robinson v. Commonwealth, 46 Va. App. 23, 614 S.E.2d 667 (Petition for Rehearing en banc). The petition for rehearing is granted to the decision issued on May 17, 2005, found at 45 Va. App. 592, 612 S.E.2d 751.

    Case decided June 28, 2005

    In re Dicks, 46 Va. App. 44, 614 S.E.2d 677 (Petition for a writ of Actual Innocence). Dicks was convicted of distribution of cocaine, robbery, aggravated malicious wounding, and use of firearm in 1995 and he filed a petition for a writ of actual innocence. The Court held that certain newly discovered evidence was not material to establishing the petitioner's innocence of the crimes.Cases decided July 12, 2005

    In re Bowling, 46 Va. App. 50, 615 S.E.2d 489 (Petition for a Writ of Actual Innocence). Petitioner, who had been convicted of statutory burglary and grand larceny, sought writ of actual innocence. The Court of Appeals held that, in a matter of first impression, petitioner failed to establish previously unknown or unavailable evidence sufficient to justify issuance of writ of actual innocence.

    Wilson v. Commonwealth, 46 Va. App. 73, 615 S.E.2d 500 (Circuit Court of the City of Newport News). Judge Humphreys. Defendant was convicted, following a bench trial, of attempted rape, attempted forcible sodomy, and aggravated sexual battery, sexual battery, and indecent exposure. The Court of Appeals ruled that a letter the child victim wrote to her grandmother in which she described the abuse allegedly perpetrated upon her by defendant was admissible under the "recent complaint" exception to the hearsay rule, and the evidence was sufficient to support the convictions. The case was remanded to correct the judgment order.

    Case decided July 19, 2005

    White v. Commonwealth, 46 Va. App. 123, 616 S.E.2d 49 (Rehearing en banc). Upon rehearing en banc of the panel decision issued at 44 Va. App. 429, 605 S.E.2d 337, the court affirms the convictions. White pled nolo contendere to charges of first-degree murder and assault and battery on a police officer. The Court of Appeals held on rehearing en banc that lay witness testimony was not admissible to support the insanity defense, and the trial court did not abuse its discretion by not ordering that defendant be treated in a mental hospital rather than being sentenced to the Department of Corrections.Judge Elder dissented and filed a separate opinion in which Chief Judge Fitzpatrick and Judge Benton joined.

    Case decided July 26, 2005

    Epps v. Commonwealth, 46 Va. App. 161, 616 S.E.2d 67 (Circuit Court of the City of Petersburg). Judge Frank. The sheriff of the city of Petersburg was found guilty of three counts of criminal contempt and one count of civil contempt in connection with his duties at the courthouse and he appealed. The Court of Appeals decided that the trial court's error in allowing sitting a circuit court judge to testify at the contempt hearing was not harmless, the sheriff had proper notice that failing to have a deputy at the door of the courthouse violated some duty to provide security, superseding legislation did not relieve the sheriff from his duty of providing a deputy at the courthouse entrance, the sheriff violated a court order requiring the posting of a deputy at the front desk of the courthouse, and sufficient evidence supported the trial court's finding that the sheriff was in criminal contempt. However, the judgments were reversed and remanded because of the improper admission of the judge's testimony.Judge Elder filed an opinion concurring in part and concurring in the result. Judge Humphreys filed an opinion concurring in part and dissenting in part.

    Case decided August 2, 2005

    Logan v. Commonwealth, 46 Va. App. 213, 616 S.E.2d 744 (Circuit Court of the City of Danville). Judge Benton. Logan, who was resident in a boarding house in which a police officer conducted a warrantless search was convicted in a bench trial of possession of cocaine. The Court of Appeals held that Logan had a reasonable expectation of privacy in the stairs and hallway of the rooming house where he lived so as to implicate his right of protection against unreasonable searches and seizures, and the officer's mistaken identification of Logan as the suspect in whose name an existing arrest warrant was issued was not objectively reasonable as to purge any taints in the officer's warrantless search of Logan's residence. Judge Haley dissented and filed an opinion.

    Cases decided August 9, 2005

    Stevens v. Commonwealth, 46 Va. App. 234, 616 S.E.2d 754 (Rehearing en banc). Judge McClanahan. Upon rehearing of the panel decision rendered at 44 Va. App. 122, 603 S.E.2d 642, affirming the conviction, the full court did likewise. Defendant was convicted, after a jury trial, of aggravated involuntary manslaughter, and he appealed. The Court of Appeals held en banc that the Commonwealth was not required to comply with the statutory provision relating to driving under the influence prosecutions that required a motorist to receive form indicating how motorist could obtain an independent analysis of the blood sample taken under implied consent law, the defendant was not entitled to a proffered instruction that described three degrees of negligence, i.e., ordinary, willful, and criminal, and the evidence was sufficient to support the conviction. Judge Benton filed a dissenting opinion.
    Washington v. Commonwealth, 46 Va. App. 276, 616 S.E.2d 774 (Rehearing en banc). Judge Kelsey. Upon rehearing the matter decided by a panel at 44 Va. App. 157, 604 S.E.2d 92, the court affirmed the trial court. Defendant was convicted by a jury of malicious wounding after having been twice convicted of a violent felony, and committing wounding during commission of a felony. Upon rehearing en banc, the Court of Appeals held that recidivism evidence, which was required for enhanced punishment under the statute defining the effect of prior, separate acts of violence, was admissible during the guilt phase of the bifurcated jury trial. Judge Humphreys filed a concurring opinion, and Judge Benton filed a dissenting opinion in which Chief Judge Fitzpatrick joined.

    Cases decided August 16, 2005

    Hernandez-Guerrero v. Commonwealth, 46 Va. App. 366, 617 S.E.2d 410 (Circuit Court of Arlington County). Judge Kelsey. Defendant was convicted of lynching by mob, stabbing during the commission of a felony, and malicious wounding by a mob, and he appealed. The Court held that the trial court did not abuse its discretion in allowing a victim witness to remain in courtroom prior to testifying.
    Lynch v. Commonwealth, 46 Va. App. 342, 617 S.E.2d 399 (Circuit Court of the City of Norfolk). Judge Humphreys. Lynch was convicted following a jury trial of first-degree murder, statutory burglary, robbery, and three counts of using a firearm in the commission of a felony. The Court determined that his statement to a co-perpetrator, in which he asked him "Why you telling them what we just did," in addition to statements made in the preceding conversation between the co-perpetrator, the co-perpetrator's brother, and a witness discussing the victim's murder, were admissible under the adoptive admission exception to the hearsay rule. Judge Benton dissented and filed a separate opinion.

    Case decided August 23, 2005

    Wilson v. Commonwealth, 46 Va. App 408, 617 S.E.2d 431 (Rehearing en banc). Judge Humphreys. Upon rehearing the divided panel decision found in an unpublished memorandum opinion, the court affirms the trial court. Wilson was convicted in a bench trial of possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of a firearm while in possession of a controlled substance, and possession of a firearm by a convicted felon. The Court ruled that the trial court was not required to consider an unwritten plea agreement, that the trial judge was not required to recuse himself, and the evidence was sufficient to support the finding that Wilson was aware of the presence of controlled substances in his apartment and three vehicles. Judge Kelsey concurred in an opinion joined by Judges Bumgardner and McClanahan, Judge Clements concurred in part and dissented in part, and Judge Benton, J., dissented in an opinion joined in part by Chief Judge Fitzpatrick and Judges Clements and Elder.

    Cases decided August 30, 2005

    Epps v. Commonwealth (Petition for Rehearing en banc). The court granted the petition for rehearing en banc to the opinion issued by the panel at 46 Va. App. 161, 616 S.E.2d 67.

    Logan v. Commonwealth, Record No. 0852-04-3 (Petition for Rehearing en banc). The court grants the petition for rehearing en banc to the opinion issued by the panel at 46 Va. App. 213, 616 S.E.2d 744.

    Luginbyhl v. Commonwealth, Record No. 1333-04-4 (Circuit Court of Fairfax County). Senior Judge Annunziata. The defendant was convicted of driving while intoxicated (DWI), and he appealed. The Court determined that breath test results did not constitute hearsay, that an officer's statements on the breath test certificate attesting to the machine's good working order and the officer's valid license to operate machine constituted hearsay, a foundation showing that the officer was unavailable and that the defendant had a prior opportunity to cross-examine him were not required, and the admission of the officer's non-testimonial hearsay statements on the breath test certificate did not violate the defendant's Sixth Amendment right to confrontation. Judge Benton dissented with an opinion.

    Cases decided September 13, 2005

    Locklear v. Commonwealth, Record No. 0506-04-1 (Circuit Court of the City of Norfolk). Judge Benton. Ten months after Locklear was convicted of sexual battery he filed motions to set aside his convictions. The circuit judge denied the motions, and he appealed. The Court of Appeals decided that the trial judge lacked the authority to consider the defendant's motion that alleged that his guilty plea was not voluntarily, intelligently, or knowingly made, thetrial judge lacked the authority to consider defendant's motion that alleged his conviction should be vacated because his misdemeanor prosecution was commenced more than one year after the date of the alleged offense, and the Court was required to transfer the appeal to the Virginia Supreme Court regarding subject matter jurisdiction.

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

    United States v. Johnson, 410 F.3d 137 (June 8, 2005). Judge Motz. Defendant was convicted, pursuant to guilty plea, of possession of a firearm by a convicted felon and operation of a motor vehicle while under the influence of drugs. Johnson appealed, challenging the denial of his suppression motions and seeking to vacate his sentence. The Court of Appeals concluded that the community-caretaking exception to the warrant requirement applied to police officer's search of glove compartment of defendant's car, that the search of the glove compartment was not a pretext for a criminal investigation, that even if the blood test performed at the Armed Forces Institute of Pathology to test Johnson's impairment was performed by military personnel in violation of the Posse Comitatus Act, the suppression of the test results was not an appropriate remedy, and the Supreme Court's issuance of Booker after the plea agreement containing an appeal waiver was reached did not render the guilty plea unknowing or involuntary. The case was affirmed in part and dismissed in part.
    Bejarano-Urrutia, 413 F.3d 444 (July 5, 2005). Chief Judge Wilkins. An alien petitioned for judicial review of a final order of removal issued by the Board of Immigration Appeals. The Court of Appeals held that the alien's conviction for involuntary manslaughter, under Virginia law, was not a "crime of violence," and thus was not an "aggravated felony" warranting removal. The petition was granted and the case remanded. Judge Niemeyer filed a dissenting opinion.

    United States v. Taylor, 414 F.3d 528 (July 11, 2005). Senior Judge Hamilton. Following his conviction for cocaine conspiracy, Taylor moved to vacate the sentence imposed following the grant of the government's motion to reduce the sentence based upon substantial assistance to government in investigating drug trafficking. The district court dismissed the motion and defendant appealed. The Court of Appeals vacated the order and remanded. On remand, the district court granted the motion and reentered the judgment of conviction. Taylor appealed, and the Court of Appeals held that the district court's judgment granting his motion to vacate the amended 235 month sentence imposed following the conviction and imposed new 141 month sentence, Taylor was precluded from arguing in the motion to vacate the sentence that sentence imposed following conviction violated his Sixth Amendment right to jury trial, he did not have a Sixth Amendment right to the effective assistance of counsel in the government's post-conviction, post-direct appeal motion for reduction of sentence, equal protection and due process guarantees did not provide him a constitutional right to counsel in the government's post-conviction, post-direct appeal motion for reduction in sentence, and thedistrict court did not abuse its discretion in failing to conduct an evidentiary hearing on the government's motion to reduce the previously imposed sentence.

    United States v. Collins, 415 F.3d 304 (July 12, 2005). District Judge Titus. Defendant was convicted following a jury trial of conspiracy to distribute 50 or more grams of a mixture containing a detectable amount of cocaine, and he appealed. The Court of Appeals ruled that any improper vouching in the prosecutor's closing argument was not reversible error, the identities of non-testifying confidential informants were not material evidence under Brady, defendant's Sixth Amendment right to a trial by jury was violated by the imposition of a sentence based on the statutory mandatory minimum for distributing 50 grams or more of cocaine base without a jury determination of the amount of drugs attributable to defendant, and for purposes of criminal history category under sentencing guidelines, the burden was on the defendant to raise an inference of invalidity of the prior convictions

    United States v. Hedgepeth, 418 F.3d 411 (August 12, 2005). Judge King. Defendant was convicted of conspiracy to commit extortion, and attempting to commit extortion, in violation of the Hobbs Act, and making false statements to federal officers. The Court of Appeals ruled that a government witness's motive for approaching defendant, as city council member, with a bribe offer was not relevant, any error in the admission of the government witness's testimony was harmless, admission of defendant's prior consistent written statement was not required under the doctrine of the completeness exception to the hearsay rule, and the defendant was not entitled to a continuance of the sentencing hearing.

    United States v. Moye, Case No. 04-4549 (September 9, 2005). Judge Gregory. Moye was convicted of being a felon in possession of a firearm, aiding and abetting the possession of a firearm by a felon, possession of stolen firearms, and aiding and abetting the possession of stolen firearms. The Court held that the evidence was insufficient to prove that Moye constructively possessed the firearms that were
    stolen from a sporting goods store, as required to support the convictions, the "aiding and abetting" jury instruction was not warranted with respect to the charge for being a felon in possession of a firearm, submission of an "aiding and abetting" jury instruction with respect to the charge of being a felon in possession of a firearm was not harmless error, the Court of Appeals would use a prejudicial error standard to review the district court's decision to allow the prosecutor to mention defendant's flight from the police during closing argument, the district court abused its discretion in allowing the prosecutor to comment on defendant's flight from police, and the evidence was insufficient to support the conviction for aiding and abetting the possession of stolen firearms. Senior Judge Hamilton filed a dissenting opinion.

     

     

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