Virginia State Bar

An agency of the Supreme Court of Virginia

Adjust Text Size:   A   A

Criminal Law

A Section of the Virginia State Bar.

March 2006 Criminal Law News

Volume 35 March, 2006 Number 5

36th Annual Criminal Law Seminar Draws Well; Paul Ebert Receives Carrico Award

Despite increased competition from other criminal law programs, including the Chief Justice’s Indigent Defense Seminar, the 36th Annual Criminal Law Seminar was another success, with highly rated speakers and innovative topics for yet another year. A total of 640 persons attended the live sessions in Charlottesville and Williamsburg, and another 180 were pre-registered for the videotaped replays scheduled for March and April.

As in the past, Professor Ron Bacigal was the first speaker on the topic of “Recent Developments in Criminal Law and Procedure.??? His lecture was followed by a panel presentation on “Handling Criminal Cases Involving Gangs,??? with Alexandria lawyer Nina Ginsberg and Arlington police officer and gang expert Rick Rodriguez in both locations, and David Baugh in Charlottesville and Alex Levay in Williamsburg.

The final morning segment was the increasingly popular interactive presentation on “Objections in Federal and State Criminal Cases??? with U.S. District Judge Gerald B. Lee in Charlottesville, Judge Clifford R. Weckstein, of the Roanoke City Circuit Court, in Williamsburg, and Fairfax Circuit Judge Stanley P. Klein in both locations. The luncheon speakers were Virgina lawyer Ed MacMahon, the defense attorney in the Moussaoui case, in Charlottesville, and Georgia “super lawyer??? Bobby Lee Cook in Williamsburg. The frst afternoon presentation was the regular discussion of “Ethical Issues in the Practice of Criminal Law,??? with Fairfax lawyer Rodney G. Leffler and United States Magistrate Judge Dennis W. Dohnal, this year using an interactive format.

Paul Ebert Accepts the Carrico Award

The final segment of the program was on “Jury Selection in Criminal Cases??? with Dr. Jeffrey T. Frederick, Director of Jury Research Services for the National Legal Research Group, and Richmond defense lawyer Craig S. Cooley speaking in both locations, and they were joined by Hampton Commonwealth’s Attorney Linda D. Curtis in Charlottesville and Martinsville Commonwealth’s Attorney Joan Ziglar in Williamsburg for a demonstration of voir dire.

A highlight of the Seminar in Williamsburg was the presentation of the Harry L. Carrico Professionalism Award to Prince William County Commonwealth’s Attorney Paul B. Ebert. Ebert is a graduate of Virginia Tech and the George Washington University Law School. He has served as Commonwealth’s Attorney for Prince William County since 1980, and he was the first Chair of the Commonwealth’s Attorneys Training and Services Council and served as President of the Commonwealth’s Attorneys Association and the Prince William Bar Association. He is a past Chair of the Criminal Law Section of the Bar, and has frequently served as a Special Prosecutor in a number of jurisdictions around the Commonwealth.

In addition, the Section Board of Governors presented a resolution honoring Professor Roger Groot for his many years of service to the criminal bar in Virginia to his wife, Ellen Groot.

Chairman's Letter

“I will not rest until every German sees that it is a shameful thing to be a lawyer.??? Adolph Hitler

There was no shame in our annual seminar this year. In both Charlottesville and Williamsburg lawyers dedicated their time and their experience to help the rest of us serve justice and the public better. Much appreciation is due to all of our excellent presenters, including the non-lawyers, and especially to John Lichtenstein, this

year’s program chair. Your Board of Governors looks forward to receiving the report of your evaluation of the program. I assure you the evaluations are reviewed and incorporated into future seminar planning to ensure the continued quality and relevance of our seminars.

Among the highlights at this year’s seminar was the award of the prestigious Carrico Award to former section chair (‘87-‘88) and frequent special prosecutor/ombudsman Paul Ebert. Again, well done and well deserved, Paul.

Speaking of former chairs, congratulations to Bill Petty of Lynchburg, section chair in ’96-’97, who has been selected by the General Assembly to go to the Court of Appeals.

And, speaking of the General Assembly . . . as I write this, the session has ended without a budget. The session reconvenes on March 27th. The budget concerns impacting most directly on our section members are still not fully settled. Budget issues will go to a conference committee made up of Senators Chichester, Wampler, Stosch, Colgan, and Houck, and Delegates Callahan, Putney, Hamilton, Cox, Wardrup, and Joannou. As I understand it, the present posture of the budget and amendments thereto is that caps will be waived for Class Two felonies for court appointed attorneys, and that additional money is in the Senate’s budget to fund fee caps that were set but never funded. There is also funding for an additional 32 public defenders, to be added, if passed, to the 16 positions proposed by the Governor’s budget. The Senate wants to provide funding for prosecutors to catch up on their statewide deficit of 170 attorneys plus additional admin and paralegal personnel within three years, versus 6 years in the governor’s budget. Those numbers are based on state staffing standards that rely on felony sentencing events only. Misdemeanor, juvenile, and misdemeanor appeal prosecutions are and continue to be unfunded.

We all hope that the conferees will see the importance of these and other items to the cause and the perception of justice in Virginia. We can put wings to those hopes by contacting the conferees. I hope many of you took advantage of the information on contacting members of the General Assembly that was provided at our seminars this year. If you made contact during the session, thanks. Do it again. For the rest of you, there is no time like now.

When Hans Frank, Hitler’s personal lawyer and ranking attorney in the Third Reich suggested in a speech that Germany should have a constitutional system of government, Hitler stripped him of all his law-related positions. Frank was no hero. He was a war criminal. But he was right about constitutions. Governments are most trustworthy when bounded by and held accountable to the parameters of a constitution. Our Constitution is the best yet devised. Our section members defend and advocate its provisions, particularly the Bill of Rights, on a daily basis. The only shame involved would be in failing to do so.

Harvey L. Bryant


Virginia Supreme Court Criminal Law and Procedure Decisions

Cases decided January 13, 2006

Commonwealth v. Cary, 271 Va. 87, 623 S.E.2d 906 (Court of Appeals) (Justice Koontz). The Court of Appeals reversed Cary’s convictions by a jury in the Circuit Court of the City of Norfolk of first-degree murder and the use of a firearm in the commission of a felony in an unpublished opinion, and the Commonwealth appealed. The Supreme Court agreed with the Court of Appeals that his appellate argument that the trial court erred in failing to provide a jury instruction on self-defense was not procedurally barred, and that the evidence in the record was sufficient to warrant a jury instruction on the defense of self-defense. Justice Agee filed a dissenting opinion in which Justice Kinser joined.

Commonwealth v. Neely, ___ Va. ___, ___ S.E.2d ___ (Court of Appeals) (Per Curiam). The Court of Appeals acted correctly in reversing the decision of the trial court that it did not have jurisdiction to consider Neely’s motion pursuant to Virginia Code § 19.2-303 to modify his two-year sentence while he was still in federal custody and had not entered the custody of the Department of Corrections. See 44 Va. App. 239, 604 S.E.2d 733 (2004), aff’s upon rehearing en banc, 45 Va. App. 399, 611 S.E.2d 627 (2005). The majority decision of the panel is correct that the trial court still has jurisdiction to entertain Cary’s motion under the statute.

Cox v. Geary, 271 Va. 141, 624 S.E.2d 16 (Circuit Court of the City of Richmond) (Justice Kinser). After obtaining compensation from the Commonwealth, Cox, who was wrongfully imprisoned for 11 years, filed a motion for judgment alleging legal malpractice claims against attorneys who represented him at criminal trial and on appeal. The circuit court found that he suffered one indivisible injury for which he had but one claim or cause of action, and dismissed the claims with prejudice. The Supreme Court agreed that Cox suffered a single, indivisible injury, that his trial and appellate attorneys were not joint tortfeasors with Commonwealth, and that, under the common law, his unconditional release of the Commonwealth from liability pursuant to a recovery barred a second recovery against the attorneys.
Foster v. Commonwealth, 271 Va. 235, 623 S.E.2d 902 (Court of Appeals) (Senior Justice Compton). Foster was convicted in the circuit court on a misdemeanor bad-check charge, and the Court of Appeals affirmed the conviction on appeal, 44 Va.App. 574, 606 S.E.2d 518 (2004). The Supreme Court agreed with the Court of Appeals that her misdemeanor bad-check charge was a petit larceny, and thus, the offense was subject to a five-year statute of limitations, and not the general one-year limitation for misdemeanors.

Jenkins v. Director of the Virginia Center for Behavorial Rehabilitation, 271 Va. 4, 624 S.E.2d 453 (Petition for a Writ of Habeas Corpus) (Chief Justice Hassell). Jenkins, who had been adjudicated a sexually violent predator under the Sexually Violent Predators Act, filed a petition for a writ of habeas corpus in the Supreme Court against the director of the state's Center for Behavioral Rehabilitation. After placing the proceeding on its privileged docket, the Court held that Jenkins was entitled to file his petition for writ of habeas corpus with clerk of the Court, that the circuit court that heard his probable cause hearing and adjudicated his status as a sexually violent predator had the subject matter jurisdiction to make these determinations, he had the constitutional right to the effective assistance of counsel during a proceeding in which he was adjudicated a sexually violent predator, and on appeal from that adjudication, that the failure of counsel to perfect an appeal from his adjudication as a sexually violent predator was deficient, and it would be presumed that counsel's deficient performance prejudiced him, and, thus, He would be granted a belated appeal.

Case decided January 19, 2006

In re Robert F. Horan, Jr., 271 Va. ___, ___ S.E.2d ___ (Petition for a Writ of Mandamus and a Writ of Prohibition). In a capital murder case, the Circuit Court of Fairfax County granted the defendant's motion to prohibit the death penalty, in effect precluding Commonwealth's Attorney from seeking death penalty in the event defendant was found guilty of capital murder because of violations of the Vienna Convention on Consular Relations and Optional Protocol. The Commonwealth's Attorney filed petitions for a writ of mandamus and a writ of prohibition with the Supreme Court, seeking to prohibit the trial judge from determining appropriateness of death penalty. The Supreme Court held that mandamus was an appropriate remedy when a trial judge attempted to interfere with the prosecutorial discretion of a Commonwealth's Attorney by granting a defendant's pre-trial motion to prohibit death penalty. The petition for a writ of mandamus was granted, and the petition for a writ of prohibition was dismissed.

Virginia Court of Appeals Criminal Law and Procedure Decisions

Cases decided January 10, 2006

Colbert v. Commonwealth, 47 Va. App. 390, 624 S.E.2d 108 (Circuit Court of Bedford County) (Judge McClanahan). Colbert was convicted on his plea of guilty of computer solicitation for sex with a minor, and, as part of his sentence, he was required to register as a sex offender. The Court of Appeals held that he was required to register as a sex offender under the Sex Offender and Crimes Against Minors Registry Act, even though, in committing his offenses, he actually had been communicating with an undercover police officer posing as a minor, rather than an actual minor.

Molina v. Commonwealth, 47 Va. App. 338, 624 S.E.2d 83 (Circuit Court of Fairfax County) (Senior Judge Annunziata). Defendant was convicted of rape and forcible sodomy, and he appealed. The Court held that the trial court's error in giving a jury instruction regarding the rape charge that combined alternative theories of “force??? and “incapacity??? as a basis for conviction was harmless, that any error in the trial court's instruction on the rape charge that required the jury to find that the sexual intercourse defendant engaged in with victim was against her will and without consent in addition to finding that she was mentally or physically incapacitated, did not prejudice him, and thus was harmless, that the evidence supported giving a jury instruction that allowed a rape conviction to be based on the theory that defendant had sexual intercourse with victim through use of her mental incapacity, that proffered testimony from an expert in psychopharmacology that the victim's conduct at the time of the incident was consistent with or caused by bipolar disease or any of its phases was not admissible, that the trial court properly excluded testimony from the expert in psychopharmacology describing bipolar disease and its various phases to establish that victim's conduct during the rape incident was consistent with the disorder, and the evidence was sufficient to support the convictions.

Wyatt v. Commonwealth, 47 Va. App. 411, 624 S.E.2d 118 (Circuit Court of Loudoun County) (Judge Elder). Wyatt was convicted, following a jury trial, of aggravated involuntary manslaughter, felony hit-and-run, and driving under the influence while underage. The Court held that the evidence at trial was sufficient to support the finding that defendant's behavior causing fatal vehicular accident constituted criminal negligence, as required to support the aggravated involuntary manslaughter conviction.

Cases decided January 17, 2006

Hill v. Commonwealth, 47 Va. App. 442, 624 S.E.2d 666 (Circuit Court of Fauquier County) (Judge Benton). The Hills were convicted by a jury of refusing to submit to a warrantless inspection of their goat cheese manufacturing facilities, and they appealed. The Court of Appeals held that the warrantless search of the Hills’ goat cheese manufacturing facility was reasonable, and they did not have a greater expectation of privacy than a purely commercial operation, for a manufacturing operation within the curtilage of their home.

Michels v. Commonwealth, 47 Va. App. 461, 624 S.E.2d 675 (Circuit Court of Fairfax County) (Chief Judge Fitzpatrick). Defendant was convicted of obtaining money by false pretenses. On appeal, the Court ruled that the admission of certified documents from Delaware Secretary of State indicating nonexistence of trust company which victim paid $100,000 to create and incorporate and the lack of a license to do business of the company to whom victim wrote checks at defendant's direction did not violate right of confrontation, and those documents fell within the business records exception to the hearsay rule.

Cases decided January 24, 2006

In re Carpitcher, 47 Va. App. 513, 624 S.E.2d 700 (Petition for a Writ of Actual Innocence). Petitioner initially sought a writ of habeas corpus, relating to his convictions for aggravated sexual battery, taking indecent liberties with a minor, and animate object sexual penetration. The circuit court denied the petition and the Supreme Court denied a petition for appeal. Thereafter, petitioner sought a writ of actual innocence based upon newly-discovered non-biological evidence, alleging the victim had recanted her allegations of inappropriate sexual touching. The circuit court, acting pursuant to an order from the Court of Appeals, held an evidentiary hearing and made findings of fact relating to two certified questions. Based on these findings, the Court of Appeals held that, as matters of first impression, petitioner did not establish that the victim’s recantation of her testimony at trial was true, and the victim’s newly-discovered lack of credibility in light of her recantation, when considered along with all of the other evidence in the case, did not establish that the victim perjured herself at trial. Thus, the petition was denied.

In re Johnson, 47 Va. App. 503, 624 S.E.2d 696 (Petition for a Writ of Actual Innocence). Johnson, who had been convicted of capital murder and conspiracy to commit capital murder, filed a petition for a writ of actual innocence based upon non-biological evidence in the Court of Appeals, asserting that a witness for the Commonwealth had lied during his testimony at trial. The Attorney General filed a motion to dismiss, which the Court of Appeals denied, and remanded the matter for certified findings of fact regarding issues in dispute. Following the submission of certified findings of fact, the Court held that, in a matter of first impression, Johnson was not entitled to a writ of actual innocence absent proof by clear and convincing evidence that no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

Cases decided January 31, 2006

Bristol v. Commonwealth, Va. App. , S.E.2d (Rehearing en banc) (Judge Clements). Bristol was convicted, after a bench trial, of driving under the influence of alcohol (DUI) and maiming another person while driving under the influence of alcohol. The Court of Appeals reversed the judgment, 45 Va.App. 534, 612 S.E.2d 244, and the Commonwealth petitioned for rehearing. On rehearing en banc, the Court held that the police had probable cause to arrest Bristol, he was validly arrested prior to the taking of the blood sample, and thus the certificate of analysis was admissible, the officer asserted his lawful authority to arrest Bristol, Bristol submitted to the officer’s assertion of authority to arrest him, and his arrest was effectuated the moment he submitted to the officer’s authority. Judge Benton dissented in an opinion in which Judge Elder joined.

Robinson v. Commonwealth, 47 Va. App. 533, 625 S.E.2d 651 (Rehearing en banc) (Judge Humphreys). The Robinsons were convicted of contributing to the delinquency of a minor by serving alcohol at a teenage party. The Court of Appeals affirmed the convictions at 45 Va.App. 592, 612 S.E.2d 751, and they sought rehearing en banc. Hearing the case en banc, the Court of Appeals concluded that the defendants extended to the public an implied invitation to enter their driveway and front sidewalk of their premises, a police officer did not exceed scope of defendants’ implied invitation to enter the driveway and front sidewalk of their premises, and the police officer who was lawfully present on their driveway had sufficient probable cause and exigent circumstances to justify a warrantless entry into defendants’ backyard. Judge Baumgardner concurred and filed a separate opinion in which Judge McClanahan joined, and Judge Elder concurred in part, dissented in part, and filed a separate opinion.

Cases decided February 7, 2006

Schneider v. Commonwealth, Va. App. , S.E.2d (Circuit Court of the City of Virginia Beach) (Judge Haley). Schneider was convicted, following a bench trial, of rape. The Court of Appeals determined that the finding that the alleged victim was unavailable, as required for admission of her preliminary hearing testimony at trial, was not an abuse of discretion.

Young v. Commonwealth, 47 Va. App. 616, 625 S.E.2d 691 (Circuit Court of the City of Danville) (Judge Frank). Young was convicted of armed robbery, and he appealed. The Court of Appeals ruled that his statements in a videotaped confession regarding his commission of other, unrelated crimes were not admissible, that the error that resulted from admitting such statements could not be cured by cautionary instructions, and the error in admitting the statements was harmless as to his guilt, but not harmless as to the sentence imposed on him. Judge Humphreys concurred in part, dissented in part, and filed a separate opinion.

Cases decided February 21, 2006

Hill v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___ (Circuit Court of York County) (Judge Humphreys). Defendant pleaded guilty to possession of oxycodone, and he appealed. The Court of Appeals held that by entering a guilty plea which was voluntary, knowing and intelligent, rather than a conditional guilty plea, defendant waived his right to appeal the denial of his suppression motion.

Parker v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___ (Petition for Rehearing en banc). The Commonwealth’s Petition for Rehearing en banc is granted to the judgment of the court entered on January 10, 2006, and the case is set down for briefs and argument.

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

Frazer v. South Carolina, 430 F.3d 696 (Dec. 8, 2005) (Judge Duncan). The state prisoner, who was convicted pursuant to his guilty plea of trafficking and possessing a weapon during the commission of a crime of violence, petitioned for writ of habeas corpus. The district court granted the petition, and the state appealed. The Court of Appeals affirmed and held that the rule of Roe v. Flores-Ortega that counsel's duty to consult with the defendant generally requires counsel to discuss with the defendant whether to pursue an appeal, was not a “new constitutional rule??? under Teague v. Lane, the state postconviction court’s rejection of petitioner’s claim that his Sixth Amendment right to effective assistance of counsel was violated when his counsel failed to consult with him regarding the possibility of appeal was an unreasonable application of Strickland and its progeny, so as to warrant federal habeas relief, the affidavit that petitioner signed, just prior to pleading guilty, acknowledging his right to appeal, did not relieve defense counsel of his Sixth Amendment obligation to consult with petitioner regarding an appeal, and petitioner demonstrated prejudice, as required to establish an ineffective assistance of counsel claim, from his counsel's failure to consult with him regarding the possibility of an appeal.

United States v. Nunez, 432 F.3d 573 (Dec. 21, 2005) (Judge Traxler). The co-defendants were convicted of conspiracy to possess with intent to distribute and distribution of cocaine and heroin, possession with intent to distribute and distribution of cocaine and heroin, and attempted possession with intent to distribute cocaine and heroin. The Court of Appeals ruled that the evidence established existence of single drug conspiracy and the district court abused its discretion in permitting the government to reopen its case after summation and after jury began deliberations to present report summarizing defendant's interview.

In re Wray, 433 F.3d 376 (Dec. 29, 2005) (Judge Luttig). In an attorney disciplinary proceedings, the attorney was disbarred from practice before the district court on the grounds that he committed a “serious crime??? by willfully failing to pay his income taxes, and he appealed. The Court of Appeals determined that the attorney’s misdemeanor offense of willful failure to pay income taxes did not constitute a “serious crime??? within the definition of the Federal Disciplinary Rule.
United States v. Rodriguez, 433 F.3d 411 (Jan. 3, 2006) (Judge King). Defendant pled guilty to unlawfully entering the United States after having been deported, following an earlier conviction for an aggravated felony. The Court of Appeals held that the defendant was prejudiced by district court’s statutory Booker error in treating the Sentencing Guidelines as mandatory.

United States v. Baldovines, 434 F.3d 233 (Jan. 9, 2006) (Judge King). Defendant was convicted of three drug offenses and one firearms offense. The Court of Appeals ruled that an ineffective assistance claim could not be addressed on direct appeal, the record demonstrated that defendant had been involuntarily medicated with antipsychotic drugs solely for purpose of rendering him competent for sentencing, rather than for his own safety, but the district court’s plain error in medicating defendant against his will did not seriously affect fairness, integrity, or public reputation of judicial proceedings.

United States v. Rizzi, 434 F.3d 669 (Jan. 9, 2006) (Judge Niemeyer). Rizzi was charged with being a felon in possession of firearms and he moved to suppress the evidence. The district judge granted the motion and the government appealed. Court held that the statute which applies to federal narcotics searches specifically applies to searches for narcotics and when a search warrant involves violations of drug crimes, the warrant can be served day or night so long as the warrant itself is supported by probable cause. The district court was reversed.

United States v. Clark, 434 F.3d 684 (Jan. 12, 2006) (Judge Luttig). Defendant pled guilty to conspiring to distribute crack cocaine. The Court of Appeals held that at sentencing, district court either failed to consider or considered improperly the need to avoid unwarranted sentencing disparities among federal defendants.Judges Motz and King concurred and filed opinions.

United States v. Fitzgerald, 435 F.3d 484 (Jan. 13, 2006) (Judge Shedd). Defendant was convicted pursuant to his plea of guilty of failure to appear at sentencing, and he appealed his sentence. The Court of Appeals held that the statutory enhancement for committing crime while on release applied to offense of failure to appear, the rule of lenity did not apply, and the imposition of an enhancement did not violate double jeopardy.

Short v. Smart, 436 F.3d 422 (Feb. 2, 2006) (Judge Wilkins). The wife and administrator of the estate of a detainee who committed suicide in jail brought a § 1983 action against the county and sheriff’s deputies alleging deliberate indifference to substantial risk that detainee would commit suicide. The district judge denied the defendants’ motion for summary judgment on qualified immunity grounds. The Court of Appeals held that the jailers who placed the detainee in a cell under video surveillance were entitled to qualified immunity, but the jailer who observed the detainee in the cell by video surveillance was not entitled to qualified immunity. Judge Gregory dissented in part, concurred in part, and filed an opinion.

Vinson v. True, 436 F.3d 412 (Feb. 1, 2006) (Judge Motz). A Virginia prisoner petitioned for a writ of habeas corpus after he had been convicted of capital murder, object sexual penetration, abduction with intent to defile, and carjacking and his convictions were affirmed on appeal, 258 Va. 459, 522 S.E.2d 170. The federal district court denied the petition. Amending and superseding its prior opinion, 432 F.3d 310, the Court of Appeals held that the petitioner was not entitled to an evidentiary hearing on the question of whether his trial counsel labored under a conflict of interest because lead counsel was being sued for employment discrimination by his “second chair??? counsel, he failed to demonstrate cause for his procedural default of his conflict of interest claim, barring habeas review, he was not deprived of the effective assistance of counsel as result of any conflict of interest, counsel’s failure to present an argument that he lacked the requisite intent to defile did not deprive him of the effective assistance of counsel, counsel did not fail to investigate and present mitigation evidence in sentencing phase, as would constitute ineffective assistance of counsel, counsel did not deprive him of the effective assistance of counsel in cross-examining the prosecution’s expert, and the prosecution’s disclosure that one of its grand jury witnesses perjured herself was sufficient to satisfy the requirements of Brady.

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