Virginia State Bar

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Criminal Law

A Section of the Virginia State Bar.

November 2005 Criminal Law News

Volume 35 November, 2005 Number 2

  • Moussaoui Defense Lawyer Ed MacMahon to Speak at Charlottesville Seminar Luncheon

    The luncheon speaker for the first session of the 36th Annual Criminal Law Seminar to be held in Charlottesville on Friday, February 3, 2006, will be Middleburg lawyer Edward B. MacMahon, Jr., currently involved as defense lawyer to Zacarias Moussaoui, charged with assisting the 9/11 conspirators.

    MacMahon, a sole practitioner since 1989, has also represented Ali Al-Timimi in the United States District Court for the Eastern District of Virginia, on charges of solicitation of conspiracy to wage war and firearms charges. He has also been involved in a number of high profile criminal and business fraud cases.

    He is an alumnus of the University of Virginia and the Tulane University Law School, and he served as a law clerk to United States District Judge Claude M. Hilton, a former chair of the Criminal Law Section. He then spent three years as an associate with Heron, Burchette, Ruckert & Rothwell in Washington, D.C., where he was engaged in white-collar criminal and complex civil litigation.

    MacMahon is admitted to practice in state and federal courts in Virginia and the District of Columbia, and before the U.S. Supreme Court and the Court of Military Appeals. He is also a member of the Fourth Circuit Judicial Conference, the Federal Bar Association, and the National Association of Criminal Defense Lawyers, where he is a committee leader of the Military Tribunals and Terrorism Committee.

    The Seminar will be held in Charlottesville on February 3rd at the Doubletree Hotel on Route 29 north of the city, and the following Friday, February 10th, at the Williamsburg Marriott-Kingsmill on Route 60 east of the city. The registration brochures will be sent out later in the fall, and the registration form should be returned promptly to ensure a place at the program, especially in Williamsburg. Another outstanding luncheon speaker will be announced for the Williamsburg session in December, and a varied program for a diverse audience will be released at that time as well. However, annual favorites, such as Professor Ron Bacigal capsuling recent developments and Judge Dennis Dohnal and Rod Leffler on ethics are back in 2006. Section members receive a discount on registration for the Seminar that covers the cost of membership for the year.

  • Virginia Criminal Bar Loses Two Good Friends

    Just before this Newsletter went to press, two long-time friends of the Criminal Law Section passed away. Roger Groot, Class of 1975 Alumni Professor of Law at Washington and Lee University, passed away on Saturday, November 12th. He has been a major figure in Virginia criminal law generally, and in capital defense in particular, for more than 30 years. He has spoken on several occasions at the Section's annual Criminal Law Seminar, and this past February he delivered a ringing indictment of the state's delivery of indigent defense services.

    The other friend was Joe Kaestner, who passed away on November 16th in Richmond. Joe, who had served as a prosecutor in New Jersey and Richmond, had practiced criminal law in the Richmond area for many years. He contributed several articles on criminal law topics to this Newsletter, including one published in this issue which he submitted last this past Summer. Its publication is a tribute to his scholarship and dedication.

    Roger Groot was a graduate of Vanderbilt University and the University of North Carolina Law School, and he served six years in the United States Marine Corps. He joined the W&L faculty in 1973, after teaching two years at the University of Georgia. He directed the Virginia Capital Case Clearinghouse at W&L for five years, and he personally tried several high profile capital cases.

    Joe Kaestner was a graduate of St. John-Fisher College and the Fordham Law School. He served as an Assistant Attorney General in New Jersey and Virginia, and was a Deputy Commonwealth's Attorney in Richmond before entering private practice.

  • Chairman's Letter

    They have very few laws. One of their great complaints against other countries is that, although they've already got books and books of laws and interpretations of laws, they never seem to have enough. What's more, they have no barristers to be over-ingenious about individual cases and points of law. They think it better for each man to plead his own cause, and tell the judge the same story as he'd otherwise tell his lawyer.

    Written in 1516 by lawyer-legislator Sir Thomas More in Utopia.

    The recent election cycle in Virginia, as usual, had many candidates proposing statutory and procedural changes in the criminal law. That fact is a continuous reinforcement of the public significance of the field of law in which our section members practice. We know that there will be statutory and procedural changes in each session of the General Assembly. Elements of proof will be added, deleted or refined, punishments for some offenses increased, and "new" crimes codified. Legislative proposals this session will range from sexual predator offenses to driving on a suspended license.

    These changes present challenges which our section is positioned to help the practitioner meet through our annual seminars in February and our summer Annual Meeting program. Though I presume unintentional, such proposals potentially impact caseload and funding issues for public defenders, court-appointed counsel and prosecutors. As former misdemeanors become felonies, as mandatory minimums spread through the Code, the number of hearings, motions, trials and appeals increase.

    Even without such changes, funding is a major issue. Last month, I wrote the Governor on behalf of our section seeking increased funding in his budget for public defenders and court appointed counsel. Virginia State Bar President Philip Anderson also wrote the Governor in that regard. Commonwealth's Attorneys too are asking for state funding to enable them to meet minimum staffing standards set by the State Compensation Board. We can all agree that fair and adequate funding is necessary to assure that publicly funded representation in the courtroom is meaningful and competent for all Virginians.

    In the non-Utopian world, Sir Thomas More's courageous political and religious convictions led to charges of treason. Convicted, he was beheaded. He had represented himself.

    Harvey L. Bryant


    The late Joseph W. Kaestner, Esq.
    Kaestner and Associates, P.C.

    In the past several years the Legislature has enacted a number of statutes making juvenile adjudications for conduct that would be a crime if committed by an adult, predicate offenses. Va. Code Ann. § 18.2-308.2 is one of them. It provides:

    It shall be unlawful for ¼ (ii) any person under the age of 29 who was found guilty as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult ¼ to knowingly and intentionally possess or transport any firearm ¼.

    Any person who violates this section shall be guilty of a Class 6 felony.

    However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall not be eligible for probation, and shall be sentenced to a minimum, mandatory term of imprisonment of five years.

    Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony shall not be eligible for probation, and shall be sentenced to a minimum, mandatory term of imprisonment of two years¼.

    One thing is absolutely clear - as a matter of fact in Virginia it is a matter of constitutional law - an adjudication in juvenile and domestic relations court can never be a felony conviction.

    An adult charged with a felony is tried in circuit court. There he has a constitutional right to trial by jury. A juvenile tried in juvenile court does not under either the Virginia or United States Constitutions. McKeiver v. Pennsylvania, 403 U.S. 528 (1971). The Virginia Constitution goes further and says that such trials, that is trials in Juvenile and Domestic Relations Court, are for "offenses not felonious."

    The Code of Virginia carries this constitutional provision into the Code's classification of criminal offenses. Va. Code Ann. § 18.2-8 categorizes crimes by the types of punishment that apply:

    Felonies, misdemeanors and traffic infractions defined. - Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in a state correctional facility are felonies; all other offenses are misdemeanors. Traffic infractions are violations of public order as defined in § 46.2-100 and not deemed to be criminal in nature.

    The Code's approach is to categorize felonies and misdemeanors by the types of punishment each may bring. Juveniles tried in juvenile and domestic relations district courts cannot be sent to adult state correctional facilities.

    Given the statutory and constitutional definitions of felonies and misdemeanors, one would think that juvenile offenses were not felonies in Virginia. If they are not felonies then "any person under the age of 29 who was found guilty as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult ¼ [who] knowingly and intentionally possess[es a}¼. firearm ¼." has committed a Class 6 felony. He is subject to the penalty range for that offense.

    The predicate offense is not a conviction "of a violent felony as defined in § 17.1-805" or a conviction of "any other felony." The predicate offense is a non-felonious juvenile adjudication.

    Because convictions of juveniles in juvenile court are not felony convictions, the defendant is not subject to the mandatory punishment provisions of Section 18.2-308.2. In other words, he has not been convicted of either a violent or non-violent felony - he has been convicted of a non-felonious juvenile offense. If convicted of violating Section 18.2-308.2 he is guilty of a Class 6 felony with no mandatory minimum.

    The Virginia Court of Appeals in an opinion that reeks of result oriented jurisprudence, Carter v. Commonwealth, 38 Va. App. 116, 562 S.E.2d 331 (2002), decided otherwise. Carter at 124 found that the use of the phrase "any person" in both the section of the statute defining the crime and the section of the statute setting out the punishment meant the mandatory prison term sections of the statute were intended to apply where the predicate offense was a juvenile adjudication. According to the Court this conclusion was based on established principles of statutory construction:

    Well established "principles of statutory construction require us to ascertain and give effect to the legislative intent." "The plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results." Id. Thus, "t is a basic rule of statutory construction that a word in a statute is to be given its everyday, ordinary meaning unless the word is a [term] of art." Because the Code of Virginia is "one body of law," we may consult other statutes "using the same phraseology" to assist us in divining legislative intent. "Although penal laws are to be construed strictly [against the Commonwealth], they 'ought not to be construed so strictly as to defeat the obvious intent of the legislature.'" (citation omitted).

    Based upon this principle, the Court held that "the inclusive language, 'any person,' which appears in the punishment provisions of the statute, clearly embraces anyone found in violation of the prohibition" thus transmogrifying juvenile adjudications into felonies for purposes of the mandatory punishment provisions of the statute.

    As amazing as Carter's use of "well established principles of statutory construction" is its disregard for those well established principles leading to a different conclusion. The Legislature and the Courts have been using the term "juvenile adjudication" to refer to convictions of juveniles in juvenile and domestic relations Court. The historic use of a term defines its meaning. That historic use is that these adjudications are just that, adjudications of delinquency - not convictions of felonies. To change this historic meaning by Court decision, as Carter does, is to create legislation not enacted by the legislature. If the language of a statute can be given meaning based upon its ordinary and historic usage, that language ought to control unless it leads to an absurd result.

    Carter does not mention the provision of the Virginia Constitution describing the types of criminal cases that can be tried in Courts not of record, or the provisions of the Code categorizing offenses by the type of punishment that can be imposed. More important, however, Carter fails to even nod in the direction of the idea that in circuit court felony trials there is a right to trial by jury. In a trial in a court not of record there is none: This is not a meaningless distinction.

    In United States v. Walters the Fourth Circuit dealt with the same issue and reached a different conclusion. The Court reached it's conclusion using the same principles of statutory construction the Virginia Court of Appeals claimed to use:

    Virginia courts have held that the judicial function is to apply the "plain, obvious, and rational meaning of a statute, and that unless there is ambiguity there is no need for interpretation . . . ." Here, the plain language of the statutory provision on which the Government relies treats the conviction of a felony as distinct from an adjudication as a juvenile. By writing the statute in the disjunctive, the Virginia legislature has given it the effect of excluding a person who has been adjudicated delinquent from the category of persons convicted of felonies. ("[T]he use of the disjunctive word 'or,' rather than the conjunctive 'and,' signifies the availability of alternative choices."); ("[T]he use of a disjunctive in a statute indicates alternatives and requires that those alternatives be treated separately.") (citations omitted).

    The most significant difference between juvenile and domestic relations district court adjudications and felony convictions in circuit court is, of course, the right to have a jury find a defendant guilty beyond a reasonable doubt. This requirement-proof to a jury-is not part of the procedural due process afforded juveniles in juvenile and domestic relations courts.

    Another problem with Carter's "analysis" is that the legislature knows the difference between adjudications and situations where it has provided for the transfer of a juvenile's case to a circuit court for proceedings as an adult. Another principle of statutory construction is that the legislature is presumed to know its own laws. When the legislature uses specific terms, with specific statutory meanings, a court cannot legislate a different meaning.

    The proper constriction of Section 18.2-308.2 does not turn on the phrase "any person" but rather on the terms "adjudicated" and "felony." The section creates three different penalties applicable in different situations. First, where the predicate offense is a juvenile conviction, the defendant is guilty of a class six felony with no mandatory minimum. Second, where the predicate offense is a non-violent felony - not a juvenile adjudication - he has committed a class six felony with a two year mandatory minimum. Lastly, where the predicate offense is a violent felony - not a juvenile adjudication - he has committed a class six felony with a five year mandatory minimum.

    Carter and it's progeny Parks are bad law. Both are result-oriented jurisprudence and not the kind of decision making Cardozo wrote about in THE JUDICIAL IMAGINATION. With any luck, the Court of Appeals will have an opportunity to set those decisions aside.

  • Virginia Supreme Court Criminal Law and Procedure Decisions

    Case decided September 16, 2005

    Jackson v. Washington, Warden, ___ Va. ___, 619 S.E.2d 92 (Circuit Court of Stafford County). Justice Koontz. The circuit court erred in dismissing Jackson's claim of the ineffective assistance of counsel as raised in his petition for a writ of habeas corpus where his trial defense counsel failed to object to him being tried before a jury while wearing a jail-issued "jumpsuit." Under the circumstances, compelling petitioner to stand trial before the jury so attired prejudiced his right to a fair trial, and counsel should have objected. The judgment is reversed, petitioner's convictions are set aside, and the circuit court is directed to issue the writ and grant petitioner a new trial on the underlying indictments if the Commonwealth be so advised.

    Cases decided November 4, 2005

    Brown v. Commonwealth, Record No. 050639 (Court of Appeals) (Justice Lacy). The defendant was convicted of possession of heroin and cocaine, and he appealed to the Court of Appeals, contending that the trial court erred in failing to suppress the evidence of heroin and cocaine because that evidence was the result of an unlawful search. A police officer was patrolling an area where there had been recent shootings and a homicide when he saw a car parked in an alley in a manner that would not allow a wide emergency vehicle to pass. As he approached the car, four men in the alley quickly dispersed in different directions. He discovered defendant asleep in the car with a partially-burned, hand-rolled cigarette in his hand. The officer testified that in his experience hand-rolled cigarettes contained contraband and he had probable cause to arrest and search defendant when he saw the hand-rolled cigarette in his hand. The officer woke defendant up, searched him, and found a folded $5. bill in his pocket. Laboratory tests subsequently showed the hand-rolled cigarette and the money contained traces of cocaine and heroin. The Court of Appeals affirmed the conviction finding that, under the totality of the circumstances, the officer had probable cause to arrest defendant, and the search conducted pursuant to the arrest was lawful. The Supreme Court concluded that observation of a single item which has legitimate as well as illegitimate uses without more does not present sufficient probable cause to believe a person is or has been engaged in criminal activity. In this case, neither the location of the car, the dispersal of the four men, nor the prior violent crimes in the area were related to any criminal activity involving the sleeping defendant. The only basis for suspecting defendant of criminal activity was his possession of a hand-rolled cigarette. Thus, the totality of the circumstances in this case was insufficient to support a finding of probable cause.

    Coles v. Commonwealth, Record No. 050107 (Court of Appeals) (Senior Justice Compton). The Supreme Court agreed with the Court of Appeals that the evidence was sufficient to prove premeditation and the necessary intent to kill to support a conviction for the attempted capital murder of a law-enforcement officer. Justice Koontz dissented in an opinion joined by Justices Lacy and Agee, concluding that there was no proof of the specific intent to kill the police officer.

    McAlevy v. Commonwealth, Record No. 042894 (Court of Appeals) (Per Curiam). The Court affirmed the judgment of the Court of Appeals upholding McAlevy's conviction under Code § 18.2-95 for grand larceny. McAlevy represented to an innocent third party that he was the owner of certain farming equipment, which he did not own or have permission to sell. He sold the equipment to the third party and told him to remove the equipment from its location on the true owner's property. He argued that the Commonwealth failed to prove the asportation element of grand larceny because the innocent third party--not the defendant--removed the equipment from the true owner's property. The Court held that the asportation element could be imputed to McAlevy.

    Williams v. Commonwealth, Record No. 042647 (Court of Appeals) (Senior Justice Carrico). Williams was indicted for the possession or transportation of a firearm after having been convicted of a felony and for knowingly buying, receiving, or aiding in concealing a stolen firearm. A jury convicted him of both offenses and fixed his punishment at five years' imprisonment on the first charge and two and one-half years on the second charge, and the trial court imposed the sentences fixed by the jury and, in addition, imposed upon him a three-year term of post-release supervision. The court suspended the three-year sentence of postrelease supervision upon condition that the defendant be of good behavior for 10 years upon his release from confinement. The trial court also placed Williams on probation for three years upon his release from confinement. The Court of Appeals denied the defendant's petition an unpublished per curiam opinion. The Court concluded that the three-year term of postrelease supervision is added to the ten-year term that could have been imposed for the two offenses. This produces a permitted term of thirteen years, greater by 30 months than the ten and one-half years of punishment actually imposed upon the defendant. Thus, the sentences imposed by the trial court, including the three-year term of postrelease supervision, were within the ranges set by the General Assembly and thus are legal.

  • Virginia Court of Appeals Criminal Law and Procedure Decisions

    Cases decided September 27, 2005

    Luginbyhl v. Commonwealth, 46 Va. App. 545, 620 S.E.2d 125 (Petition for Rehearing En Banc). A Petition for Rehearing En Banc to the decision rendered on August 30, 2005, is granted and the appeal is reinstated on the docket of the Court.

    Case decided October 11, 2005

    Mattox v. Commonwealth, __ Va. App. ___, 620 S.E.2d 550 (Circuit Court of Pittsylvania County). Judge McClanahan. The trial court' decision to sentence Mattox as a serious juvenile offender following his convictions for felony hit and run, reckless driving, and assault and battery was not an abuse of discretion. The court had received evidence that when the victim, a game warden, ordered the youth, who was driving an all terrain vehicle (ATV), to stop, he extended his middle finger at victim, he stated to a friend that he was going to "piss off" the game wardens, he later accelerated away from the victim when the warden saw him and told him to stop, and then he deliberately drove the ATV toward the victim, accelerated, and struck the victim causing injuries. The trial court considered the juvenile's age, the violent and willful manner in which he struck the victim, that the offense was committed against a person, extensive injuries were suffered by the victim, and that the juvenile was the sole participant when imposing the serious offender sentence.

    Cases decided October 18, 2005

    Lassiter v. Commonwealth, __ Va. App. ___, 620 S.E.2d 563 (Circuit Court of the City of Virginia Beach). Senior Judge Overton. The evidence was sufficient to show that Lassiter was not in legal possession of the house that he had rented, so as to support his conviction for statutory burglary. Lassiter argued that the landlord, instead of taking appropriate legal action to obtain a writ of possession for home, entered the house, changed the locks, and made it impossible for him to finish clearing his belongings out as directed to do by judgment after landlord filed unlawful detainer. The defendant's wife testified that her family had complied with the judgment by completely vacating house, and the landlord entered the house one day later, took possession of the house, locked and secured it, and posted no trespassing signs.

    Oliver v. Commonwealth, __ Va. App. ___, 620 S.E.2d 567 (Circuit Court of the City of Virginia Beach). Judge Kelsey. Oliver's prior convictions received from special courts-martial under the Uniform Code of Military Justice (UCMJ) while in the military were admissible for sentencing purposes in his prosecution for third-offense petit larceny, absent any constitutional objection to validity of such prior convictions or any other collateral attack on validity of such convictions.

    Case decided October 25, 2005

    Auer v, Commonwealth, Record No. 0851-04-1 (Circuit Court of the City of Virginia Beach). Judge Clements. Defendant was convicted by a jury of aggravated involuntary manslaughter and driving under the influence of alcohol (DUI), first offense. Evidence of his prior criminal conviction for misdemeanor driving while under the influence of alcohol (DUI), in violation of a city ordinance, was admissible during the punishment phase of the bifurcated jury trial.

    Case decided November 1, 2005

    Gregory v. Commonwealth, Record No. 0280-04-2 (Circuit Court of Henrico County). Judge Bumgardner. The defendant was convicted in a jury trial of second-degree murder and felony alluding police, and subsequently entered a guilty plea to three counts of possession with intent to distribute an illegal drug. He appealed the denial of his motion to suppress. The Court of Appeals held that the magistrate reasonably could have concluded that the items sought in the affidavit supporting the search warrant for defendant's residence, which included papers, documents, or photographs showing defendant's usage or ownership of the vehicle which was involved in a rollover that killed a trooper, would be found in the residence, so as to support issuance of warrant. The Court also concluded that evidence of drugs and money found in defendant's apartment was admissible for purposes of establishing a motive for his actions.

    Cases decided November 8, 2005

    Jones v. Commonwealth, Record No. 2200-04-1 (Circuit Court of the City of Norfolk) (Judge Humphreys). Jones was convicted after a bench trial of felonious child neglect, and she appealed. The Court of Appeals decided that Jones' conduct in selling heroin from her apartment created a substantial risk of serious bodily injury to, or death of her eight-year-old child, and thus the evidence was sufficient to support the conviction.

    Singson v. Commonwealth, Record No. 0646-04-1 (Circuit Court of the City of Virginia Beach) (Judge Humphreys). Following the denial of his motion to dismiss in the circuit court, the defendant entered a conditional guilty plea to solicitation to commit oral sodomy, and he was convicted on his plea. The Court of Appeals held that the defendant lacked the standing to bring a facial due process challenge to Virginia's crimes against nature statute prohibiting oral sodomy, the statute did not violate due process as applied to the defendant because he solicited oral sodomy in a public place, the statute was not facially overbroad in violation of First Amendment free speech rights, and the statute did not chill protected free speech rights. Thus, the conviction was affirmed.
    Tjan v. Commonwealth, Record No. 3221-03-1 (Circuit Court of the City of Virginia Beach) (Judge Humphreys). This case was consolidated with Singson for oral argument, and like that case Tjan entered a conditional guilty plea after his motion to dismiss was denied, and he was convicted on that guilty plea. The Court concluded that Tjan lacked the standing to challenge the crimes against nature statute prohibiting oral sodomy as being facially unconstitutional, the crimes against nature statute prohibiting oral sodomy did not violate the Due Process Clause as applied to him, Tjan lacked the standing to challenge the crimes against nature statute prohibiting oral sodomy as being unconstitutionally overbroad, the crimes against nature statute prohibiting oral sodomy was not void for vagueness as applied to Tjan, he lacked the standing to challenge the crimes against nature statute prohibiting oral sodomy as being void for vagueness, and the crimes against nature statute prohibiting oral sodomy did not violate the Equal Protection Clause.

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

    Padilla v. Hanft, 438 F.3d 386 (Sept. 9, 2005). Judge Luttig. Petitioner, an American. citizen detained in military custody without trial after being designated by the President as an "enemy combatant" presenting a
    continuing, present and grave danger to the United States, petitioned for a writ of habeas corpus. The district judge in South Carolina ruled that Padilla had to be either criminally charged or released, and the government appealed. The Court of Appeals reversed, holding that the President possessed the authority, pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress, to detain the enemy combatant.

    United States v. Adams, 426 F.3d 730 (Oct. 21, 2005). Judge Luttig. Defendant was convicted in the district court of driving on a revoked license and for driving as an habitual offender on a road in a national wildlife refuge. The Court of Appeals concluded held that the road inside the refuge that had been indefinitely and completely closed to public until further notice due to hurricane damage did not have "highway" status under Virginia law, as required to sustain convictions.

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