And we are now into October as the Court of Appeals of Virginia Blawg plays catch-up after its hiatus and move to its new home.
Danjuan Antonio McBride must have thought he was going to skate by on two counts of possessing a controlled substance with the intent to distribute when the trial court granted his motion to strike the evidence. Then the circuit court did something extraordinary -- it permitted the Commonwealth to reopen its case an present additional evidence, after which the court "reversed" its decision on the motion to strike and then submitted the case to the jury which convicted McBride.
That hardly seems fair, and it's not. As the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, explains
When a defendant moves to strike the evidence as insufficient, a trial court has significant discretion about how to proceed. Even if the court agrees the evidence is insufficient, Rule 3A:15(a) does not require the court to grant the motion. The court can take a recess to consider the evidence, the court can take the motion under advisement, the court can opine that the evidence is thin, or the court can allow the Commonwealth to put on additional evidence. What the court cannot do under Rule 3A:15(c) is grant the motion to strike, ruling that the evidence is insufficient, then allow additional evidence to be presented and enter a different ruling based on that added evidence.
Now, what may be more surprising to you than the Circuit Court's striking the evidence and then giving the Commonwealth a do over is that McBride is not yet able to skate. Instead, the Court is remanding the case for a new trial on lesser offenses. How did that happen? Well, the initial motion to strike was based on the Commonwealth's failure to prove that McBride had prior offenses that elevated the penalty for his offense. The Court reasons that the evidence was sufficient to prove a base offense and that McBride should face a charge no greater than that on remand.
I take issue with the Court's analysis here. The circuit court did not "strike" the greater offense and amend the charge to conform to the evidence. It struck the evidence. I do not believe the Court of Appeals should step into the shoes of the trial judge an speculate what would have been done had the court not erred in allowing the Commonwealth to reopen the case. I suspect a petition to the Supreme Court may be forthcoming from McBride to raise that very issue.
W. Roy Tuthill v. Commonmwealth is a 2022 Appeal of Right and I believe the first such published opinion in which the appellant is pro se. It is also, despite the style of the case, not a criminal appeal. Rather, it is an appeal from a denial of a petition to be removed from the Virginia Sex Offender Registry pursuant to Code § 9.1-910. While the Commonwealth agreed that Tuthill has a "good candidate for removal," it objected to his petition on the ground that he was not entitled to removal because he had two convictions that both qualified for registration, even though those two convictions arose from the same incident.
Tuthill contends that the statute's prohibition of a person being eligible for removal from the registry if he has two offenses was not meant to apply to convictions for a single act or transaction chargeable as two offenses. The Court of Appeals, Judge O'Brien joined by Judges Lorish and Sr. Judge Annunziata, hold that to so find the Court would have to impermissibly add language to the statute. This seems to be a good case to bring to the attention of the General Assembly.
Updated: Jan 18, 2023
As the Blawg continues to play catch-up, we have two more criminal appeals from the Court of Appeals, these having been issued on September 27, 2023.
Jason Harris v. Commonwealth involves the problem of screening a member of the Commonwealth's Attorney's Office who was previously in private practice when a former client once again finds himself the object of a criminal prosecution. As a general rule, the so called "Chinese Wall" method of dealing with conflicts is not allowed, but there is one significant exception for government employees. Because it is commonplace for government attorneys to move back and forth from the private sector, the Rules of Professional Responsibility do permit the use of screening to avoid potential conflicts.
In Harris the conflict arose from the ACA's having represented Harris in two revocation hearings while she was a public defender. When Harris was charged with a new offense, the Commonwealth's Attorney declined to seek a special prosecutor, reasoning that the new offense was not related to the matter in which the ACA had represented Harris, and that screening her from the case would be sufficient.
Harris entered into a plea agreement, but before it could be entered, he found himself in even more trouble. This time, his public defender made a formal motion for the appointment of a special prosecutor. After receiving assurances from the Commonwealth that Harris' former counsel would have no involvement with the prosecutions, the circuit court denied the motion. Harris appealed from both cases, arguing that the conflict should have disqualified the Commonwealth's Attorney from prosecuting Harris.
Normally, I don't bother to identify the jurisdiction from which an appeal arises as it is not generally relevant, but in this case I think it is worth observing that this case arises from Fauquier County. Fauquier is just on the edge of the Northern Virginia sprawl, but is still a relatively rural county. Why is that relevant? Well, when a special prosecutor is appointed, generally a prosecutor is chosen from a neighboring jurisdiction in a different circuit. Why a different circuit? Because this helps give the appearance of full independence where the special prosecutor does not regularly appear in from of the judge trying the case. For the same reason, when a retired circuit or district judge sits by designation following recusal of the judges of a locality, he or she is not a retired judge of the court that is recused (this does not apply where the judge is sitting by designation merely to assist with the caseload or for an absent judge). The two neighboring counties that are not in the 20th circuit are Prince William (31st) and Stafford (15th). Manassas is the county seat of Prince William, about a 30 minute drive to Warrenton, the county seat of Fauquier, but Prince William is a rapidly-urbanizing jurisdiction and I would imagine its ACAs are pretty busy. The Stafford County Courthouse is more like an hour drive. Stafford County is a little further along in growth than Fauquier, with about double the population, but its likely that it's Commonwealth's Attorney's Office is not yet gaining extra staff. In short, it probably would have been a significant inconvenience for either office to supply the special prosecutor, and while this factor alone should not be the determining factor for whether the local prosecutor should recuse, it is certainly a relevant consideration where the charges are not significant and the conflict is not that great.
On appeal, the Court of Appeals, Judge Lorish joined by Judge O'Brien and Sr. Judge Annunziata, first note that with respect to the case in which Harris entered a guilty plea, he has waived any objection to the potential conflict. With respect to the additional issues, the Court finds that, assuming without deciding that the conflict did present an actual probability that the former public defender was privy to information that was prejudical to Harris in the current proceedings, the Commonwealth effectively screened her from the proseuction.
The other case from September 27, 2022 is Eva Carol Belcher v. Commonwealth and it involves an offense that is likely to be increasingly common with the aging of the Baby Boom generation, abuse of a position of trust with respect to an elderly person. Belcher was a caregiver who had access to her patient's credit card. Belcher was indicted on over 38 separate offenses of fraud to obtain money, goods, or services in violation of Code § 18.2-186.3. In a jury trial she was acquitted of all but seven misdemeanor and one felony count.
The issues on appeal include the sufficiency of the evidence, the admission of testimony by the victim's son concerning the reduction in expenses for his mother after Belcher was dismissed offered to show that her purchases were not for the victim's benefit, and the jury's recommendation of sentences that did not comport with the law. The Court of Appeals, Judge Friedman joined by Judges AtLee and Raphael, affirm on the sufficiency and evidentiary issues, but reverse on the sentencing issues.
The circuit court's failure to address the improper sentences with the jury is baffling to me. It is well-settled law that a defendant cannot be sentenced in excess of the punishment permitted by law and cannot waive an objection to an unlawful sentence. While the court was clearly aware that the jury had not properly discharged its duty, he dismissed the jury and subsequently "adjusted" the sentences after the pre-sentence report was filed. This case obviously preceded the option for a jury trial with judge sentencing, but even if it hadn't, where the jury is the sentencing body, only the jury can pronounce the sentence. The judge can suspend a portion of the time or fines to render a less harsh active sentence, but he cannot correct an unlawful sentence imposed by the jury.
The Court of Appeals release three published opinions on September 20, 2022, all from criminal cases. Craig Carnell Maryland v. Commonwealth is all about "time served." Maryland was convicted of voluntary manslaughter and use of a firearm. We received a total sentence of 15 years, with four years and five months active time. Maryland maintained that he was entitled to credit against this sentence for the time he had spent on pre-trial bond in a home electronic monitoring program. The circuit court found that HEM did not qualify as time served.
Judge White, in her first published opinion, joined by Chief Judge Decker and Judge Beales, affirms. The relevant statute, Code §53.1-187, permits the crediting of time served "spent in confinement or in detention." The Court reasons that while Maryland was in "custody," we was neither confined nor detained. Despite being affirmed, the case is remanded to correct a scrivener's error in the sentencing order.
Diallo Turner v. Commonwealth arises from a motion to suppress the evidence obtained as the result of a traffic stop that was part of a surveillance operation of a suspected drug market. The stop occurred in Fredericksburg about 1 AM on June 3, 2020. The city had declared an emergency curfew from 8 p.m. to 6 a.m. from June 1, 2020 to June 3, 2020 as a result of unrest related to the death of George Floyd at the hands of police in Minneapolis, and Turner's violation of the curfew was the basis of the stop.
The stop was tense, with Turner asking the police "not to kill him." Finding that Turner was driving on a suspended license, police brought a "sniffer" dog which altered on the vehicle and a search found marijuana as well as suspected PCP residue. Turner was Mirandized and made incriminating statements.
Turner moved to suppress the evidence and the attendant statements, arguing that as there were numerous exceptions to the curfew, his mere presence on the street was not sufficient to establish probable cause to initiated the stop. The circuit court ruled that the officer was permitted to conduct the stop in order to determine whether Turner had a justifiable reason for being out past curfew. The Court of Appeals, Judge Beals, joined by Chief Judge Decker and Judge White, affirmed.
Devonza Antiwan Johnson was incarcerated in the restrictive housing unit at the Augusta Correctional Center when he caught the attention of a female staff member and proceeded to masturbate. He was charged with a violation of Code § 18.2-387.1, which criminalizes engaging in masturbation in "a public place." Johnson contended that his cell in the prison was not a "public place" and therefore he was not guilty of the offense. Johnson noted that the language of Code §18.2-387.1 differs from that of Code §18.2-387 which applies to indecent exposure, which can occur in a public place or a place “where others are present.”
The Court, Judge Raphael, joined by Judges AtLee and Friedman, actually find that there is merit to Johnson's argument. The difficulty is, they are not the first judges of the Court of Appeals to address this issue. Under similar circumstances, a different panel of the Court in Barnes v. Commonwealth, 61 Va.App. 495 (2013), held that jails and prisons are "public places" for purposes of Code § 18.2-387.1. The panel finds that it is bound by that decision.