{ } NEWS Criminal Law Volume 41, Number 2 November 2011 PUBLISHED BY THE CRIMINAL LAW SECTION OF THE VIRGINIA STATE BAR FOR ITS MEMBERS The Hon. Martin F. Clark, Jr. is a Cum Laude, Phi Beta Kappa graduate of Davidson College and a 1984 grad- uate of the University of Virginia School of Law. In 1992 he was appointed as a juvenile and domes- tic relations district court judge for the Twenty- first Judicial Circuit and currently serves as a circuit court judge for the Virginia counties of Patrick and Henry and the city of Martinsville. His first novel, The Many Aspects of Mobile Home Living, was a New York Times Notable Book for the year 2000, a Book-of-the-Month Club selection, and appeared on several best-seller lists. The New York Times Magazine called Many Aspects “arguably the funniest legal thriller ever written” and declared Martin to be “the thinking man’s John Grisham.” His second novel, Plain Heathen Mischief, was nominated for several 2004 literary awards. His third book, The Legal Limit, was selected by NPR as one of its “Summer Reads” and was featured and excerpted in the July 2008 edition of Reader’s Digest. Also, the book was named to several “Best of 2008” lists, and it won The 2009 Library of Virginia’s People’s Choice Award for fiction. Martin is a former trustee of Stuart Presbyterian Church, a member of Trout Unlimited and an avid fly fisherman. He lives in Stuart, Virginia, with his wife Deana. DeMaurice “De” Smith is the Executive Director of the National Football League Players Association. Prior to his current position, he was a trial lawyer and litigation partner in the Washington, DC offices of law firms Patton Boggs, LLP and Latham & Watkins LLP. Smith previously served as Counsel to then-Dep- uty Attorney General Eric Holder in the U.S. Department of Justice, and served in the United States Attorney’s Office for the District of Columbia for ten years. Smith is a fellow of the American College of Trial Lawyers, has served on the Board of Governors of the D.C. Bar Association, and is the former president of the Assistant United States Attorney’s Association. He is also a mem- ber of the Board of Advisors for the Office for Access and Advancement for Public Black Universities of the Association of Public and Land Grant Universities. He is a recipient of the United States Attorney General’s Award, the John Evans Trial Advocacy Award from the United States Attorney’s Association, and the 2010 Cedarville College Alumnus of the Year Award. He was also honored as a recipient of the Keeper of the Dream Award by the National Action Network and named one of the Top Ten Most Influential Persons by the Sports Business Journal. Smith is a graduate of the University of Virginia School of Law and received his bachelor’s degree in Political Science from Cedarville University, a Christian college in Ohio. He continues to teach at the National Trial Advocacy Institute at the University of Virginia. 42nd Annual Seminar Program Confirmed Judge Martin Clark to Speak in Williamsburg DeMaurice Smith to Speak in Charlottesville
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NEWSCriminal Law Volume 41, Number 2
November 2011
Published by the Criminal law seCtion of the Virginia state bar for its members
The Hon. Martin F. Clark, Jr. is a Cum Laude, Phi Beta Kappa graduate of Davidson College and a 1984 grad-uate of the University of Virginia School of Law. In 1992 he was appointed as a juvenile and domes-tic relations district court judge for the Twenty-first Judicial Circuit and currently serves as a circuit court judge for the Virginia counties of
Patrick and Henry and the city of Martinsville.
His first novel, The Many Aspects of Mobile Home Living, was a New York Times Notable Book for the year 2000, a Book-of-the-Month Club selection, and appeared on several best-seller lists. The New York Times Magazine called Many Aspects “arguably the funniest legal thriller ever written” and declared Martin to be “the thinking man’s John Grisham.” His second novel, Plain Heathen Mischief, was nominated for several 2004 literary awards. His third book, The Legal Limit, was selected by NPR as one of its “Summer Reads” and was featured and excerpted in the July 2008 edition of Reader’s Digest. Also, the book was named to several “Best of 2008” lists, and it won The 2009 Library of Virginia’s People’s Choice Award for fiction.
Martin is a former trustee of Stuart Presbyterian Church, a member of Trout Unlimited and an avid fly fisherman. He lives in Stuart, Virginia, with his wife Deana.
DeMaurice “De” Smith is the Executive Director of the National Football League Players Association. Prior to his current position, he was a trial lawyer and litigation partner in the Washington, DC offices of law firms Patton Boggs, LLP and Latham & Watkins LLP. Smith previously served as Counsel to then-Dep-uty Attorney General Eric Holder in the U.S. Department of Justice, and served in the United States Attorney’s Office for the District of Columbia for ten years.
Smith is a fellow of the American College of Trial Lawyers, has served on the Board of Governors of the D.C. Bar Association, and is the former president of the Assistant United States Attorney’s Association. He is also a mem-ber of the Board of Advisors for the Office for Access and Advancement for Public Black Universities of the Association of Public and Land Grant Universities. He is a recipient of the United States Attorney General’s Award, the John Evans Trial Advocacy Award from the United States Attorney’s Association, and the 2010 Cedarville College Alumnus of the Year Award. He was also honored as a recipient of the Keeper of the Dream Award by the National Action Network and named one of the Top Ten Most Influential Persons by the Sports Business Journal.
Smith is a graduate of the University of Virginia School of Law and received his bachelor’s degree in Political Science from Cedarville University, a Christian college in Ohio. He continues to teach at the National Trial Advocacy Institute at the University of Virginia.
42nd Annual Seminar Program Confirmed Judge Martin Clark to Speak in WilliamsburgDeMaurice Smith to Speak in Charlottesville
Criminal Law News November 2011
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Virginia State Bar 42ND Annual Criminal Law Seminar
FEBRUARY 3, 2012 • KINGSMILL MARRIOTT • WILLIAMSBURG FEBRUARY 10, 2012 • DOUBLETREE HOTEL • CHARLOTTESVILLE
8:00 Late Registration and Exhibits 8:15 Welcome and Opening Remarks8:30 Recent Developments in Criminal Law and Procedure Prof. Ronald J. Bacigal – School of Law, University of Richmond 9:45 Coffee Break10:00 FOIA & Law Enforcement Records Sara N. Poole – Counsel, Virginia State Police, Richmond 11:00 What Can You Do When the Defendant is Mentally Ill But Not Legally Insane Annette Miller – Office of the Public Defender, Virginia Beach (Williamsburg) David B. Hargett – Hargett Law PLC, Glen Allen (Charlottesville) Dr. Dan Shenaman – Central State Hospital, Petersburg Leslie J. Weisman – LCSW, Client Services Entry Supervisor, Behavioral Healthcare Division and Winston Marcus Director of Probation, Arlington Community Corrections Unit Moderators: Hon. Michael N. Herring – Commonwealth’s Attorney, Richmond (Williamsburg) Elizabeth P. Murtagh – Deputy Public Defender, Charlottesville (Charlottesville)12:00 Luncheon
1:30 Ethical Issues in the Practice of Criminal Law Rodney G. Leffler – Leffler & Mosley PC, Fairfax Hon. Jane Marum Roush – Judge, Fairfax County Circuit Court2:45 Understanding and Navigating the Sexually Violent Predator Commitment Process B. Leigh Drewry, Jr. – Cunningham & Drewry, Lynchburg Dr. Evan S. Nelson – Forensic Psychology Associates, PC, Midlothian Erin D. Whealton – Office of the Attorney General, Richmond3:45 Trials and Tribulations: Practice Pointers from the Bench Hon. Michael McGinty – Chief Judge, Williamsburg/James City County General District Court Hon. Charles S. Sharp – Judge, 15th Judicial Circuit Court, Stafford Hon. Philip Trompeter – Judge, J&DR District Court, Roanoke4:45 Closing Remarks and Adjournment
Plan to attend one of these live seminars!New MCLE Regulations, applicable to the twelve (12) credit hours minimally required,
effective November 1, 2011 require four (4) hours of live programs, and limit to eight (8) hours the number of pre-recorded programs, including videotape replays.
Hon. Martin F. Clark, JrAuthor & Judge, Patrick County Circuit Court
(Williamsburg)
Criminal Law News November 2011
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Chair’s Column
Letter from the ChairCasey R. Stevens
The Section on Criminal Law has a very talented Board this year that is actively pursuing many ongoing projects. These include: The 42nd
Annual VSB Criminal Law Seminar, the Capital Case Trial Manual - 2012 Supplement, the December 2012 issue of the Virginia Lawyer, the Harry L. Carrico Professionalism Award, the VSB 74th Annual Meeting Criminal Law CLE, and as always the invaluable Criminal Law News.
As you may be aware, the Continuing Legal Education Board of the VSB adopted a new regulation, effective November 1, 2011. Said regulation mandates that of the twelve (12) credit hours minimally required of each active member of the Bar annually, no more than eight (8) may be earned from pre-recorded courses. Stated differently, four (4) of the minimally required hours annually must now be obtained at live seminars. Accordingly, I encourage each of you to mark your calendar to attend the 42nd Annual VSB Criminal Law Seminar to be held live on Friday, February 3rd, 2012 in Williamsburg, and Friday, February 10th, 2012 in Charlottesville.
Professor Ronald J. Bacigal has just completed the 2012 Supplement to the Capital Case Trial Manual which goes to publication later this year. This essential resource is both a guide for attorneys and a source of information for judges who are involved with capital cases in Virginia. The Section was instrumental in the preparation of the Capital Case Trial Manual, originally published in 1991, to aid in the competent and professional handling of cases involving the death penalty. The Manual, prepared as a cooperative effort of Virginia CLE and the Section on Criminal Law, is supplemented annually between each new edition.
The Section has been honored by being selected to author the feature articles in the December 2012 issue of the Virginia Lawyer magazine. You will find a call for applications for featured articles contained in this edition of Criminal Law News. This is an excellent opportunity for members of our Section to publish their scholarly works in the area of criminal law. I encourage each of you to give serious consideration to submitting an application for a feature article. The Board of Governors will be accepting submissions for consideration until January 5, 2012. All authors who are interested in being considered should direct a one to two paragraph abstract along with a brief biography or c.v. to Judge Ashley Tunner at [email protected] using “Criminal Law Article” in the Subject line.
The Board is also currently calling for nominations for the Harry L. Carrico Professionalism Award. A nomination form can be found in this issue of the Criminal Law News. The award will recognize an individual who demonstrates a deep commitment and dedication to the highest ideals of professionalism in the practice of law and the administration of justice in the Commonwealth of Virginia; has made a singular and unique contribution to the improvement of the criminal justice system in Virginia, emphasizing professionalism as the basic tenet in the administration of justice; represents dedication to excellence in the profession and “performs with competence and ability and conducts himself/herself with unquestionable integrity, with consummate fairness and courtesy, and with an abiding sense of responsibility.” (Remarks of Chief Justice Carrico, December 1990, Course on Professionalism). This award honors those who set an example for each of us to admire and to seek to attain. I encourage you to take a moment to consider whether you know of such an individual who we can all celebrate.
The VSB 74th Annual Meeting will be held June 13, 2012 through June 17, 2012 in Virginia Beach. The Section on Criminal Law traditionally presents a CLE seminar at the meeting. The Section is presently working on submitting a presentation for consideration as the showcase seminar tentatively titled “Big Brother is Watching.” This proposal will
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Criminal Law News November 2011
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address issues related to GPS tracking, cell site tracking, electronic Fourth Amendment issues and the like. Keep an eye out for additional information regarding this fascinating CLE topic which is applicable to many areas of practice. Additionally, place the Annual Meeting on your calendar now so as to not miss out on the many educational and social opportunities available during the conference, each year, in Virginia Beach.
I would again like to thank the esteemed lawyers and judges who serve with me on the Board for the many hours of time dedicated to the mission of our Section.
Lastly, as has become custom, I would like to focus the members of our Section on a quotation which I find most inspiring in directing my thinking while engaged in the necessary clash between the Government, the accused, and sometimes the Court: “Injustice is relatively easy to bear; what stings is justice.” - H. L. Mencken. Let us commit ourselves to achieving justice.
Craig S. Cooley Named a “Leader in the Law”
Virginia Lawyers Media, the publisher of Virginia Lawyers Weekly, has announced the 2011 class of “Leaders in the Law.” Now in its sixth year, this awards program recognizes the lawyers across the Commonwealth who are setting the standard for other lawyers in Virginia. “Leaders” are recognized for changing the law, serving the community, changing practice or improving Virginia’s justice system, among other accomplishments.
Craig Cooley is a former Chair of the Criminal Law Section, and received the Section’s Harry L. Carrico Professionalism Award in 2002. He has also received numerous State and national honors.
VIRGINIA SUPREME COURT CRIMINAL LAW AND
PROCEDURE DECISIONSAnderson v. Commonwealth, Va. (11/4/2012). “Where the opposing party has attempted to impeach the witness by offering a prior inconsistent statement made by the witness, prior consistent statements made by the witness are admissible to support the witness. … The prior consistent statement may be considered by the fact-finder only for the fact of its utterance, not for the truth of its content.”
McDowell v. Commonwealth, Va. (11/4/2012). Vacated the decision in McDowel, 57 Va. App 308, because the issue has been waived by appellant.
Davis v. Commonwealth, Va. (11/4/2012). “The inclusion of sufficient assignments of error is a mandatory procedural requirement … the failure to comply with this requirement deprives this Court of its active jurisdiction to consider the appeal. …. Because Davis’ sole assignment of error in this appeal does not address any finding or ruling of the Court of Appeals, the appeal is dismissed.”
Bakran v. Commonwealth, Va. (11/4/2012). Per Curiam affirmance of the decision in Bakran, 57 Va. App. 197.
Smith v. Commonwealth, Va. (11/4/2012). Construed Code s18.2-308.22(K) [making a false statement] “to require the Commonwealth to prove, beyond a reasonable doubt, as an element of the crime, that the defendant had actual knowledge that his statement was false when he made it.”
Bevel v. Commonwealth, Va. (11/4/2012). The Court considered the “abatement doctrine” – the effect the death of a convicted criminal defendant has on a pending appeal and the underlying criminal prosecution. However, the Court expressly did “not address whether in all cases an appeal on the merits of a criminal conviction would become
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Criminal Law News November 2011
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moot on the death of the defendant.” The Court suggested that the contours of the abatement doctrine “is more appropriately decided by the legislature, not the courts.”
Turner v. Commonwealth, No. 101457, (Va. September 16, 2011). The Court denied the petition for a writ of actual innocence because the circuit court’s finding that Turner did not participate in the “restraint” or actual murder of the victim, did “not address the issue raised by Turner’s assignments of error and argument” – that he was not guilty of abduction with intent to defile.
VIRGINIA COURT OF APPEALS CRIMINAL
LAW AND PROCEDURE DECISIONS
Shifflett v. Commonwealth, No. 1951-10-3, (Va. Ct. App. October, 11 2011). “The ‘mere possibility of an innocent explanation’ does not necessarily exclude a reasonable suspicion that the suspect might be violating the law.” The facts here created a reasonable suspicion that defendant might not have been using his unregistered pickup truck consistent with the statutory exemptions governing farm use vehicles.
Flanagan v. Commonwealth, 58 Va. App. 681, 714 S.E.2d 212 (2011). “Code § 18.2-85 [possession or manufacturing of explosives] does not require that the Commonwealth show that an individual possessed a malicious intent in possessing or manufacturing the explosive devices. In effect, Code § 18.2-85 establishes a strict liability offense that an accused may counter with the statutory affirmative defenses provided in the last clause of the statute.”
English v. Commonwealth, Va. App. , 715 S.E.2d 391 (2011). “To prove a bodily injury, the victim need not experience any observable wounds, cuts, or breaking of the skin. Nor must she offer proof of ‘broken bones or bruises.’ Bodily injury ‘includes soft tissue injuries, at least those which require medical attention and have some residual effect.’ Thus, internal injuries – no less than external injuries – fall within the scope of Code s 18.2-51” [maliciously causing bodily injury].
Tharrington v. Commonwealth, No. 1573-10-1 (Va. Ct. App. September 27, 2011). “Because the legislative intent is unambiguous, … appellant’s convictions for larceny with intent to sell or distribute and grand larceny do not violate his double jeopardy rights.”
Pitts v. Commonwealth, No. 2039-10-1, (Va. Ct. App. October, 11 2011). Attempted petit larceny is a larceny conviction within the meaning of Code s18.2-96, thus a third or subsequent offense shall be punished as a class 6 felony.
Morris v. Commonwealth, No. 1133-10-2, (Va. Ct. App. October, 18 2011) Defendant, a Blood, acted with the Crips in attacking people. Defendant appealed his conviction of criminal street gang participation under Code s18.2-46.2. The Court upheld the conviction because although defendant had not acted “for the benefit of, or at the direction of a street gang, he had acted “in association with any criminal street gang.”
Gonzin v. Commonwealth, No. 1441-10-2, (Va. Ct. App. October, 25, 2011). “In order to prove the requisite element of ‘serious mental injury’ to sustain a felony conviction for aggravated sexual battery, the record must reflect evidence proving a greater injury to the victim’s mental health by way of the frequency, degree, duration or after-effects than that which would attend any sexual battery.” The Court upheld conviction for the misdemeanor offense of sexual battery, but reversed the conviction for aggravated sexual battery under Code s18.2-67.3. The Court provided some examples of “sufficient gravity”
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Criminal Law News November 2011
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– ongoing or recurring nightmares, the existence of a phobia, severe depression or other medically recognized psychological disorder, extensive or ongoing treatment or counseling sessions, extended and unremitting feelings of fear or anxiety, resultant difficulty with physical intimacy, or loss of self-esteem.
Downey v. Commonwealth, No. 1936-10-2, (Va. Ct. App. October 25, 2011). “Downey’s reliance on the rule requiring the Commonwealth to prove the corpus delicti in a criminal prosecution is misplaced. That particular rule would apply only to the Commonwealth’s prosecution of Downey’s underlying felonies or for new criminal activity that may result in a new judgment of conviction and sentence. It is not applicable to the probation revocation process, which deals solely with the possible modification of a judgment already rendered.”
MEMBER RESOURCES AREA
http://www.vsb.org/site/sections/criminal/
ELECTRONIC NEWSLETTERS FOR SECTION MEMBERS
Receive your newsletters electronically. Visit the VSB’s website at
https://member.vsb.org/vsbportal/to verify or change your email
address of record. Newsletters also available online for section members only, using:
Username: criminallawmember Password: P7CVRWk1
This site is available only toSection members
Calling Guest Authors!
The Criminal Law Section is accepting applications for feature articles to be published in the December 2012 issue of The Virginia Lawyer. The selected articles should focus on criminal law issues and should be 2500 words long. Final drafts of the articles are due on June 1, 2012 and are subject to editorial review by the Board of Governors.
Applicants should submit a one to two paragraph abstract along with a brief biography or c.v. to Judge Ashley Tunner at [email protected]., using Criminal Law Article in the Subject line of the email.
The deadline for submitting a proposal is January 5, 2012.
Criminal Law News November 2011
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C A L L F O R N O M I N AT I O N S
The Harry L. Carrico Professionalism Award was established in1991 by the Section on Criminal Law of the Virginia State Bar torecognize an individual (judge, defense attorney, prosecutor, clerk,or other citizen) who has made a singular and unique contribu-tion to the improvement of the criminal justice system in theCommonwealth of Virginia.
The award is made in honor of the Honorable Harry L.Carrico, a former Chief Justice of the Supreme Court of Virginia,who exemplifies the highest ideals and aspirations of professional-ism in the administration of justice in Virginia. Chief JusticeCarrico was the first recipient of the award, which was institutedat the 22nd Annual Criminal Law Seminar in February 1992.
Although the award will only be made from time to time at thediscretion of the Board of Governors of the Criminal Law Section,the Board will invite nominations annually. Nominations will bereviewed by a selection committee consisting of former chairs of thesection and Chief Justice Carrico.
Prior Recipients
CriteriaThe award will recognize an individual who meets the following
criteria:
◆ Demonstrates a deep commitment and dedication to the highestideals of professionalism in the practice of law and the administra-tion of justice in the Commonwealth of Virginia;
◆ Has made a singular and unique contribution to the improvementof the criminal justice system in Virginia, emphasizing professional-ism as the basic tenet in the administration of justice;
◆ Represents dedication to excellence in the profession and “per-forms with competence and ability and conducts himself/herselfwith unquestionable integrity, with consummate fairness and cour-tesy, and with an abiding sense of responsibility.” (Remarks of ChiefJustice Carrico, December 1990, Course on Professionalism.)
Submission of NominationPlease submit your nomination on the form below, describing specif-
ically the manner in which your nominee meets the criteria establishedfor the award. If you prefer, nominations may be made by letter.
Nominations should be addressed to Casey R. Stevens, Chair,Criminal Law Section, and mailed to the Virginia State Bar Office:Eighth and Main Building, Suite 1500, 707 East Main Street,Richmond, VA 23219. Nominations must be received no laterthan December 2, 2011. Please be sure to include your name andthe full name, address, and phone number of the nominee.
If you have questions about the nomination process, please callElizabeth L. Keller, Assistant Executive Director for Bar Services,Virginia State Bar, at (804) 775-0516.
HARRY L. CARRICO PROFESSIONALISM AWARDN O M I N AT I O N F O R M
Please complete this form and return it to the Virginia State Bar, Eighth and Main Building, Suite 1500, 707 East Main Street,Richmond, VA 23219. Nominations must be received no later than December 2, 2011.
Name of Nominee: __________________________________________________________________________________
(Please attach an additional sheet explaining how the nominee meets the criteria for the Harry L. Carrico Professionalism Award.)
HARRY L. CARRICO PROFESSIONALISM AWARDVSB Section on Criminal Law
The Honorable Harry L. Carrico 1992
James C. Roberts, Esquire 1993
Oliver W. Hill, Esquire 1995
The Honorable Robert F. Horan 1996
Reno S. Harp III, Esquire 1997
The Honorable Richard H. Poff 1998
The Honorable Dennis W. Dohnal 1999
The Honorable Paul F. Sheridan 2000
The Honorable Donald H. Kent 2001
Craig S. Cooley, Esquire 2002
Prof. Robert E. Shepherd 2003
Richard Brydges, Esquire 2004
Overton P. Pollard, Esquire 2005
The Honorable Paul B. Ebert 2006
Rodney G. Leffler 2007
Prof. Ronald J. Bacigal 2008
The Honorable Jere M.H. Willis Jr. 2010
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Virginia State Bar Criminal Law SectionBoard of Governors 2010-2011
Elizabeth L. Keller, Staff Liaison
Newsletter Editor: Professor Ronald J. Bacigal, University of Richmond School of Law
www.vsb.org/site/sections/criminal
StatEmENtS oR ExPRESSioNS of oPiNioN oR commENtS aPPEaRiNg hEREiN aRE thoSE of thE EditoRS aNd coNtRiBUtoRS aNd Not NEcESSaRiLy thoSE of thE StatE BaR oR SEctioN.
hon. dennis W. dohnal, Ex-Officio, Judicialhon. charles S. Sharp, Ex-Officio, Judicial
hon. ashley K. tunner, Ex-Officio, Judicialhon. James S. yoffy, Ex-Officio, Judicial
Joel R. BranscomJames a. Bullard, Jr.claire g. cardwell
Linda d. curtisdavid J. damico
francis mcQ. Lawrence
andrea L. moseleyJeffrey a. Swartz
Reno S. harp, iii, Ex Officiohon. Neil h. macBride, Ex Officio U.S. attorney, Eastern district of Virginia
carolyn V. grady, Chaircasey R. Stevens, Vice Chair
Lisa K. caruso, SecretaryRichard E. trodden Immediate Past Chair
NEWSCriminal Law FIRSTCLASS
U.S.POSTAGEPAID
PERMITNO.709RICHMONDVIRGINIA STATE BAR
EIGHTH & MAIN BUILDING707 EAST MAIN STREET, SUITE 1500RIcHMOND, VIRGINIA 23219-2800
Casey R. Stevens, ChairLisa K. Caruso, Vice Chair
Francis McQ. Lawrence, SecretaryCarolyn V. Grady,
Immediate Past Chair
Joel R. BranscomClaire G. Cardwell
Linda D. CurtisColette Wallace McEachin
Robert G. Morecock
Andrea L. MoseleyTheo K. Stamos
S. Eugene Fishel IV, Ex Officio Reno S. Harp, III, Ex Officio
Hon. Neil H. MacBride, Ex OfficioU.S. Attorney, Eastern District of Virginia
Virginia State Bar Criminal Law SectionBoard of Governors 2011-2012
Hon. Ivan D. Davis, Ex-Officio, JudicialHon. Michael E. McGinty, Ex-Officio, Judicial
Hon. Charles S. Sharp, Ex Officio, JudicialHon. Ashley K. Tunner, Ex Officio, Judicial
