ANALYSIS OF MAY 12, 2009 CAV OPINIONS
[Posted May 12, 2009] The Attorney General scores a clean knockout today, as the Court of Appeals hands down four published opinions in criminal appeals, all of them affirmances.
In a fairly unsurprising development, an appellant’s convictions for possessing drugs within 1000 feet of a school with intent to distribute are affirmed. In Fullwood v. Commonwealth, the appellant complained that he suffered two convictions despite only being in possession once. The problem is that he possessed two different drugs at the time – marijuana and cocaine – with the requisite intent.
Fullwood argued that Double Jeopardy considerations forbade the trial court from convicting him twice for the same event. The Supreme Court has already rejected such an argument in parallel indictments for conspiracy, and today the Court of Appeals does the same things for the actual possession. The court notes today that its recent opinion in Lane v. Commonwealth forecast as much; it concludes that “possession of each substance violates separate sections of the Code.”
You can’t blame the appellant in Scott v. Commonwealth for feeling like he’s getting a multijurisdictional beat down. Not that he hasn’t earned one; between here and
We here in Virginia are on top of things; his Virginia probation officer found out about the Ohio convictions, so Scott was hauled back down here for yet another probation violation hearing. When he got here, he complained that he had already been sentenced for that offense in
This is, you have to admit, an interesting puzzle – can the courts of
Now Scott is really feeling oppressed. He’s been convicted in two different courts, in two different states, for exactly the same thing (this isn’t a situation like Fullwood’s above). That isn’t supposed to happen, his lawyer tells him. That lawyer then went out and got a writ from the Court of Appeals.
But hope dies fitfully today, as the CAV affirms. The analysis is very interesting; first the court must determine whether the
That gets us to the point where the
This short (8 1/2 pages) opinion is a very interesting explication of these conflict of laws principles, and is well worth a read by any criminal law practitioner.
The best evidence rule gets a judicial workout today in Brown v. Commonwealth, a larceny case arising in
As you will have surmised, the crab legs were not negligently left behind in the restroom. The diligent florist had the presence of mind to note toe license plate of the departing vehicle.
Meanwhile the security guard went to a room where the store had monitors for video cameras. Sure enough, one of those was trained on the part of the seafood counter where the crab legs and shrimp were kept, and that recording depicted the three men, one of whom was Brown, grabbing the bags. A similar camera showed them walking down a hall toward the restroom.
The issue at trial is whether the security guy should be permitted to testify as to what he saw on the video. Brown objected that the testimony constituted hearsay, but he never preserved that issue for appellate review. He did, however, press his claim that the best evidence of what was on the tape should be the tape itself; not some security guy telling what he thought he saw. The trial court felt that the best evidence rule only applied to writings, not to video images, so it permitted the security guy to testify.
On appeal, the Court of Appeals notes that the rule as originally formulated does only apply to writings, so it looks like the trial judge got it right. It then points out that 42 states plus the Federal Rules of Evidence specifically include photographs within the definition of the rule. Now it’s looking good for Brown. But