[Posted May 28, 2011] I was out of the office for most of the past week, so here’s a brief synopsis of some of the opinions handed down this week, just to catch you up.

The CAV announced one published opinion in a mob-violence case, Johnson v. Commonwealth. There’s a very predictable rejection of Johnson’s sufficiency challenge – one of the rejected arguments was that the trial judge, sitting without a jury, shouldn’t have believed a prosecution witness who had also been charged in the attack – but the real reason this gets published, in my view, is the Double Jeopardy angle.

Johnson was convicted of malicious wounding and of maiming by mob. As St. Blockburger assures us, if each crime contains one element that the other doesn’t, then double prosecutions are permissible. At first glance, this argument looks promising. The maiming charge requires proof of “maliciously or unlawfully [wounding] any person . . . with intent to maim, disable, disfigure, or kill him . . . .” The malicious wounding statute contains similar language: “If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall . . . be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.”

Despite this congruence, the CAV affirms the double conviction, because of the use in the mob statute of the vital little word, or. It rules that since that statute (remember, viewed in the abstract) contains a separate provision for malicious or unlawful wounding, that gives the trial court a place to hang its hat.

The analysis of this issue is, to say the least, a close call, and it appears that the Supreme Court hasn’t weighed in on the question yet. My best guess is that it will, assuming Johnson seeks further appellate review. To see the dispute for yourself, check pages 15-20 of this week’s opinion.

The justices hand down one unpublished order this week, affirming the judgment in Miller v. Commonwealth on harmless-error grounds. The appeal implicates several convictions involving armed robberies. At trial, the prosecution introduced a ballistics-test certificate showing that certain bullet casings came from a handgun recovered at the crime scene. But the person who conducted that test didn’t testify. The Commonwealth conceded on appeal that that admission violated Melendez-Diaz v. Massachusetts.

Miller still loses – quite correctly, in my view – because the evidence of his guilt was overwhelming. He was essentially apprehended at the crime scene, just a few moments after robbing a couple of their valuables. The police arrived so quickly, in fact, that Miller left behind many of the valuables that he had ordered the victims to place on the ground. He also, to his undoubted chagrin, left behind his handgun. Having been caught red-handed, my only unanswered question is why a ballistics test was necessary at all. The brief recitation of the facts in this order doesn’t state that any shots were fired at the couple (or at anyone else, for that matter). Since the charges didn’t involve shooting anyone, the evidence was perfectly satisfactory without any ballistics test, so the failure to call the test operator was essentially irrelevant to the case.

The Fourth handed down a few published opinions this week, but the one that particularly caught my eye was Monday’s ruling in US v. Doyle. In that appeal, a panel of the court takes the remarkable step of reversing a child-pornography conviction based on the inadequacy of the affidavit that led to the issuance of the underlying search warrant.

Here’s the relevant language of that affidavit: “Three minor children have come forward and stated that [Doyle] has sexually assaulted them at the Doyle residence. One victims [sic] disclosed to an Uncle that Doyle had shown the victim pictures of nude children.” The Sheriff’s Department captain who signed the affidavit assured the reader that he had verified the accuracy of the information by reviewing “[d]etailed Victim statements of the assault and of the Doyle residence, where victims describe the assailants [sic] bedroom and vehicle he drives and description of the home. Which has all been verified by Sheriffs [sic] Dept.”

A magistrate originally recommended that Doyle’s motion to suppress be granted, but the district court (the Western District of Virginia) disagreed, overruling the motion based on the good-faith exception to the warrant requirement. Doyle was convicted and appealed to the Fourth Circuit. On Monday, that court ruled that the motion to suppress should have been granted. The affidavit mentions nothing about when the pictures were shown to the children, or whether they were in fact pornographic.

The court concludes that “the deficiencies in the affidavit, which were not remedied by Rouse’s investigation summary, were so great as to render it objectively unreasonable for [the executing deputy] to rely on the warrant.” That means that the fruits of the search should have been suppressed, as the good-faith exception found in US v. Leon can’t help the prosecution here. In language that will undoubtedly be quoted extensively in future suppression motions, the opinion concludes:

a magistrate’s signature cannot render reasonable an objectively unreasonable failure to support a warrant application with evidence necessary to demonstrate probable cause. Here, the information before the magistrate failed to demonstrate whether the pictures allegedly possessed by Doyle were in fact illegal to possess and failed to indicate when Doyle allegedly possessed them. Upholding this warrant would ratify police reliance on questionable indicia of probable cause to justify a search of a residence for child pornography without any regard to when the child pornography supposedly existed in the residence.

Judge Duncan files a concurring opinion, reaching the same destination by way of a different road. She would base her rejection of the affidavit on a host of factors, some of which the majority (written by Judge Wynn, joined by Judge Designate Berger) discounted. Her approach would actually be a narrower victory for the defense bar, since it considers all of the circumstances of the case. The majority opinion is likely to be more helpful to lawyers filing suppression motions, because they won’t have to show the number of factors cited by Judge Duncan.