Posted on August 18, 2021 in Criminal Defense

Prosecutors eagerly rely on the testimony of jailhouse informants, who are people who spent time in jail with a defendant and allegedly spoke with them about the crimes they are charged with. The testimony of an informant who was housed with a defendant while they were in jail can be persuasive to a jury, as defendants often confess to criminal conduct to others in jail shortly after they are arrested.

Persons who are charged with crimes are often reluctant to testify against others who they met in jail, and prosecutors sometimes offer incentives to jailhouse informants to get them to testify on the state’s behalf. These incentives, such as shortened sentences or dropped charges, can sometimes cause jailhouse informants to testify dishonestly and tell prosecutors “what they want to hear” in order to benefit the informant themself. Because of this, defendants and defense attorneys are likely to challenge the testimony of jailhouse informants however they can.

The Virginia Court of Appeals recently ruled that the testimony of a jailhouse informant in a defendant’s robbery case was permissible, even though the prosecutor didn’t tell the defense attorney that he would be testifying until the day of trial. The defendant in the recently decided case was charged with armed robbery after he allegedly robbed a convenience store. In addition to the workers at the convenience store during the robbery, the prosecution sought to call a witness who met the defendant in jail after his arrest. Although this jailhouse informant witness was listed as a possible witness in the state’s disclosures, the prosecutor told defense counsel that the informant would not testify unless the defendant himself testified in his own defense. The defendant chose not to testify, but the prosecutor reneged on his word and called the informant to testify about conversations he had with the defendant while they were housed together. The defendant was ultimately convicted of several charges at trial and was given a substantial sentence as a result.

Continue Reading ››

 Posted on August 10, 2021 in Criminal Defense

Both the United States Constitution and the Virginia State Constitution contain provisions that prevent a criminal defendant from being charged or punished twice for the same offense. These protections from "double jeopardy" help form the backbone of the procedural due process rights that criminal defendants are entitled to under both the state and federal constitutions. The Virginia Court of Appeals recently decided to reverse a defendant’s convictions on these grounds, finding that he could not be convicted of two charges for the same conduct, and that the prosecution would have to choose one or the other charge upon a retrial.

The defendant in the recently decided case was charged with several crimes after an alleged burglary. Police were tipped off to the defendant after he was observed spending some old currency that appeared to be the same as that which was reported missing from the victim’s home. After serving a search warrant at the defendant’s house, police found allegedly stolen items in his possession, including jewelry, currency, firearms, and ammunition. Among other charges, the defendant was charged with possession of a firearm by a felon as well as possession of ammunition by a felon. At trial, the defendant was ultimately convicted of several crimes, including both the enhanced firearm and ammunition offenses.

Continue Reading ››

 Posted on August 01, 2021 in Criminal Defense

Federal and State criminal statutes commonly include offenses that are enhanced based on their relation to other criminal conduct. Many of these enhanced offenses are made more serious by a defendant’s use of a firearm while committing or attempting to commit another offense. One federal statute, commonly known as the Armed Career Criminal Act (ACCA), is used to make other criminal acts more serious if they are committed with a firearm. The United States Court of Appeals for the Fourth Circuit, which includes Virginia, recently decided an appeal by a defendant who was charged with a felony under the ACCA.

The defendant from the recently decided appeal was arrested after a home invasion robbery. According to the facts outlined in the judicial opinion, the armed defendant and others had broken into the home of a suspected drug dealer with the intention of stealing money and a large quantity of cocaine. The defendants did not find any drugs at the apartment, however, they did steal money and a firearm. In addition to being charged with robbery and attempted drug trafficking, the defendant was charged with another felony under the ACCA, for brandishing a firearm during a crime of violence and a drug trafficking offense. The defendant pleaded guilty to the robbery and the ACCA offense and the drug trafficking charge was dropped.

Continue Reading ››

 Posted on July 30, 2021 in Criminal Defense

In a recent opinion, a Virginia appellate court upheld a trial court’s decision to deny the defendant’s motion to strike and reconsider despite the defendant claiming that additional elements are required to prove marital rape. The decision provides valuable insight into marital rape law in Virginia.

According to the court’s opinion, the case involved a married couple who had a rocky relationship but shared a bed together. The wife alleged that while she was sleeping one night, she woke up to find her husband (the defendant) on top of her and that, despite her protests, he engaged in non-consensual intercourse with her. The next day after work, the wife reported the rape incident to the police and was examined at a hospital where the examiner took photos of the bruises on her leg. The defendant was questioned by police, and at first, denied having intercourse with her within the past month. However, the defendant’s DNA evidence was found. Additionally, the defendant had a scratch on his shoulder. The wife also had sent the defendant a text the day after the incident asking why he did that to her.

Continue Reading ››

 Posted on July 25, 2021 in Criminal Defense

Earlier this year, a state appellate court issued a written opinion in a Virginia case involving a woman convicted of driving on a suspended license. The appeal involves the lower court’s decision preventing the defendant from pursuing an appeal of her conviction. Ultimately, the court concluded that the defendant’s appeal was proper and that the lower court should not have precluded her from bringing her appeal.

The Facts of the Case

According to the court’s opinion, the defendant was issued a summons on July 15, 2016, indicating that she was charged with driving on a suspended license. It was her fifth offense. The woman was convicted and filed an appeal with the circuit court. Defendants convicted in the district court have an automatic right to a new trial in circuit court.

In her appeal, the defendant raised several challenges to her conviction. However, the circuit court rejected each of her claims, and she was again convicted. The defendant then filed another appeal, this time to the appellate court. She referenced the circuit court case in her filing, naming a county official as the "appellee," which is the party who is supposed to respond to the appeal.

Continue Reading ››

 Posted on July 11, 2021 in Criminal Defense

Recently, a state appellate court issued a written opinion in a Virginia gun case discussing whether a detective’s warrantless search of a phone violated the defendant’s protection against unreasonable searches and seizures. Ultimately, the court concluded that the search was legal and that the motion to suppress was rightfully denied by the lower court. The case illustrates when evidence obtained from a detective’s warrantless search can still be used in the trial.

The Facts of the Case

According to the court’s opinion, while attempting to retrieve his phone from inside the restaurant, the defendant approached a waitress in a very hostile manner. A private security guard stepped in front of the defendant, and the defendant eventually urged his friend to grab a gun from the car. The security guard drew his own weapon and asked the individual to drop his firearm. The individual put down the gun. Defendant then picked up the firearm and began firing his gun. The security guard fired back and struck the vehicle, prompting the defendant and his friend to drive away. The defendant did not return.

Continue Reading ››

 Posted on July 03, 2021 in Criminal Defense

Traditionally, when a defendant seeks to challenge the legality of his arrest, he does so in a motion to suppress. In a motion to suppress, the court hears evidence about the recovery of the evidence in question and determines whether the state or federal constitution requires the suppression of the evidence.

However, in a recent case before the Supreme Court of Virginia, the court reversed the conviction of a defendant who was arrested for DUI. The facts of the case are straightforward: police attempted to stop a boater, who sped away and eventually ran ashore. The boater got out and ran. Law enforcement eventually caught him and ultimately charged him with operating a boat under the influence. The defendant refused a breath or blood test.

The defendant did not file a pre-trial motion to suppress. Instead, at trial, the defendant attempted to argue that his arrest was unlawful. However, the prosecution objected, claiming that the defendant waived his right to challenge the legality of his arrest by not filing a motion to suppress. The trial court agreed, prevented the defendant from challenging the lawfulness of his arrest, and then convicted him. The defendant appealed.

Continue Reading ››

 Posted on June 30, 2021 in Criminal Defense

A defendant recently appealed his Virginia conviction for possession of marijuana and various firearm offenses. The accused filed multiple motions to suppress, arguing that he had a reasonable expectation of privacy in the residence. On appeal, the court reviewed the evidence the defendant presented at his suppression hearing.

According to the record, police officers discovered the defendant’s location and attempted to serve outstanding arrest warrants. The home belonged to the mother of the defendant’s minor daughter; the defendant did not own or rent the home. When the defendant did not open the door for law enforcement, the officers entered the residence. The officers did not find the accused, but after detecting the smell of marijuana, they searched the residence and found him hiding near a shed.

The defendant argued that because he did not live at the home, the officers could not “enter and search the home of a third party” under a warrant for the defendant. The Commonwealth argued that they believed the accused lived at the home with the mother of his child. In the alternative, the Commonwealth argued that the defendant could not assert the “vicarious Fourth Amendment” rights of a third party.

Continue Reading ››

 Posted on June 16, 2021 in Criminal Defense

Recently, the state supreme court issued an opinion in a case involving a man who allegedly fired a gun while celebrating the 4th of July. The case required the court to determine if the defendant’s statements to a detective were taken in violation of his constitutional rights. Ultimately, the court dodged the question at issue, finding that even if the lower court’s ruling was incorrect, any error stemming from the decision was harmless.

The Facts of the Case

According to the court’s opinion, police received a call reporting gunshots on the 4th of July. Upon responding to the scene, officers spoke with two witnesses. One of the witnesses provided the officers with time-stamped video surveillance footage showing a man carrying a small black object in his hand.

Based on the footage, officers arrested the defendant and took him down to the station for questioning. While there, the defendant asked a detective, “Hey, can you call my wife to tell her to call my lawyer for me?” The detective indicated he would call the defendant’s wife. However, before he did, another detective came into the room and read the defendant his Miranda warnings.

Continue Reading ››

 Posted on June 09, 2021 in Criminal Defense

The United States Supreme Court recently decided a case that may have a profound impact on many Virginia criminal cases. Although the case is civil in nature, it impacts state and federal search and seizure law.

The case arose following a 2015 altercation between a woman and her husband. The wife was concerned for her husband’s safety after he made disturbing remarks during an argument. In response, she called the police, and they offered to escort him to a local hospital for evaluation. The husband agreed on the condition that the police would not confiscate his handguns. The police agreed but then confiscated the handguns. The man filed a civil lawsuit against the police department after they failed to return the handguns.

A federal appeals court upheld the handgun seizure under the “community caretaking” exception to the Fourth Amendment. The appeals court reasoned that law enforcement officers are “masters of all emergencies” and, as such, they need some “elbow room” to engage determine the appropriate action in these situations. Following that decision, the man petitioned the Supreme Court to review the matter. The Supreme Court was tasked with answering whether the “community caretaking” exception extends to police officer’s entry into a private citizen’s home.

Continue Reading ››