Criminal Law
Volume 40, Number 3
{
January 2011
}
NEWS
Published by the Criminal Law Section of the Virginia State Bar for its members
41st Annual Seminar Program Confirmed
February 4, 2011 - Charlottesville
Judge Barbara Milano Keenan to Speak;
February 11, 2011 - Williamsburg
Justice Leroy F. Millette, Jr. to Speak
The detailed seminar schedule and
registration form are available at http://
www.vsb.org/site/sections/criminal/. The
seminar program will begin at 8:15 at
each location, with welcoming remarks
from the section’s Chair, Carolyn V.
Grady, followed by the annual lecture
on Recent Developments in Criminal
Law and Procedure by Professor Ronald
Bacigal from the University of Richmond.
Following a coffee break, Judge John
Doyle and Judge Jerrauld Jones will speak
at 10:00 a.m. on Juvenile Sentencing
in the Circuit Court. At 10:30 a.m.
Melinda Douglas and James Keeling
will present Alternative Dispositions in
Circuit Court. At 11:30, Judge William
Petty will address Effective Visual
Presentations. Judge Barbara M. Keenan
of the Fourth Circuit Court of Appeals will
be the luncheon speaker in Charlottesville,
while Justice Leroy F. Millette, Jr. will
speak at the Williamsburg luncheon. The
afternoon session will begin at 1:30 with
the traditional presentation on Ethical
Issues in the Practice of Criminal Law,
led by Judge Dennis Dohnal and Rodney
Leffler. James Willett and Nina Ginsberg
will follow at 2:45 with a discussion
of Padilla v. Kentucky. The final topic
for the day, beginning at 3:30 will be
Sean Mitchell’s presentation of Social
Networking.
Criminal Law News
January 2011
MORNING LECTURERS
Ron Bacigal is a Professor of Law at the University
of Richmond, and the
Reporter of criminal law
decision for the Court of
Appeals of Virginia. He
graduated summa cum laude
from Washington and Lee
Law School and did graduate study at The Hague as
a Fulbright Scholar. He served as a law clerk to
U.S. District Judge Ted Dalton, and served as a
Lieutenant in the Navy JAG. He is the author of
VIRGINIA CRIMINAL PROCEUDRE [with an
accompanying form book], VIRGINIA CRIMINAL
OFFENSES AND DEFENSES, VIRGINIA JURY
INSTRUCTIONS, and TRIAL OF CAPITAL
MURDER CASES IN VIRGINIA. He has received
the University of Richmond’s Distinguished Educator
Award and the Governor’s Outstanding Virginia Faculty
Member award. He was the 2008 recipient of the
Section’s Harry L. Carrico Professionalism Award.
Hon. John Doyle of the Norfolk Circuit Court
graduated from Williams
College and William &
Mary’s Marshall Wythe
School of Law. He left
the private practice of law
when elected Norfolk’s
Commonwealth’s Attorney
in November of 2000. Judge
Doyle was active with the Virginia Association of
Commonwealth’s Attorneys and the Commonwealth
Attorneys Services Council, serving as an Officer of
both organizations. Judge Doyle currently serves
on the Virginia Sentencing Commission. He previously served on the Virginia State Bar Criminal Law
Section Board of Governors, of which he is a past
Vice-Chair.
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Hon. Jerrauld Jones of the Norfolk Circuit Court
was appointed by Governor
Mark R. Warner to be the
Director of the Department
of Juvenile Justice for the
Commonwealth of Virginia. Prior to his gubernatorial
appointment, Jones was eight
times elected as a Delegate to
the Virginia General Assembly where he served over
fifteen years. He has received numerous honors,
awards, and citations for his contributions to law
and public service. He has served on the faculty of
the National Council of Juvenile and Family Court
Judges, and the National Juvenile Defender Center.
He has testified before Congress and President
Clinton appointed him to be a delegate to the White
House Conference on Youth Violence. He has represented Virginia on the Federal Advisory Committee
on Juvenile Justice (FACJJ) advising the Congress
and President of the United States of America.
Melinda Douglas is the Public Defender for the
City of Alexandria. She has
represented clients on a wide
variety of charges including
capital murder. She is presently an adjunct professor of
law at American University=s
Washington College of Law.
She is a former member of
the Board of Directors of the Virginia Association of
Criminal Defense Lawyers, and a former chair of
the Board of Governors of the Criminal Law Section
of the Virginia State Bar. She presently serves on the
Board of Directors of several organizations that work
on criminal justice and offender rehabilitation issues.
Ms. Douglas has served on task forces convened
by the Virginia Supreme Court to study criminal
justice issues such as jury reform, protective orders,
and batterer intervention and treatment programs
in domestic violence cases. She also worked on a
task force created by the Virginia Bar Association to
study competency and sanity issues.
Criminal Law News
January 2011
James Keeling started with the Virginia
Department of Corrections
in 1984 as a Correctional
Officer. He has worked as
a Rehabilitation Counselor,
Operations Officer, TC
Program Director and
Assistant Warden within
the Virginia Department of
Corrections. He has worked as Assistant Warden
at a variety of security levels from Low Medium to
Maximum security to include the management of
Death Row. He holds a Psychology degree from the
University of Texas.
Hon. William Petty is a 1971 graduate of the
College of William and Mary
and received his law degree
in 1974 from the College’s
Marshall-Wythe School of
Law. Upon graduation he
began work for the firm of
White, Elliott and Bundy in
Abingdon, Virginia with a
practice focusing on workmen’s compensation and
federal black lung litigation. In 1976 he became
an assistant Commonwealth’s Attorney for the City
of Lynchburg. Two years later he was elected
Commonwealth’s Attorney for that jurisdiction and
he served in that capacity for twenty-eight years.
In 2006 he was elected by the Virginia General
Assembly to his current position as a judge of the
Court of Appeals of Virginia. As an appointee of
the Governor he served two terms on the Virginia
Criminal Sentencing Commission and the Virginia
State Crime Commission. He has been a lecturer
for various state prosecution associations and the
National College of District Attorneys. He also
served as a faculty member of the National Advocacy
Center in Columbia, S.C. He is a past president
of the Virginia Association of Commonwealth’s
Attorneys and also served as Chairman of the
Commonwealth’s Attorneys Services Council, the
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Virginia State Bar Criminal Law Section, and the
Virginia State Bar Legal Ethics Committee.
Hon. Dennis Dohnal is currently a United States
Magistrate Judge for the
Eastern District of Virginia.
He has also served as Special
Counsel for the Division of
Legislative Services for the
Virginia General Assembly.
He is a former President of
both the Bar Association of
the City of Richmond and the Richmond Criminal
Bar Association. He has served as Chair of the
Virginia State Bar’s Special Committee to Study
the Virginia Code of Professional Responsibility;
as a member of the Third District Disciplinary
Committee of the Virginia State Bar; and as a
member of the Executive Committee and Council
of the Virginia State Bar. Judge Dohnal has also
served as Chair of the Special Committee on CourtAppointed Fees of the Virginia Supreme Court. He
is a member of the Virginia Law Foundation and
served as Chair of the Virginia State Bar’s Criminal
Law Section from 1983-1984, receiving the Section’s
Harry L. Carrico Professionalism Award in 1999.
Rodney Leffler served as a police officer, and
subsequently as an Assistant
Commonwealth’s Attorney
in Fairfax. He is currently a partner in the firm of
Leffler & Hyland, and is
also a substitute judge in the
19th Judicial District. He
is an Adjunct Professor of
Professional Responsibility at the George Mason
University School of Law, a Fellow of the American
college of Trial Lawyers, has been named one of
Virginia’s Legal Elite and called the “man to see
in Northern Virginia:” by the Legal Times.
He
was Chair of the Criminal law Section’s Board of
Governors in 1998-99, and received the Section’s
Criminal Law News
January 2011
Harry L. Carrico Professionalism Award in 2007.
James Willett is a past chair of the Section
on Criminal Law of
the Virginia State Bar.
He is a fellow of the
American College of Trial
Lawyers. He is a recipient of the Arthur Sinclair
Professionalism Award and
the Warren B. Von Schuch
Distinguished Prosecutor Award.
Nina Ginsberg is a founding partner of DiMuro
Ginsberg. In 2002, she was
named one of the top 75
lawyers in Washington by
Washingtonian Magazine. Ms.
Ginsberg concentrates her
nationwide practice on complex criminal trial and appellate litigation before federal
and state courts and military commissions. She
has represented individuals and corporations in
a wide range of matters, with a focus on national
security law, white collar investigations and prosecution, financial and securities fraud, computer
crime, copyright fraud, and professional ethics. Ms.
Ginsberg has served as an adjunct faculty member
at the George Washington University and George
Mason University Schools of Law and has taught
the Virginia State Bar’s Mandatory Professionalism
Course. She also served on the Virginia State Bar
Council from 1997 to 2003 and was a member of
the Board of Governors of the Criminal Law Section
from 2006 to 2010. Ms. Ginsberg is a member of
the Editorial Board of the Criminal Law Advocacy
Reporter and is a frequent lecturer and commentator to state and local bar associations and national
news programs. Ms. Ginsberg was also recently
appointed by the Virginia Supreme Court to sit as
a member on Medical Malpractice Review Panels.
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Sean Mitchell is an investigator with the Federal
Public Defender’s Office
for the Eastern District of
Virginia (EDVA).
He
has worked in that capacity since June 2007 and is
adept at the use of popular social media in criminal
defense investigations. Sean
is a certified member of the National Defender
Investigation Association. His resume also includes
prior employment as a senior federal probation
officer for the U.S. District Court-EDVA and prior
employment as a compensation coordinator for the
Norfolk Commonwealth Attorney’s Victim/Witness
Assistance Program. Sean graduated with honors
from Old Dominion University where he earned
a Bachelor of Science degree with emphases in
Criminal Justice and Psychology.
MEMBER RESOURCES AREA
http://www.vsb.org/site/sections/
criminal/
ELECTRONIC NEWSLETTERS &
DIRECTORY FOR SECTION MEMBERS
Don’t miss the opportunity to receive your newsletters electronically. It’s simple…if you have provided
your email address as part of your official address of
record with the Virginia State Bar, you will receive
future newsletters electronically. The newsletters will
also be posted on the section’s website in January. A
directory of section members will be added to the section’s website.
Visit the VSB’s website at https://member.vsb.
org/vsbportal/ to verify or change your address of
record (home or business) and post your email address.
You will be given the opportunity to limit the use of
your email address on this site.
Access the section’s website for newsletters and the
directory using this info: Username: criminallawmember;
Password: g55b8p88.
This site is available only to Section members.
Criminal Law News
January 2011
Chair’s Column
to share her viewpoint so that our elected officials
can learn what the community considers important.
I cannot tell you how many planning meetings that
I have missed, intentionally, because “it is just not
worth my time” or “it makes no difference what I
say.” I am proud to know her and am invigorated
into taking action by her actions.
Greetings
and Happy New
Year to All
Carrie Grady
Chair
I am excited to report that we are all set and ready for
our February Seminars. I will be at both locations
so please find me and say hello. I am also happy to
receive any feedback or ideas for the future of our
section. Your Board of Governors is always looking
to you, the membership, to help keep our section a
leader in the Virginia State Bar.
This is the time of year that we all make our
resolutions and then break them. Perhaps many
of you have already broken what you promised to
do differently this year - try to lose weight, read
more or watch less television, cook better meals, be
nicer to people or spend more time with the family.
To generalize, I think that many of these good
intentions involve improving some part of ourselves,
not necessarily society as a whole.
While these are good changes to make, I challenge
all of us to think outside of ourselves and become
more involved in our communities. We have the
greatest political system in the world; one that relies
on representation by the few for the benefit of the
many. Over the past few elections, I have come to
believe that it is not enough for me to simply vote.
That is a sad statement from me, a government major
in college. I think that it is important to become
involved in the governance of our communities,
localities and national government after election day.
I can share one story of why I am trying to change
my level of activity in the new year. I was recently
uplifted by a friend who is not an attorney - just a
concerned citizen - who attended a planning meeting
about road improvements to Forest Hill Avenue and
made her opinion known. She spent her spare time
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Along those lines, we all hear complaints from
our fellow attorneys about actions of the General
Assembly. Or we complain about the state of our
government. Rather than complain in vain, we
need to take the time to make our thoughts known
to those who can make change, similar to efforts
of the Virginia Association of Commonwealth=s
Attorneys or the Virginia Association of Criminal
Defense Lawyers. Better yet, our government would
be better served if more attorneys become actively
involved in politics and use our legal education for
the common good. It is time for all of us to speak up
or forever hold our peace.
Q
VIRGINIA COURT OF
APPEALS DECISIONS
Redmond v. Commonwealth, Va. App. ,
S.E.2d (11/16). Case of first impression addressing the government’s entry of a dwelling through
subterfuge. A police officer “posing as a potential
buyer of real property, entered a defendant’s home
that was listed for sale and thereby either viewed
of obtained evidence against him. … The police
officers’ actions while inside the property did not
exceed what one would expect of a prospective
buyer. … Finding that the officers did not violate
any reasonable expectation of privacy of appellant by entering the home as prospective buyers,
we conclude the trial court did not err in denying
appellant’s motion to suppress the evidence.”
Criminal Law News
January 2011
Powell v. Commonwealth, Va. App. , S.E.2d
(11/30). The Court interpreted Arizona v. Gant’s
statement that a vehicle can be searched when it
is “reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.”
The Court stated that “presumably,” this standard
requires less than probable cause, … [and ] is akin
to the ‘reasonable suspicion’ standard required to
justify a Terry search.”
Thomas v. Commonwealth, Va. App. , S.E.2d
(11/16). The court found the police properly
stopped an auto to issue a summons to its driver for
crossing a double line. “Given that authority, the
officers likewise had the power to obtain the registration for the vehicle and request the identities of
its occupants, to seek radio dispatch confirmation
of the information obtained from the vehicle occupants, to detain Thomas, a passenger, during the
duration of the stop, to ask questions unrelated to
the traffic violation, to order the driver and Thomas
out of the vehicle, to walk a drug-sniffing dog
around the vehicle, and to seize Thomas’s handgun
the moment they saw it, because all these actions
took place before the traffic stop had ended.”
Hall v. Commonwealth, Va. , S.E.2d ((11/4).
The officer “spoke words of arrest and actually
touched Hall for the stated purpose of arrest. Thus,
at that moment, notwithstanding Hall’s subsequent
flight, the arrest was effected and Hall was in custody. Accordingly, we conclude that the evidence was
sufficient to prove that Hall was in ‘custody’ pursuant to Code s18.2-478 prior to his forcibly wrestling
free of [the officer’s] grasp, and that Hall ‘escaped’
from custody ‘by force or violence’ in violation of
code s18.2-478.”
McGhee v. Commonwealth, Va. , S.E.2d (11/4).
There was probable cause to arrest defendant for
public intoxication when the officer observed the
strong odor of alcohol coming from defendant’s
breath, his very bloodshot eyes, and slurred speech.
Page 6
Sidney v. Commonwealth, Va. , S.E.2d (11/4).
There was reasonable suspicion to stop the defendant based upon an anonymous tip that defendant
had outstanding arrest warrants, and confirmation
of the existence of warrants by a police dispatcher.
Cited US v. Hensley, 469 U.S. 221, for imputing
dispatcher’s knowledge to arresting officers, and
Code 19.2-81(F) authorizing arrest “for an alleged
misdemeanor not committed in his presence when
the officer receives a radio message from his department … that a warrant or capias for such offense is
on file.”
Williams v. Commonwealth, Va. App. ,
S.E.2d (12/14). The Court interpreted Code s18.2250 dealing with possessing a controlled drug not
obtained by a valid prescription. “The exception,
a valid prescription, justifies what would otherwise
be criminal conduct. The presence of a valid prescription is ‘peculiarly within the knowledge of the
[appellant.’ Thus, we conclude the presence of a
valid prescription is an affirmative defense for which
the appellant has the burden of going forward with
supporting evidence.”
Wood v. Commonwealth, Va. App. , S.E.2d
(11/23). In upholding convictions for felony child
endangerment, the Court pointed to a number of
aggravating factors, such as defendant operating the
car in a “semi-conscious state” with her children in
the car. But the court also stressed that defendant’s
high level of intoxication “alone justifies a finding of
gross, wanton, and culpable conduct.”
Collins v. Commonwealth, Va. App. , S.E.2d
(12/14). “The General Assembly has enacted statutes specifically regulating the licensing and practice
of bail enforcement agents, abrogating any common
law authority that in the past may have permitted
out-of-state bondsmen to enter Virginia and forcibly
take a bailee back to another state. As a result, [a
North Carolina bondsman] had no legal justification for his attempt here to abduct [another]. …
Therefore, we affirm appellant’s convictions for
Criminal Law News
January 2011
attempted abduction and use of a firearm in the
commission of that felony.”
McDowell v. Commonwealth, Va. App. ,
S.E.2d (11/23). “The plain language of [Code
s18.2-118] creates a method for the lessee to be
made aware that the lease has expired and that he
can avoid criminal prosecution by returning the
property within ten days. A lessee’s failure to do
so gives rise to a prima facie showing of ‘intent to
defraud.’ Notice must be mailed by certified mail
and addressed to lessee at the address stated in the
lease. … Providing a more precise address [adding
the apartment number] does not violate the statute.
Therefore, the Commonwealth was entitled to the
prima facie showing of ‘fraudulent intent.’”
Brown v. Commonwealth, Va. App. , S.E.2d
(12/21/10). Although a mental health expert
opined that appellant “was competent to stand trial
on October 31, 2008, appellant was not legally
restored to competency until the circuit court found
him competent to stand trial on July 10, 2009. As a
result, the tolling of the statutory speedy trial period
continued until July 10, 2009.” Assuming that the
circuit court violated Code s19.2-169.1(E) by failing
to “promptly” determine appellant’s competency,
nothing suggests that the appropriate remedy for a
violation of that section is the resumption of the running of the speedy trial period. That section provides
that either the defendant or the Commonwealth
may request a hearing on the defendant’s competency, thus the defendant has a procedural remedy
to compel the trial court to act promptly.
SAVE THE DATE
73rd Annual Meeting
Virginia State Bar – Virginia Beach
June 16-19, 2011
Joint CLE Program with Family Law Section
Friday, June 17 (1.5 CLE; .5 Ethics)
Battle on the Home Front: Veterans in the Court System- A Closer
Look a PTSD, Collateral Damages of Criminal Convictions and Family
Law Issues
Paul Galanti, the Commissioner of Veterans Services for the Commonwealth of
Virginia, will moderate a panel discussion on issues confronting court-involved veterans.
Look for Annual Meeting registration information in April at www.vsb.org
Page 7
Criminal Law
PRST STD
U.S. POSTAGE
NEWS
PAID
PERMIT NO. 709
RICHMOND
Virginia State Bar
Eighth & Main Building
707 East Main Street, Suite 1500
Richmond, Virginia 23219-2800
Virginia State Bar Criminal Law Section
Board of Governors 2010-2011
carolyn V. grady, Chair
casey R. Stevens, Vice Chair
Lisa K. caruso, Secretary
Richard E. trodden
Immediate Past Chair
Joel R. Branscom
James a. Bullard, Jr.
claire g. cardwell
Linda d. curtis
david J. damico
francis mcQ. Lawrence
andrea L. moseley
Jeffrey a. Swartz
Reno S. harp, iii, Ex Officio
hon. Neil h. macBride, Ex Officio
U.S. attorney, Eastern district of Virginia
hon. dennis W. dohnal, Ex-Officio, Judicial
hon. charles S. Sharp, Ex-Officio, Judicial
hon. ashley K. tunner, Ex-Officio, Judicial
hon. James S. yoffy, Ex-Officio, Judicial
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.