Virginia Criminal Procedural Case Outline

The following is an outline of Virginia criminal procedure case law.  The procedural law is mainly state specific, and does not focus on constitutional law.  Constitutional procedure cases are located in separate outline.  The outline is copied from the Virginia criminal procedure section of an outline maintained by Richard Collins, an attorney at Collins & Hyman, PLC.  Because Mr. Collins created the outline for his own reference, rather than for publication, the outline contains many abbreviations.  Questions regarding the abbreviations, or case cites, can be sent to

Abuse of Discretion


Lawlor, VSC, published January 10, 2013. Discusses the “three principal ways” by which a court abuses its discretion: “when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; and when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.”




Via, VSC, published June 27, 2014.  Reversed convictions while affirming Jones, 111 Va. 862, 868 (1911): While the rule of decision in this jurisdiction is that the jury, as triers of fact, may, if they see proper to do so, convict upon the uncorroborated testimony of an accomplice alone, nevertheless, the principle is well settled that the evidence of an accomplice must be received and acted upon by the jury with great caution. The source of such evidence is tainted, and the danger of collusion between accomplices and the temptation to exculpate themselves by fixing responsibility upon others is so strong that it is the duty of the court to warn the jury against the danger of convicting upon their uncorroborated testimony. From these considerations, the generally accepted rule is that, “if two or more accomplices are produced as witnesses, they are not deemed to corroborate each other, but the same rule is applied, and the same confirmation is required, as if there were but one.”




Montgomery, COA, published August 10, 2010- trial court failed to offer D allocution prior to sentencing.  Affirmed because D did not proffer the allocution.


Amending Charges


Kelley v. Stamos, VSC, January 10, 2013.  Discusses GDC’s broad discretion to issue new warrants and amend existing warrants on its own motion.  GDC could amend DUI to reckless driving if it had not already found D guilty of the DUI.


Charles, COA, published April 29, 2014.  D charged with grand larceny. Following motion to strike on the value element, Commonwealth amended charge to petit third.  D argued that the amendment improperly changed the nature or character of the offense charged.  “[W]here there is ‘similarity of purpose and subject matter’ of the Code sections involved, ‘an amendment to an indictment [that merely] changes the Code provision under which a defendant is charged . . . does not change ‘the nature or character of the offense charged’ and is permissible under the provisions of [Code] § 19.2-231.’”  In analyzing whether an amendment to an indictment is compliant with Code § 19.2-231, the Court does not “compare the elements of the offense, but the underlying conduct of the defendant.”




Arrest Outside Jurisdiction


Wilson, 45 Va. App. 193 (2005)-  “[T]he language of the case law indicates that the ‘under color of office’ doctrine limits the power to arrest. But this doctrine does not prevent officers from making an otherwise valid citizen’s arrest just because they happen to be in uniform or otherwise clothed with the indicia of their position when making the arrest. When officers outside their jurisdiction have sufficient grounds to make a valid citizen’s arrest, the law should not require them to discard the indicia of their position before chasing and arresting a fleeing felon. Any suggestion that officers could not make a valid citizen’s arrest merely because they happened to be in uniform or happened to be in a police car at the time they inadvertently witnessed a [crime] outside their jurisdiction would be ridiculous.”


Ford, COA, unpublished, December 10, 2013- violations of state laws don’t trigger the exclusionary rule.


Bill of Particulars


Paduano, COA, published December 31, 2014. “A defendant is not entitled to a bill of particulars as a matter of right.” Goins v.Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996). Ordinarily, “an indictment sufficiently charges a statutory offense if it follows the language of the statute.” Sims v. Commonwealth, 28 Va. App. 611, 619, 507 S.E.2d 648, 652 (1998). “‘The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.’” Swisher v. Commonwealth, 256 Va. 471, 480, 506 S.E.2d 763, 768 (1998) (quoting Hevener v. Commonwealth, 189 Va. 802, 814, 54 S.E.2d 893, 899 (1949)). However, “‘when the statutory language does not in itself fully and clearly set forth all material elements of the offense,’” Sims, 28 Va. App. at 619, 507 S.E.2d at 652 (quoting 2 Charles E. Torcia, Wharton’s Criminal Procedure § 265, at 127 (13th ed. 1990)), a trial court “may direct the filing of a bill of particulars,” Code § 19.2-230. “‘The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.’” Ward v. Commonwealth, 205 Va. 564, 569, 138 S.E.2d 293, 297 (1964) (quoting Livingston v. Commonwealth, 184 Va. 830, 837, 36 S.E.2d 561, 565 (1946)).



Charging Decision


George (COA, published January 15, 2008)- explanation of the rule.


Collateral Estoppel


Rice, COA, published January 11, 2011- D acquitted of firearm related offenses by jury.  By agreement, court decided firearm by felon charge after jury verdict on related charges.  Court convicted D and D argued collateral estoppel.  The doctrine essentially holds “that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”


Davis, COA, published February 25, 2014.   D prosecuted for reckless handling of firearm in GDC along with prelims for murder, etc.  GDC dismissed reckless handling and didn’t certify felonies.  D argued in Circuit that reckless handling acquittal collaterally estopped Commonwealth.

“The party seeking the protection of collateral estoppel carries the burden of showing that the verdict in the prior action necessarily decided the precise issue he seeks to now preclude.” Rhodes, 223 Va. at 749, 292 S.E.2d at 376. However, “[t]he doctrine . . . does not apply if it appears that the prior judgment could have been grounded ‘upon an issue other than that which the defendant seeks to foreclose from consideration.’” Lee v. Commonwealth, 219 Va. 1108, 1111, 254 S.E.2d 126, 127 (1979) (quoting Ashe, 397 U.S. at 444). “Collateral estoppel becomes applicable only when the prior acquittal necessarily resolved the issue now in litigation.” Courts have to look at all the circumstances in the prior litigation.

In this case, the GDC judge found as fact that D didn’t fire the weapon.




Competency to Stand Trial


Orndorff, 271 Va. 486- describes standard.


Dang, VSC, -when the defendant has already been afforded a competency evaluation in which he is found competent, the circuit court need not order a second evaluation unless it is presented with a substantial change in circumstances.



Constitutional Rights


Magruder (VSC, February 29, 2008)- legislatures may enact reasonable regulations of constitutional rights.


Continuing Offenses


Morris, 51 Va. App. 459 (2008)- a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.


Gheorgiu, COA, published August 25, 2009- identify theft is a continuing offense.


Chambliss, COA, published October 22, 2013- Whether a conspiracy is continuing depends on the totality of the circumstances.  The following factors have been expressly considered: 1) the time periods in which the activities occurred; 2) the statutory offenses as charged in the indictments; 3) the places where the activities occurred; 4) the persons acting as co-conspirators; and 5) the overt acts or other descriptions of the offenses charged that indicate the nature and scope of the activities to be prosecuted.




Akers v. Commonwealth, 31 Va. App. 521 (2000)- a trial court may not render inconsistent verdicts during the guilt phase.


Reed v. Commonwealth, 239 Va. 594 (1990)- A jury’s rendering of inconsistent verdicts in the guilt phase, although not encouraged, does not, standing alone, provide a basis for reversal.


Date of the Offense


Farhoumand, VSC, published October 31, 2014.  In a felony case, the Commonwealth may prove the commission of a crime charged on a date different from that alleged in the indictment.  Opinion, and cases cited, leave room for argument that in cases with a date-sensitive alibi, variance between indictment and the actual offense date is a due process violation (see below under Indictments for due process considerations).




Moreau v. Fuller (VSC, June 6, 2008)- JRD judge took contributing case under advisement.  CA sought writ of mandamus to compel court to enter judgment in the case immediately and cease taking cases under advisement in the future unless there was statutory authority to do so.  Courts have inherent power to render judgment and this power extends to matters incident to the exercise of the judicial power.  It is within the inherent authority of the court to take a matter under advisement or continue it for disposition- nothing requires a court to render judgment immediately.  The VSC explicitly left open the question of whether a judge may decline to render judgment and continue the case with the promise of a particular disposition at a later date.  The order in this case says only that the court found facts sufficient and deferred judgment to a later date- this was within the proper power of the court.  Since determining guilt or innocence is a discretionary function, that act is not subject to mandamus.


Hernandez, COA, published November 17, 2009- issue was whether courts had inherent authority to dismiss criminal charges on grounds other than legal or factual merits.  Left open the question whether court could do so when defense and Commonwealth agree.  The Court noted the limited question presented in Moreau, and determined that the issue in this case was not decided in Moreau or Gibson.

No court has the sole authority to dismiss a criminal charge for any reason not based upon the legal or factual merits, unless authorized to do so by a legislature. To construe the inherent power of a court to dismiss a criminal charge on a basis other than the legal or factual merits would, by such construction, potentially authorize judicial nullification of a legislative act, in violation of separation of powers.


Taylor, COA, published June 28, 2011.  Extends reasoning in Hernandez to explicitly state that a trial court did not err by ruling that it lacked authority to reduce a charge after finding D guilty BRD of the charged offense.


Starrs, VSC, published January 10, 2014- D pled guilty and asked for deferral followed by dismissal.  Circuit Court, which found the evidence sufficient, held that it lacked authority to dismiss the charges under those circumstances.

Our precedents make clear that a guilty plea obviates the need for evidence to establish guilt, but a trial court may nevertheless hear evidence and actually convict the accused of a lesser offense. Thus, the mere acceptance and entry of a guilty plea does not constitute “a formal adjudication of guilt.” Until the court enters such a conviction order, it “has the inherent authority to take the matter under advisement or to continue the case for disposition at a later date.” Once a trial court enters a formal adjudication of guilt, it must impose the punishment prescribed by the legislature; it has no inherent authority to depart from that range of punishment.   We therefore conclude that the circuit court, upon accepting and entering Starrs’ guilty pleas in a written order, still retained the inherent authority to withhold a finding of guilt, to defer the disposition, and to consider an outcome other than a felony conviction.


Harris, published June 24, 2014.  D had a bench trial for HO.  No evidence was presented indicating that D had a substantive defense to the charge.  Instead, D requested that the court take it under advisement because D may have his license reinstated.  Trial court denied the request.

D argued that the trial court determined it lacked authority to take the matter under advisement. COA ruled that trial court denied request on the merits.

D also asked COA to order trial court to grant his request.


White, COA, published May 2, 2017.  D pled guilty to false statement on firearm consent form.  Court found evidence sufficient and deferred a finding pending a PSR.  Trial court opined that it did not have authority to reduce to misdemeanor under Taylor, which held that a trial court lacked inherent authority to defer a case and promise a future disposition.

Contains good recitation of case law.  The COA framed the issue as: “Because the Supreme Court did not provide clear guidance as to the authority of a trial court to reduce or dismiss a charge despite conceded evidence of guilt, we must cobble together an answer based on a close reading of Starrs and Taylor.”

“Just as the accused in Taylor asked the trial court to convict her of a misdemeanor instead of a felony, White admitted guilt and asked the court for a degree of judicial clemency: an outcome other than a felony conviction. There is no indication in the record that the trial court was in doubt of White’s guilt.”  “The language in Starrs must be interpreted in light of Harris. Thus, if the trial court had doubts as to White’s guilt, it had the option of deferring disposition and taking more evidence in order to determine guilt or innocence or degree of guilt.” The trial court lacked authority to defer and reduce or dismiss.




Weeks, COA, published November 10, 2009- see discussion in footnote 4.


Disclosure of Confidential Informants


Daniel, 15 Va. App. 736 (1993)- D arrested for PWID heroin.  Police stopped vehicle due to information received from CI and found drugs on D’s person, a passenger.  D’s defense was that the driver of the vehicle had been using the drugs and gave them to him to hold.  He argued that the driver was the CI.  Court held that knowledge of whether the driver was the CI could give credence to D’s theory as to how he came into possession of the drugs.




Gheorgiu, COA, published August 25, 2009- see discussion.




Brown, VSC, June 4, 2009- Two separate cases consolidated for appeal.  D1 charged with obstruction and A&B.  Obstruction NPed, and A&B taken under advisement on condition D1 complete alcohol classes.  D1 did not enter a plea to the A&B charge, which was subsequently dismissed.

D2 charged with felony child neglect.  D2 did not enter a plea, but the JDR court entered order stating it was “agreed” that court would take matter under advisement based on certain conditions.  JDR dismissed charges, and the order only stated “requirements met.”    Circuit court expunged record and Commonwealth appealed.

The threshold issue was whether Ds’ charges were eligible for expungement.  The only qualification they could have is “otherwise dismissed.”  The Court held that these cases were “otherwise dismissed” and the charges were eligible for expungement.

The next determination is whether possible dissemination of information related to charges could result in manifest injustice.  The Court did not analyze that issue- it found D1 satisfied manifest injustice element and held that Commonwealth did not present sufficient record to challenge manifest injustice element for D2.


Dressner, VSC, published January 10, 2013.  D charged with possession of marijuana.  Commonwealth amended charge to reckless driving. D convicted of reckless. D sought expungement of possession charge.  Court held that, since reckless is not a lesser-included offense of possession, the possession charge was otherwise dismissed.


Inconsistent Verdicts


Reed v. Commonwealth, 239 Va. 594, 391 S.E.2d 75 (1990). Upheld use of firearm in commission of robbery in a case in which the jury acquitted of robbery.




Perry v. New Hampshire, USC, published January 11, 2012- unduly suggestive pre-trial identifications not the result of law enforcement conduct are not subject to pre-screening.  Normal opportunity for cross-examination is sufficient.


Smith, COA, published November 6, 2012.  Police did a photo array and V identified D.  D’s arrest photo not available, so police took a picture of D and used that photo. However, because the size of the photo was different than the size of the other photos in the lineup, his face was “slightly elongated.”  COA did overview of relevant case law and held that the array was not unduly suggestive.

Police also told V that the suspects would be shown in the array.  “It is true that the chance of misidentification is ‘heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.’”  But this one fact, by itself, does not warrant the outright exclusion of the evidence.  Witnesses would normally expect suspects to be included in the array since that’s the point of the exercise.


Cuffee, COA, published January 8, 2013.  Reviews identification case law.





Reed, VSC, published March 4, 2011.  Case involving unsigned indictments. D alleged that prosecution was therefore void. “Price, White, and their progeny illustrate the general rule that where the record of a criminal conviction contains a document with a written charge, whether the original or a copy thereof, that has been presented to a grand jury and found by it to be a true bill, the prosecution for the offense described in the document will not be void because of any error in the form of the indictment so long as the record shows that the document was returned in open court by the grand jury in the normal course of its proceedings.”


Haley (unpublished COA, November 6, 2007)- not error to permit Commonwealth to change date of offense on indictment and grant continuance because time was not of the essence of the offense so the amendment did not change the nature of the charge.  § 19.2-231 to be liberally construed to permit amendments.


Dunaway (COA, published July 15, 2008)- D indicted as kingpin dealing between 2.5-5 kg.  Later, Commonwealth amended to dealing greater than 5 kg over defense objection.  Court stated that § 19.2-231 is remedial in nature and is to be liberally construed in order to achieve the laudable purpose of avoiding further unnecessary delay.  Since the amendment did not change the nature of the charge, the amendment was not granted in error.  The overt acts constituting the crime remained the same.  Where there is similarity or purpose and subject matter, an amendment to an indictment that merely changes the Code provision under which a defendant is charged does not change the nature or character of the offense charged and is permissible.


Maldonado-Mejia, VSC, January 10, 2014- D remained “under indictment” until she was acquitted or convicted of the charge in the indictment.


Howard, COA, published August 5, 2014.  D argued that indictments were invalid because they were not read in open court at docket call.  COA held that “presented in open court” does not require that they be read on the docket call date.


Russell v. United States, 369 U.S. 749 (1962). Due process requirements for indictments: These criteria are, first, whether the indictment” contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet,'” and, secondly, “‘in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.




Murphy, VSC, published February 27, 2009)- D charged with PWID marijuana and transporting m/j.  D testified against co-D at PH, after entering into an oral plea agreement where D would plead guilty to the PWID charge, testify against co-D and the Commonwealth would NP the transporting charge.  After D testified at PH, he filed a motion seeking to dismiss both charges on the grounds that his PH testimony triggered transactional immunity under § 18.2-262.  The trial court denied that motion.  D later entered into a plea agreement, preserving his right to appeal the immunity issue.  The COA had ruled that D had implicitly waived his immunity rights by voluntarily testifying with the understanding that the Commonwealth would NP one of his charges.  The COA also held that the immunity provisions applied whether or not the witness was “compelled”.

The Court seized on the word “excused” to find that the immunity provisions in that statute do not apply to witnesses who testify voluntarily.


Inconsistent Verdicts


Greer, 63 Va. App. 561 (2014)- Courts may not render inconsistent verdicts in the guilt phase at bench trials.




Elonis v. U.S., USSC, published June 1, 2015. We have repeatedly held that “mere omission from a criminal enactment of any mention of criminal intent” should not be read “as dispensing with it.”  The “central thought” is that a defendant must be “blameworthy in mind” before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like.  Although there are exceptions, the “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim “ignorance of the law is no excuse” typically holds true. Instead, our cases have explained that a defendant generally must “know the facts that make his conduct fit the definition of the offense,” even if he does not know that those facts give rise to a crime.




Spence v. Commonwealth, 12 Va. App. 1040 (1991)- A common scheme or plan is present only if the relationship among offenses is dependent upon the existence of a plan that ties the offenses together and demonstrates that the objective of each offense was to contribute to the achievement of a goal not obtainable by the commission of any of the individual offenses.


Four separate drug transactions between D and CI in the same area within 13 days were not part of a common plan or scheme.


Holloman, COA, published August 31, 2015. Offenses may be tried together “if (1) the offenses are based on ‘the same act or transaction,’ (2) the offenses are based on ‘two or more acts or transactions that are connected,’ or (3) the offenses ‘constitute parts of a common scheme or plan.’”

“The General Assembly has, in certain circumstances, implicitly modified (the Spence) interpretation of the “connection” requirement under Rule 3A:6(b).”  In this case, the statutory definition of a “criminal street gang” requiring that the gang have committed predicate offenses not part of a common scheme implicitly modified the Rule.  Statutes trump rules when they conflict.




Jaynes (VSC, February 29, 2008)- D convicted of sending bulk spam emails from his home in Raleigh to thousands of AOL addresses. AOL’s servers are in VA.  D argued that VA didn’t have jurisdiction because he didn’t use a computer in VA and there was no “immediate result” in VA.  An intended and necessary result of the act, transmission through the AOL network, occurred in VA.  A state may exercise jurisdiction over criminal acts that are committed outside the state, but are intended to, and do in fact, produce harm within the state.  D’s selection of AOL subscribers insured the use of AOL’s servers and such use was the immediate result of his act.  OVERRULED ON OTHER GROUDS BY VSC ON 9/12/08.


Porter (VSC, June 6, 2008)- Capital murder case.  One issue was jurisdiction.  Opinion includes survey of different jurisdiction issues.  A court order issued without subject matter jurisdiction is null and void, whether or not properly raised by a party.  Orders issued with a lack of territorial jurisdiction are voidable, rather than void, and defects must be properly raised.  All circuit courts have subject matter jurisdiction over all felonies.




Scott, COA, published May 10, 2011 -good overview of striking jurors for cause and juror rehab.


Mayfield, COA, published March 20, 2012- discusses public confidence rule for striking jurors, although that issue wasn’t preserved for appeal.


Jury Fact-Finding


Kennemore (COA, published December 11, 2007)- a jury speaks only through its verdict.  Infer only those facts that, by logical necessity, must have been made for the jury to reach its verdict.  A jury question cannot be extrapolated to establish a fact found by the jury.


Jury Instructions


Brothers (COA, published October 9, 2007)- trial court shall not withhold jury instruction that correctly states the law simply because it does not conform to the model instructions.


Banner v. Commonwealth, 204 Va. 640 (1963)- Both the Commonwealth and the defendant are entitled to appropriate instructions telling the jury the law applicable to each version of the case, provided such instructions are based upon the evidence adduced.


Dalton, 259 Va. 249 (2000)- D entitled to instructions on all lesser included offenses if there is support in the evidence.


King, COA, published April 7, 2015. Summarizes case law regarding instructions for the defense theory of the case.




Witherow, COA, published December 1, 2015. The Supreme Court has “rejected the concept that a jury instruction on the lesser-included offense must always be given.” Vaughn, 263 Va. at 35, 557 S.E.2d at 222 (citing Guss v. Commonwealth, 217 Va. 13, 14, 225 S.E.2d 196, 197 (1976)). Instead, the evidence must “provide the necessary quantum of independent evidence” to support an instruction on the lesser-included offense. Commonwealth v. Leal, 265 Va. 142, 147, 574 S.E.2d 285, 288 (2003). “When the proposed jury instruction touches upon a lesser included offense and there is any credible evidence in the record to support the instruction,” however, “failure to give the instruction is reversible error.” Williams, 64 Va. App. at 247, 767 S.E.2d at 256 (quoting Brandau, 16 Va. App. at 412, 430 S.E.2d at 565). “Conversely, ‘[i]f the evidence is sufficient to support a conviction of the crime charged, and there is no independent evidence warranting a conviction [of the lesser-included offense], an instruction on the lesser-included offense need not be given.’” Id. (quoting Vaughn, 263 Va. at 36, 557 S.E.2d at 222-23). Furthermore, the jury’s “ability to reject evidence does not supply the affirmative evidence necessary to support a jury instruction.” Vaughn, 263 Va. at 36, 557 S.E.2d at 223.

Boone v. Commonwealth, 14 Va. App. 130, 133, 415 S.E.2d 250, 251-52 (1992) (A defendant’s testimony about his intent may, alone, rise above the quantum of “a mere scintilla” and be enough to require a trial court to give a proffered instruction on the lesser-included offense.).


Jury Selection


Farrior (Fourth Circuit, August 5, 2008)- A prima facie case of discrimination does not arise merely because a racial minority has been struck from the venire.


Juvenile Transfers


Harris (COA, published November 4, 2008)- D’s case was not transferred within 120 days, and no written finding of good cause for the delay was filed.  Court held that the statute was procedural- the word “shall” in the 19.2-277.1 is “director” and not “mandatory” or jurisdictional, so it does not create a substantive right.  D did not demonstrate any prejudice from the violation.  Furthermore, the grand jury’s indictment cured the violation.


Lesser Included Offenses


Bowden (COA, published October 7, 2008)- A lesser-included offense is one that is composed entirely of elements that are also elements of the greater offense.  Stated directly, an offense is not a lesser-included offense if it contains an element that the charged offense does not.  Courts analyze the offenses in the abstract, without reference to the facts of the case.




Moreau v. Fuller (VSC, June 6, 2008)- JRD judge took contributing case under advisement.  CA sought writ of mandamus to compel court to enter judgment in the case immediately and cease taking cases under advisement in the future unless there was statutory authority to do so.  Mandamus is an extraordinary remedy that may be used to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.  A ministerial act is one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to his own judgment. Courts have inherent power to render judgment and this power extends to matters incident to the exercise of the judicial power.  It is within the inherent authority of the court to take a matter under advisement or continue it for disposition- nothing requires a court to render judgment immediately.  The VSC explicitly left open the question of whether a judge may decline to render judgment and continue the case with the promise of a particular disposition at a later date.  The order in this case says only that the court found facts sufficient and deferred judgment to a later date- this was within the proper power of the court.  Since determining guilt or innocence is a discretionary function, that act is not subject to mandamus.




Fowlkes (COA, published, July 8, 2008)- juries are presumed to follow a court’s prompt, explicit and curative instructions to disregard the evidence following a the improper admission of evidence.  As an exception to this rule, the admission of incompetent evidence is reversible error notwithstanding the fact that the trial court, after its admission, instructed the jury to disregard it, if such illegal evidence was so impressive that it probably remained on the minds of the jury and influenced their verdict.


Weeks, COA, published November 10, 2009- D convicted of felony conspiracy to commit grand larceny.  During sentencing instructions, jury sent note stating it did not realize charge was a felony and did not believe that evidence showed property was worth $200 or more.  Even in a bifurcated trial, a jury loses power over its guilty verdict only when it is “discharged” from service at the close of trial.  Trial court erred in refusing to grant a mistrial.  Court implied that if D had invited jury to reconsider its verdict, it would not have reversed trial court.


Modifying Sentences


Stokes, COA, published January 15, 2013.  D filed motion to modify while at local jail.  Trial court ordered that he remain at local jail while motion was pending.  D transferred to DOC in violation of order.  Trial court ruled it lacked jurisdiction to modify.  Affirmed under plain reading of the statute.


New Trial for After-Discovered Evidence


Odum, 225 Va. 123  (1983)- the applicant bears the burden to prove that the evidence appears to have been discovered subsequent to the trial; 2) could not have been secured for use at trial, in the exercise of reasonable diligence by the movant; 3) is not merely cumulative, corroborative or collateral and 4) is material, and as such, should produce opposite results on the merits at trial.


Nolle Pross


Wright (COA, published April 22, 2008)- D arrested for felonies.  Commonwealth noll prossed them at PH over D’s objection. No cause was given for the noll pross.  D filed motion to dismiss in circuit arguing same point, which was overruled.  COA reversed that decision, holding that the trial court’s decision is accorded deference on review, but the Commonwealth must provide a reason for the noll pross.


Duggins, COA, published March 20, 2012.  Previous order erroneously permitting NP cannot be attacked collaterally in subsequent prosecution.  Case includes history of NP.




Texas v. Cobb, 532 U.S. 162 (2001)- Constitutional rights are not defined by inferences from opinions which did not address the question at issue.


Preliminary Hearing


Wright (COA, published April 22, 2008)- D arrested for felonies.  Commonwealth noll prossed them at PH over D’s objection. No cause was given for the noll pross.  D filed motion to dismiss in circuit arguing same point, which was overruled.  COA reversed, holding that when a D is arrested on a felony warrant, D has a statutory right to a preliminary hearing unless there’s a valid waiver in writing.  A subsequent indictment doesn’t cure a violation of that right.  Here, D had timely objected in GDC and circuit.


Probation Conditions


Murray, VSC, published September 12, 2014. D convicted of sexual offenses against a child.  In addition to a period of incarceration, the trial court ordered that, upon release, he was subject to search without cause.  The Virginia Supreme Court reversed that portion of the sentence.

“Probation conditions must be reasonable in light of the nature of the offense, the defendant’s background, and the surrounding circumstances.”


Probation Revocation Hearings


Dickens (COA, published July 29, 2008)- probation revocation hearings are not a stage in the criminal prosecution and therefore the defendant does not have as many due process protections as a defendant in a criminal prosecution.  The Sixth Amendment’s Confrontation Clause does not apply to revocation hearings.


Logan (VSC, published September 12, 2008)- it was error for COA to conclude that the exclusionary rule does not apply to probation revocation hearings irrespective of the officer’s bad faith.  The rule in VA continues to be that the exclusionary rule does not apply in revocation hearings absence a showing of bad faith on the part of the police.


Whitehead, VSC, published June 4, 2009- D’s suspended time imposed for technical violations and new convictions.  Court reversed D’s new convictions and reversed revocation for new hearing despite D’s other violations because trial court placed emphasis on new convictions.


Canty, COA, published October 5, 2010.  D appealed probation revocation based on violation that occurred after sentencing but prior to initial revocation hearing.  The evidence related to the violation at issue on appeal was not considered during the initial revocation hearing.  Case cited opinions stating that conduct occurring prior to sentencing could not be considered in a revocation hearing.

Henderson, COA, published June 21, 2011.  Admission of testimony from officer relating information from civilian witnesses about unadjudicated crimes violated right of confrontation.

Reversed by COA, en banc, on February 28, 2012.  The Court noted that hearsay is admissible in revocation hearings for good cause.  Good cause has been determined by other courts based on the reliability test and the balancing test.  The COA declined to rule whether VA required one or both of those tests, or other methods, but applied those tests to the facts of this case and affirmed the trial court’s admission of the hearsay.

VSC Decision, January 10, 2013.  When a trial court denies a defendant the right to confront his accusers, it must articulate good cause for doing so.  VSC went on to determine whether good cause existed in this case.  There are two tests: reliability (the court listed several guarantees) and a balancing test.  The court stated that the tests are not mutually exclusive.  No error in admitting the hearsay testimony.


Jacobs, COA, published March 12, 2013.  Discusses interpretation of prior sentencing orders and resuspension of sentences.


Morrissey v. Brewer, 408 U.S. 471 (1972).  Discusses rights of an accused in a revocation hearing.


Green, COA, published December 1, 2015. While it is without doubt that some minimal procedural safeguards attach in a probation hearing setting, “[t]here is no double jeopardy protection against revocation of probation and the imposition of imprisonment.” Id. at 137. A revocation of a suspended sentence does not involve multiple punishments for the same offense but rather the single punishment already imposed for the offense or offenses convicted of and the degree to which that punishment will be executed at a later time.


Wilson, COA, published November 29, 2016.  Summarizes jurisdictional issues related to timing of revocation proceedings, overturning a revocation for acts that occurred after the termination of the suspension period.


Revocation Hearings- Restitution/Financial Reasons


Porter, COA, published November 17, 2015. Summarizes restitution obligation statutes.


Bearden v. Georgia, 461 U.S. 660 (1983).  State may not revoke probation solely for failure to pay fine or restitution without inquiring whether such failure was willful and into alternative means of punishment.


Duff, 16 Va. App. 293 (1993)- cites Bearden in dicta in footnote 2.  “Where the evidence establishes that the failure resulted solely from an inability to pay and not a willful refusal, it is an abuse of discretion to automatically revoke the prior suspended sentence without considering reasonable alternatives to imprisonment. In such circumstances, however, the court may modify the plan consistent with the defendant’s ability to pay or employ some other means to permit the victim to recover the loss.”



Recidivism Statutes


Papol, COA, March 18, 2014. D charged with one count of possessing child porn and 11 counts of second or subsequent offense.  D argued that he could only be convicted of the subsequent offenses after committing those offenses following a conviction of the first count.  Whether a recidivism statute requires evidence of prior violations or prior convictions is a straight-forward question of statutory interpretation. Virginia courts look solely to the text of the statute for the answer.  This statute mentions violations, rather than convictions. The subsequent convictions were affirmed.





Boone, COA, published July 24, 2012.  D’s time in detention/diversion constitutes time spent in incarceration and should have been credited toward his sentence.


Hills, 262 Va. 807 (2001). Remedy for error at sentencing typically is remand for a new sentence.


Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 (1935). A jury should impose a sentence it believes is just and not concern itself with what may happen after.


Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000).  “A jury should not be required to perform [the] critical and difficult responsibility” of fixing a defendant’s specific term of confinement “without the benefit of all significant and appropriate information that would avoid the necessity that it speculate or act upon misconceptions concerning the effect of its decision.”


Bruton, COA, published April 1, 2014.  No error, when D testified he’d been incarcerated pre-trial, to instruct jury that he’d get a credit for time served. Good summary of jury sentencing case law.


Greer, published July 22, 2014.  D convicted of possession of firearm by convicted violent felon.  Jury stated it could not unanimously agree to five year sentence, but that it could for a two year sentence.  Judge accepted two year sentence and held that he could not increase the jury’s sentence.

COA held that the sentence was erroneous and the trial court’s imposition of it was void ab initio.  The judge was obligated to reject the jury’s verdict and to impanel a new jury to determine punishment within the prescribed limits established by the legislature for the crime for which the jury had found the defendant guilty.  Opinion contains long review of jury nullification and sentencing case law.



Sentencing Evidence


Sigler, COA, published April 4, 2013.  V’s testimony concerning value, and an unintroduced list of stolen items sufficient to support restitution award.  Reviews case law concerning the types of evidence admissible at sentencing.


Blunt, COA, published April 16, 2013.  Officer permitted to testify about D’s drug transaction.  COA held that Henderson does not apply to sentencing hearings.  Moses, 27 Va App. 293, continues to govern the admission of evidence at sentencing.


Speedy Trial (Statutory)


Heath, 261 Va. 389 (2001)- the D’s failure to object to the court’s action fixing the trial date is an acquiescence in the fixing of a trial date beyond the 5 month period and constitutes a continuance under § 19.2-243(4).


Howard, VSC, published March 4, 2011.  D failures to object to the court’s sua sponte continuance tolled the time period.


Wallace, COA, published July 28, 2015.  Although a prosecutor’s family emergency is not one of the enumerated reasons for delay in Code § 19.2-243, the Supreme Court has repeatedly held that “the exceptions stated in the statute are not meant to be all-inclusive, and other exceptions of a similar nature are implied.” Hudson v. Commonwealth, 267 Va. 36, 41, 591 S.E.2d 679, 682 (2004).  Because Code § 19.2-243 is not all-inclusive, judicially recognized exceptions to the time requirement are permissible as long as they are of a similar nature and have the same rationale as the enumerated exceptions.

Case also provides an overview of the constitutional speedy trial factors.


Speedy Trial (Sixth Amendment)


Vermont v. Brillon (USC, published March 9, 2009)- D had six different attorneys appointed during the nearly three years it took to bring him to trial.  D fired his first attorney, the second had a conflict, the third withdrew after D threatened his life, the fourth and fifth withdrew for other reasons and the sixth tried the case.  During the pendency of the case, D was without an attorney for a total of 6 months.

The right to a speedy trial is consistent with delays and dependent upon circumstances.  It does not require trial within a specific period of time, nor does it require a specific demand by the defendant.  Courts should employ a balancing test, weighing conduct of the prosecution and the defense.  Barker provided four factors courts should consider: length of the delay, reason for the delay, D’s assertion of his right and prejudice to D.  When considering the length of the delay, courts consider who is to blame, and delays designed to hamper the defense weigh heavily against the prosecution.  More neutral reasons, such as overcrowded courts, weigh less heavily, although the government ultimately bears the responsibility.

A defense attorney is his client’s agent, so any delays caused by defense counsel are attributable to the defendant.  This is the case even if the attorney is a public defender or appointed counsel- these attorneys are not normally considered state actors.  This is not an absolute rule, however, delays caused by a breakdown in the state defender system can be attributable to the state.  There was no finding on that point in this case, however.

The Vermont Supreme Court erred in failing to consider D’s behavior during the first year after his arrest, and how that contributed to the subsequent delays in coming to trial.  The Court remanded the case.


Statute of Limitations


Taylor, COA, published January 27, 2015. One cannot be convicted of a lesser included misdemeanor if the felony prosecution commences after the statute has run on the misdemeanor.


Statutory Exceptions


Tart (COA, published July 15, 2008)- case construing the exception language for pandering: “except for a consideration deemed good and valuable in law”.  A qualification, exception, or exemption in a statute may be construed as an element of the offense that the prosecution must disprove.  On the other hand, an exception may also be construed as a statutory defense, which the accused can assert to defeat the prima facie case of the prosecution.  Where a statute defines completely the offense . . . and its required elements of proof negation of circumstances invoking [an exception] is not one of those elements. Instead, the accused bears the burden of producing evidence placing him within the exception.


Statutory Interpretation


King v. Commonwealth, 2 Va. App. 708, 710, 347 S.E.2d 530, 531 (1986).  “The validity of using other Code sections as interpretive guides is well established. The Code of Virginia constitutes a single body of law, and other sections can be looked to where the same phraseology is employed.”


Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 359 (1944).  The duty of this court is not to make law, but to construe it; not to wrest its letter from its plain meaning in order to conform to what is conceived to be its spirit, in order to subserve and promote some principle of justice and equality which it is claimed the letter of the law has violated. It is our duty to take the words which the legislature has seen fit to employ and give to them their usual and ordinary signification, and having thus ascertained the legislative intent, to give effect to it, unless it transcends the legislative power as limited by the Constitution.


Fitzgerald, COA, December 11, 2012- when statutes are amended, courts presume that the GA intended to change the law.


Sarafin, COA, published October 8, 2013.  In addition, “‘when one statute speaks to a subject in a general way and another deals with a part of the same subject in a more specific manner, the two should be harmonized, if possible, and where they conflict, the latter prevails.’” Daniels v. Warden of the Red Onion State Prison, 266 Va. 399, 402-03, 588 S.E.2d 382, 384 (2003) (quoting Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618 (1992)). Yet, “when the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.” Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337, 714 S.E.2d 922, 925 (2011).


Althizer, COA, published May 6, 2014- petition for writ of actual innocence changed from “could” to “would.”  When GA changes a word in a statute, court presumes it intended to have some effect. COA said the word was ambiguous and concluded that the GA didn’t intent a “sea change” in the way such petitions were evaluated.


And, when multiple “statutes concern[] the same subject,” we construe them together “to avoid conflict between them and to permit each of them to have full operation according to their legislative purpose.”


Wesley v. Commonwealth, 190 Va. 268, 276, 56 S.E.2d 362, 365 (1949). Penal statutes must be strictly construed according to the rule of lenity, and when a statute permits two conflicting and reasonable interpretations, courts must construe the language in the way that favors the accused.


Yates v. United States.  “The plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.”

“The title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.” “[T]he canon against surplusage is strongest when an interpretation would render superfluous another part of the same statutory scheme.”

“We rely on the principle of noscitur a sociis—a word is known by the company it keeps—to “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving unintended breadth to the Acts of Congress.”

“Where general words follow specific words in a statutory enumeration, the general words are [usually] construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”


Statutory Language


Johnson, COA, published March 31, 2009- two things are “substantially similar” if they have common core characteristics or are largely alike in substance or essentials.


Paiz, COA, published August 25, 2009.


Mason v. Commonwealth, 217 Va. 321, 323, 228 S.E.2d 683, 684 (1976).  “[T]he summary title is not part, and does not determine the meaning, of the body of a statute.”


Stare Decisis


Congdon v. Congdon, 40 Va. App. 255 (2003)- stare decisis does not apply merely to the literal holding of the case, but also to the essential rationale for the decision.


Sufficiency of the Evidence


White, 3 Va. App. 231 (1986)- When a defendant makes a motion to strike at the conclusion of the Commonwealth’s evidence, and then presents his own evidence, he must make a motion to strike the evidence at the conclusion of his evidence to preserve the sufficiency question on appeal.




Gheorghiu (COA, published January 20, 2009)- D arrested for credit card theft, identity theft, etc  in Arlington.  D from NY and traveled down to VA, where he was arrested with stolen credit card numbers.  One victim was from NY, and hadn’t been to Arlington.  No evidence suggested that D accessed the number in Arlington.

Venue depends on the nature of the crime.  In most cases, venue will be where all the elements of the crime were committed.  If relying on the general venue statute, the Commonwealth must establish a “strong presumption” that all elements took place within the selected jurisdiction.  Here, the Comm relied on the identify theft venue provision, requiring it to prove that one of the elements was committed in Arlington.

The Court distinguished this case from Meeks, which dealt with credit card theft.  Identity theft is not credit card theft. Despite its name, the completion of the crime of identity theft is not limited to a discrete moment in time marked by the unlawful taking or receiving of an individual’s identifying information. Rather, identity theft can be committed by recording or accessing an individual’s identifying information, actions that continue after the initial obtaining of the information, or by obtaining goods through the use of the illegally obtained identifying information. Indeed, the very nature of identity theft is that, once an individual’s identifying information is stolen, the individual’s identity remains stolen by the perpetrator as long as the perpetrator possesses that information with the intent to defraud the victim for his own benefit or for the benefit of another unauthorized individual.  See also, COA opinion of August 25, 2009 (rehearing).


Taylor, COA, published April 26, 2011- discusses venue in the lesser-included offense context.


Bonner, COA, published December 11, 2012.  Good discussion of continuing v. discrete offenses.


Williams, COA, published June 10, 2014.  UC officer asked D to assist him in purchasing crack.  Conversation happened on a street officer testified was in Norfolk.  D said they needed to go to another street, which the officer stated was “over there” but did not testify it was in Norfolk.  Commonwealth said court could take judicial notice of venue.

Commonwealth does not have to prove venue beyond a reasonable doubt. It is sufficient if the evidence raises a strong presumption that the crime occurred within the territorial jurisdiction of the court.  Court cited cases showing deference to trial courts’ use of judicial notice regarding venue and distinguished the Harris case out of Henrico by noting that the COA in that case noted that the trial court did not take judicial notice.

REVERSED AND REMANDED BY VSC ON APRIL 14, 2015.  Discusses judicial notice for venue.


Kelso, 57 Va. App. 30, 36 n.4 (2010). The issue of venue is properly raised by a motion to dismiss the indictment, rather than a motion to strike.

Waiving Objections


Kilby (COA, published July 29, 2008)- D objected when Commonwealth elicited V’s out of court statements during Commonwealth’s case in chief.  D then called the same witness to elicit evidence of a prior inconsistent statement.  The general rule is that when a party objects to some evidence and then presents the same evidence, then that party waives the objection.  Before this rule is applied, however, there must be some reasonable and just foundation for holding that there is in fact a waiver.  Here, because the purpose of D’s introduction of the evidence was not to prove the truth of the out of court statement, there was no reason to hold that this constituted a waiver.




Maxwell, VSC, published February 2014- D’s counsel left courtroom while jury deliberating.  Court responded to questions outside of counsel’s presence.  8.01-384(A) (contemporaneous objections) prevents D’s absence from prejudicing him due to his absence during the act he later objected to.

In a companion case, defense counsel objected to the prosecutor’s comment on defendant’s failure to introduce evidence and moved for mistrial.  Court said he’d take the motion up when the jury left to deliberate and the attorney said “very well.”  This constituted failure to make a contemporaneous objection.


Withdraw Guilty Plea


Hubbard, COA, published May 15, 2012.  Discusses liberal standard for permitting pre-sentence motions to withdraw guilty pleas.


Branch, COA- D attempted to withdraw plea prior to sentencing.  COA held that trial court did not err in precluding withdrawal because evidence demonstrated that D was not acting in good faith.


Booker, COA, published December 11, 2012.  Good overview of policy considerations.


Pritchett, COA, published April 16, 2013.  The decision whether to allow a pre-sentencing plea the decision rests on the fact that defendant entered the plea inadvisedly due to (1) a misconception concerning the nature of the charge and (2) the existence of a reasonable defense.

The analysis appears different after a plea agreement: if a defendant repudiates a guilty plea, the courts presume that defendant is refuting the answers provided during the plea colloquy.  In this case, however, the agreement was under 3:8(c)(1)(B), and the defendant acknowledged that he had no right to withdraw a plea if the court rejected the Commonwealth’s recommendation.


Ramsey, COA, published December 8, 2015. A reasonable defense sufficient to withdraw a guilty plea is “one based upon a proposition of law or one supported by credible testimony, supported by affidavit.” Williams, 59 Va. App. at 249.  As we have held, a defense “based solely upon a challenge to the credibility of a victim’s testimony” is not a reasonable defense that would warrant withdrawal of a guilty plea. Williams, 59 Va. App. at 249.


Hernandez, COA, published December 6, 2016. D asked for insanity evaluation, and first doctor conducted two evaluations, finding D insane in one evaluation and sane in the second.  Based on inconsistency, court ordered a third evaluation by another doctor, who found D sane.  At hearing on motion to withdraw his guilty plea, D’s attorney admitted that she’d mistakenly advised D that he had no viable insanity defense because of the third evaluation.  Court had both doctors testify and concluded that the second doctor was more credible.

In a motion to withdraw a guilty plea, it is not the trial court’s role to evaluate credibility of witnesses, nor to determine whether the proffered defense will be successful. The role of the trial court is to determine whether the defendant has made a prima facie showing of a reasonable defense. If the trial court finds as a matter of law, that the defendant has no reasonable defense, it may then deny the motion.  Court erred in deciding between credibility of each doctor, as it was plausible the factfinder at trial would have concluded the first doctor’s testimony was more credible.


Withdraw Guilty Plea- Prejudice to Commonwealth


Ramsey, COA, published December 8, 2015. n.3. In this case, while the Commonwealth did argue that it would be prejudiced if appellant were permitted to withdraw his guilty plea, the Commonwealth did not argue that appellant’s decision to enter a written plea agreement precluded him from moving to withdraw his guilty plea. This Court has noted that “a defendant’s knowing and voluntary pretrial decisions may result in prejudice to the Commonwealth or if it will otherwise cause undue delay in the administration of justice.” Hubbard, 60 Va. App. at 211 n.4, 725 S.E.2d at 168 n.4

Richard Collins is an attorney at Collins & Hyman, PLC, with offices in Williamsburg and Newport News.