October’s Case Are Up at Virginia Criminal Cases & Law

December 17, 2010 by Ken Lammers  
Filed under Criminal Court

click on graphic to go to Virginia Criminal Law & Cases

Did the Police Officer Act Incorrectly?

December 14, 2010 by Ken Lammers  
Filed under Criminal Court

Over the last week or so there has been much written on the blawgs about the arrest of Joel Rosenberg. I'm not going to write about the propriety of Mr. Rosenberg's behavior after the incident or the officer's decision to charge him. However, there is a video which raises the question, "Did the officer act inappropriately?"

Just watch until the firearm is given back and taken out of the building

I've looked into the statute which Mr. Rosenberg quotes and, as best I can tell, it looks as though he is right in stating that the judge could not ban firearms from the public building. Minnesota Code 642.714 subd. 17 allows firearms to be banned from "private establishments", but they are obviously not in a private establishment. And then there's subd. 23 of the same code section:
This section sets forth the complete and exclusive criteria and procedures for the issuance of permits to carry and establishes their nature and scope. No sheriff, police chief, governmental unit, government official, government employee, or other person or body acting under color of law or governmental authority may change, modify, or supplement these criteria or procedures, or limit the exercise of a permit to carry.
A judge is clearly a person acting under color of law or governmental authority. This appears to absolutely bar a judge from banning firearms from any place at any time.

Of course, that's insane. And before anyone starts telling me that's just the prosecutor in me speaking, I'm pretty sure anyone who has been in a courthouse when emotions are running high, on both the victim's side of the aisle and the defendant's, has been glad that no weapons were allowed. Just imagine a trial in which the victim was a 3d Street Samurai Crip and the defendant is a 7th Street Banzai Latin King. Do you think the judge should be absolutely banned from keeping members of the two sets from bringing firearms to the courthouse?

Nevertheless, I couldn't find an exception to the law. That doesn't mean there isn't one somewhere, just that I couldn't find it in the statute or the case law addressing the statute. So, as far as I can tell the judge was wrong to banish firearms from the building.

On the other hand, consider the officer's situation. He has an order from a judge banning firearms. The judge is higher on the food chain than the officer. The officer is going to obey the command of the judge. So, it's no surprise that he acted to enforce the judge's order.

What's the solution here? In Virginia the technically correct solution is go over the judge's head and get an order of mandamus requiring the judge to withdraw his order or an order of prohibition to keep the judge from enforcing the order. However, this is time consuming and not practical for someone who is not going into the building often. In this case you could run up and punch the bear in the nose, trusting that he won't figure out how to get free of the chains and maul you.

The Santa Case

December 13, 2010 by Ken Lammers  
Filed under Criminal Court

Name That Pic – 09 December 2010

December 9, 2010 by Ken Lammers  
Filed under Criminal Court

Drug Illegalization is a Moral/Philosophical Issue

December 9, 2010 by Ken Lammers  
Filed under Criminal Court

When a scientist starts to use his position on a board which decides whether drugs should be legal as a soap box to push for legalization or not making drugs illegal Britain bans all scientists from the board.

Watch Out For Wikileaks

December 9, 2010 by Ken Lammers  
Filed under Criminal Court

Apparently, schools are warning students not to access Wikileaks.

Can you be convicted of credit card theft and larceny of the wallet it was in?

December 6, 2010 by Ken Lammers  
Filed under Criminal Court

So, I left you last time after telling how a judge struck a credit card theft charge I was prosecuting after pointing to a case which said a defendant couldn't be prosecuted for the theft of the wallet and the cards within the wallet or it would violate double jeopardy. I also told you how, after I got home and it was too late, I eventually came up with the correct answer which should have kept the judge from striking the charge. So, let me lay it out.


Under the common law credit cards were "choses in action" and thus had no value except for the value of the plastic of which they were made. However, the Virginia General Assembly passed a law making the theft of any credit card a felony. Subsequently, the Virginia Court of Appeals specifically excepted credit card theft from the constraints of the single larceny doctrine. This meant that if a defendant stole twenty credit cards from the same person, at the same time, the defendant could be charged with 20 felony credit card thefts. As the single larceny doctrine is inapplicable to credit card theft, the only constraints on charging credit card theft are the double jeopardy prohibitions in the Virginia and federal constitutions.

Since 1932 the test for double jeopardy has come from Blockburger v. United States. The simplest way to describe this test is as a "different elements test." Basically, if a defendant is charged with two types of crimes each type of crime must have an element that the other does not have. An example of this can be found in Hudgins v. Commonwealth, in which the Virginia Supreme Court ruled that robbery and larceny from a person can both be charged because, while they both have many of the same elements, robbery requires the use of force and larceny from a person requires the taking of something worth more than $5. The different elements test has been, and is, the prevailing double jeopardy standard.

However, for a short time in the early 1990's (1990-93) the US Supreme Court tried out a different standard. In a case called Grady v. Corbin the USSC adopted a "same conduct test." Under this test if the same act violated two laws the defendant could only be charged with one crime. However, after only three years, in Dixon v. United States the USSC reversed itself and abolished the same conduct test and returned to the different elements test.

Unfortunately, the case which I couldn't rebut in the courtroom, Darnell v. Commonwealth, 12 Va.App. 948 (1991)(not available on open web), was decided during the time that Grady was good law. In Darnell a wallet was stolen and the defendant was charged with petit larceny for the wallet and credit card theft for a credit cards in the wallet. Darnell objected to this as violative of double jeopardy. The Virginia Court of Appeals first runs through the Blockburger different elements test and concludes that the two prosecutions do not violate the different elements test. Larceny of the wallet has an "intent to permanently deprive" element and credit card theft has an "intent to use, sell or transfer" element. With the different intent elements, charging the two crimes at the same time passes the Blocburger test.

Then the appellate court turns to the Grady same conduct test. It finds that Darnell had to steal the wallet in order to get the credit cards in it. Since stealing the credit cards involved stealing the wallet the thefts involve the same conduct. Thus, they fail the same conduct test under Grady. Therefore, as long as Grady was good law it was forbidden to charge credit card theft and theft of the wallet or purse they were in.

Of course, Grady isn't good law anymore. It was only good law from 1990 until 1993. In 1993, the USSC abandoned the same conduct test and reversed Grady in Dixon v. United States. The Virginia Supreme Court specifically followed the USSC in this in Hudgins v. Commonwealth in 2005. Maybe there was a similar decision within the 12 year gap, but I couldn't find it and apparently neither could the Virginia Court of Appeals which the Virginia Supreme Court overruled.

It's not like the Virginia Court of Appeals hid the fact that the Darnell case was based upon Grady. The first paragraph ends with this sentence
We find that the prosecutions under Code ยง 18.2-192 are barred by Grady and, therefore, we reverse the convictions.
I just didn't know that that Grady had been overruled. Heck, I didn't even know that Grady existed.

Next time I'll know to stand up and say, "Darnell was based on Grady which was overruled by Dixon and Hudgins. Even Darnell recognized that charging credit card theft and larceny of the wallet isn't barred under the Blockburger test. And, per Scott, the single larceny doctrine does not apply to credit card theft charges."

Of course, I've never been quite so glib and after a uttering a string of cases like that I'll have to spend the next 45 minutes explaining myself. Still, at least I won't be sitting there staring uselessly at a computer screen like I was last week.

The Judge, Motion to Strike, and Credit Card Theft

December 5, 2010 by Ken Lammers  
Filed under Criminal Court

We're at the end of evidence in a jury trial where the defendant has been charged with Grand Larceny and Credit Card Theft. The defense attorney has made the motion to strike the evidence as legally insufficient to sustain the charges. We argue and I sit down thinking that I've fought off the motion. I should know better. It's always those moments when you get a little cocksure that fate, or the judge, reaches out and slaps you around a bit.

The judge asks me if the charge of credit card theft is valid if the basis of the grand larceny is the stealing of the wallet and the credit cards are in the wallet. It's a classic question which is based on double jeopardy and the single larceny doctrine (if a defendant steals from one person at a singular period of time he can only be charged with one larceny instead of one larceny for each item taken). Again, I stand up (over)confident that I've got this answer down pat. "Judge, case law states that the single larceny doctrine doesn't apply to credit card theft."

Judge: "In some cases, but I don't think that's correct when we're talking about credit cards in a wallet or purse, the theft of which has been charged as grand larceny." Suddenly my endorphins spike. The judge wouldn't have made that statement without something to back it up. I ask for a couple minutes to look it up. "Yes, Mr. Lammers, and I suggest you start by looking at Darnell at 12 Va.App. 948."

I start plunking away at my computer. I've never heard of Darnell. I find it pretty quickly and it says that if the cards are in the wallet charging a larceny for the wallet forecloses a credit card theft charge for cards int he wallet. That just rings absolutely wrong. In the ten years I've been practicing law, I've seen hundreds of people charged with credit card theft when they stole wallets or purses with credit cards in them. I look for subsequent cases which rely on or elaborate upon Darnell, but it's an orphan. There's no serious treatment of it or citation to it. In fact, I can only find two citations. The first just cites to Darnell for an element of credit card theft (in an unpublished opinion). The second cites to Darnell as establishing that petit larceny is not a lesser included offense of credit card theft. I don't know how long I plunked along on the computer, but eventually the judge cut me off and, because I hadn't found anything contrary to Darnell, struck the credit card charge.

I don't think it made a difference in the final outcome of the case, but it was a quick lesson in not getting too cocky. Of course, once I got home and put a little research into it I found the correct answer, but by then it was a little too late.

What's the correct answer? You'll have to come back on Monday and read the next post to get that answer.

Name That Pic – 02 December 2010

December 2, 2010 by Ken Lammers  
Filed under Criminal Court

Best Quote of the Week

November 30, 2010 by Ken Lammers  
Filed under Criminal Court

Note left for me by a defense attorney:

"I ain't ready to go to trial tomorrow unless you aren't ready to go to trial."

Next Page »

SEO Powered by Platinum SEO from Techblissonline