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New obstacles for prosecutors?

A recent Virginia Supreme Court opinion reversing convictions of receiving stolen property for a Danville woman may have raised the bar for prosecutors on appeal.

That’s the conclusion of Ken Lammers, a deputy commonwealth’s attorney in Wise County.  On his CrimLaw blog, Lammers notes two rulings in Whitehead v. Commonwealth that the commonwealth could not advance new arguments for conviction that were not raised in the trial court.

The case involved a woman who lived an apartment filled with stuff stolen by her boyfriend.  She admitted the goods were stolen, and acknowledged the thefts helped pay the rent, but there was no evidence she ever did anything with the stolen goods.

The issue was whether she ever “received” or “concealed” the stolen property.   The trial court and the Court of Appeals concluded that allowing all the booty to be lodged in her dwelling was enough to convict.

The Supreme Court last week unanimously disagreed in an opinion authored by Justice Donald W. Lemons.  Moreover, as noted by Lammers, the court declined to consider alternative theories of “constructive possession” and “constructive receipt” advanced by the commonwealth for the first time on appeal.  The court reversed 32 counts of receiving stolen property.

Lammers contends it has “long been accepted in Virginia” that, on appeal of a conviction, the prosecution was free to “scour the record and argue any issue which would support its position.”

Lammers says the Whitehead decision will make the job of lawyers at the attorney general’s office much harder.  He suggests prosecutors may have to learn to preserve additional points for their arguments, even when they’ve already won the issue with the trial judge.

Comments are encouraged.

By Peter Vieth

2 comments

  1. defense attorney

    Seems fair to me. Perhaps it is nice to see the onus is being placed on the CWA who has the burden in lower court to prove their case beyond a reasonable doubt. I am always sure as a defense attorney to secure every defense at the motion to strike, renewal and closing. The CWA should have to do the same at trial. The CWA always just has to say tell me what happened to the witnesses, and they have the burden… It would be great if they are held to the same standard of being forced to prepare for trial in advance, and preserve issues. My condolences to the deputy for making it hard to convict people in an easier manner…

  2. defense attorney

    Seems fair to me. Perhaps it is nice to see the onus is being placed on the CWA who has the burden in lower court to prove their case beyond a reasonable doubt. I am always sure as a defense attorney to secure every defense at the motion to strike, renewal and closing. The CWA should have to do the same at trial. The CWA always just has to say tell me what happened to the witnesses, and they have the burden… It would be great if they are held to the same standard of being forced to prepare for trial in advance, and preserve issues. My condolences to the deputy for making it hard to convict people in an easier manner…

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