High court refines test for successive prosecution law

After accepting two criminal appeals in order to clarify the test for applying a statutory bar to successive prosecution, the Supreme Court of Virginia split on both the proper test and the way the majority applied its test.

The result is that two defendants convicted of illicit firearm possession had their convictions affirmed, even though they were previously convicted of carrying concealed weapons in the same incidents.

The majority ruled it took separate acts by the two appellants to both possess and conceal the guns in question, so the statute – Va. Code § 19.2-294 – did not bar the second prosecutions.

The Supreme Court’s 4-3 opinion, issued Dec. 10, is Evans v. Commonwealth (VLW 020-6-073).

Concealed carry pleas

Justice Stephen R. McCullough wrote the majority opinion. The parties all agreed on the facts, the court said.

Raequan Evans had a semi-automatic pistol in his pants. He pleaded guilty to carrying a concealed weapon. Later, the Norfolk prosecutor secured an indictment for possession of a firearm by a convicted felon. Evans pleaded guilty, reserving to right to appeal the successive prosecution issue.

Mariah Conway was accused of having a revolver. She pleaded guilty to carrying a concealed weapon. Danville authorities then indicted her for possession of a firearm as a convicted felon. A jury convicted her.

The Court of Appeals denied both appeals. The Supreme Court awarded an appeal and paired the two cases.

Divergent case law

On appeal, the defendants argued that, under the plain language of § 19.2-294, their felon in possession convictions must be dismissed.

“They acknowledge hostile precedent but contend those cases were wrongly decided,” McCullough wrote.

The majority undertook analysis of the origin and interpretation of the law. The statute is not concerned with the elements of an offense, but bars a subsequent prosecution based on the “same act,” the court said.

Two divergent strands emerged, McCullough said. Some decisions hewed closely to the plain language of the statute by examining whether successive prosecutions stemmed from the “same act.” A parallel line of cases developed in which Virginia’s appellate courts “conflated the protections of the double jeopardy bar with those of the statutory ‘same act’ bar,” the court said.

A test based on whether the “same evidence” is required cannot be reconciled with the plain language of the statute and can – in practice – defeat the statute’s protection, the majority explained.

The court announced it was overruling Jefferson v. Commonwealth, 43 Va. App. 361 (2004) and Johnson v. Commonwealth, 38 Va. App. 137 (2002) and rejecting tests articulated in Hundley v. Commonwealth, 193 Va. 449 (1952) and other cases that strayed from the “same act’ analysis.

The proper test, the majority said, is a “common sense assessment” of whether the act in question is a “separate volitional act,” the two acts are separated in time and place, and the subject act differs in its nature.

Possession convictions affirmed

Applying this test to the two gun-carrying defendants, the court distinguished between possession and concealment.

“The possession and concealment may (or may not) have been close temporally, but there can be no dispute that the defendants had to possess the firearms at issue, and that it took separate acts to conceal them,” McCullough wrote. “In short, the additional act of concealing the weapon makes it a different act from merely possessing it.”

The court affirmed both convictions.

McCullough was joined by Chief Justice Donald W. Lemons and Justices William C. Mims and D. Arthur Kelsey. Justice Teresa M. Chafin, a former judge of the Court of Appeals, did not take part in the decision.

Dissent

Writing in dissent, Senior Justice LeRoy F. Millette Jr. was joined by Justices S. Bernard Goodwyn and Cleo E. Powell.

The dissenters agreed with the effort to provide clarity by overruling Jefferson and Johnson and negating the test of Hundley. But they disagreed with the majority’s test and its application to the facts.

“In my view, the majority’s stated identification of the act erroneously continues to focus on the evidence in support of a conviction for the offense rather than the actual evidence presented regarding he specific act of the defendant, upon which the offense are based,” Millette wrote.

“I also fail to see how ascertaining whether ‘the act differs in its nature’ advances the objective of ascertaining whether an accused has been prosecuted for the same act as contemplated by Code § 19.2-294.”

Concealment and possession required proof of only the singular act of possession while the weapon is concealed, the dissenters said.

“The majority’s analysis continues to focus on the elements of the offense at issue rather than the evidence regarding the act upon which the offenses are based,” Millette wrote. Rather than clarifying the law, the majority “has come full circle,” returning to analysis of the elements of the offense, the dissent said.

Commonwealth’s attorneys in Norfolk and Danville were not available for comment. Evans was represented by J. Barry McCracken of the Norfolk PD’s office. Conway was represented by Michael Nicholas of Danville. The Evans appeal was defended by Assistant Attorney General Anne Lloyd. The Conway appeal was defended by Senior Assistant Attorney General Matthew P. Dullaghan.

The Virginia Association of Commonwealth’s Attorneys declined comment.

“The dissent is correct,” said Seth C. Weston of Roanoke, a former president of the Virginia Association of Criminal Defense Lawyers. “The majority decision sets forth a standard stating not to consider the elements of the crimes, then immediately considers the elements,” he said.

“It is much clearer and simpler to have held, as the dissent did, the act of possession was proven in the first case therefore the second case should have been dismissed,” Weston said.

Weston approved use of his comments posted on a VACDL listserv, according to VACDL president Elliott Bender.