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Misdemeanor charges OK despite lack of prosecutor

Virginia Lawyers Weekly//September 27, 2021

Misdemeanor charges OK despite lack of prosecutor

Virginia Lawyers Weekly//September 27, 2021//

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A Newport News judge has denied a criminal defendant’s motion to dismiss made after the commonwealth’s attorney declined to prosecute a misdemeanor concealed weapon charge.

Judge Gary A. Mills agreed with a Fairfax County Circuit Court holding earlier this year that said a prosecutor has the discretion to not prosecute misdemeanors.

But that was as far as he went, finding that “law enforcement may facilitate the orderly presentation of witnesses without assuming the separate role of the Commonwealth’s Attorney.”

The decision is Commonwealth v. Wilkerson (VLW 021-8-112).


Norman V. Wilkerson was charged in June 2020 with carrying a concealed weapon, a Class 1 misdemeanor. When the matter came before the Newport News General District Court almost a year later, the commonwealth chose not to prosecute the matter.

Wilkerson entered a not guilty plea, but was ultimately found guilty after a police officer gave testimony.

Wilkerson appealed and the matter was characterized as a “Non-Commonwealth Case.” He filed a motion to dismiss.

In his brief, Wilkerson cited the March 2021 holding in Commonwealth v. Sangha, where Fairfax County Circuit Judge Richard E. Gardiner said that the absence of a prosecutor means there can be no court proceeding, at least in circuit court.

Prosecutorial discretion

Virginia Code § 15.2-1627(8) says a commonwealth’s attorney must prosecute felonies, but deciding how to handle misdemeanors is left up to prosecutors. It was well within the prosecutor’s discretion to not prosecute since Wilkerson’s alleged carrying of a concealed weapon was a misdemeanor.

While the commonwealth’s attorney and law enforcement have “separate and distinct authorities of power,” the police may assist with presenting witnesses without assuming the role of prosecutor.

Departure from ‘Sangha’

Mills’s decision departed from the Sangha ruling.

“First, the Court disagrees with the conclusion that only the Commonwealth’s Attorney may prosecute criminal matters,” Mills wrote. “Other entities maintain the same power.”

He pointed to common law appointments of “private prosecutors” where crime victims or their families hire private attorneys to help in a criminal prosecution. City attorneys also can fill the shoes of a commonwealth’s attorney to prosecute certain criminal matters.

Mills then said Virginia Code§ 19.2-265.5, which references when a commonwealth’s attorney is not present, is unambiguous, particularly the emphasis on “present.”

A “clear and plain meaning of ‘present’ does not indicate a ‘temporary physical absence,’ as the court in Sangha would indicate,” he explained, adding that the code “does not include language of ‘temporariness,’ where similar statutes include such meaningful language.”

The code’s caption — “Prosecuting Misdemeanor Cases Without Attorney” — also highlighted the intent of the legislature. While not actually part of the code, “such clear language is strongly indicative of the General Assembly’s intent to allow the adjudication of Non-Commonwealth cases.”

Excluding law enforcements’ assistance with witnesses and requiring the commonwealth’s attorney to be present for every single misdemeanor would be an “absurd reading” of the statute, the judge concluded.

“If [the code] were read as Defendant urges, the long standing and practical tradition of Non-Commonwealth cases moving forward would abruptly end, creating disastrous public policy considerations,” Mills wrote.

Exercising executive power

Mills said, in the absence of the commonwealth’s attorney, the court may exercise a limited degree of executive power to resolve this matter.

This is in conflict with the Sangha court’s holding that “a circuit court cannot wield executive power at all, or if it can legally, such power sharing would not allow the Court to adjudicate a case without a Commonwealth’s Attorney present.”

Mills concluded that, contrary to Sangha, the court can call and question witnesses in a criminal matter, which he characterized as a long-held practice.

“Limited power sharing is achieved and remains permitted under the separation of powers doctrine where the Court would merely call and question witnesses, limited to the complaining officer and in limited circumstances additional witnesses merely summoned by the officer,” the judge said.

No per se ‘Brady’ violation

The absence of the commonwealth’s attorney in a prosecution is not a due process or per se Brady violation, Mills said. Under the rules of the Virginia Supreme Court, the prosecutor is required to disclose any exculpatory or impeachment evidence.

If a defendant has sufficient time to use that information, it doesn’t run afoul of Brady.

“Acknowledging that the defendant may encounter pre-trial hurdles in obtaining exculpatory or impeachment evidence, this Court, or the Defendant, may make such request for exculpatory information at the onset of the misdemeanor trial,” Mills said.

Again, law enforcement aids in its limited capacity as an agent of the commonwealth when it facilitates the orderly presentation of witnesses and is compelled to comply with requests from the court for such information.

In fact, “law enforcement agencies certainly understand the repercussions of not disclosing exculpatory evidence,” Mills pointed out. “While not receiving the same rigorous legal study as a Commonwealth’s Attorney, law enforcement is educated on Brady and its progeny during their training.”

As such, the court “may intervene to facilitate a fair trial by calling and questioning witnesses accordingly, where law enforcement already maintains incentive to disclose exculpatory information.”

If you would like to comment on this story, contact Kelly Caplan at [email protected].

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