Concealed weapon case proceeds in prosecutor’s absence

Where the commonwealth’s attorney declined to prosecute a misdemeanor concealed weapon charge, defendant’s motion to dismiss, based on the prosecutor’s absence, is denied.

The court agrees with a recent circuit court opinion, Commonwealth v. Sangha, 2021 WL 1179859 (Fairfax Cnty. Mar. 29, 2021), which concluded that the prosecutor has the discretion not to prosecute misdemeanors.

However, in the prosecutor’s absence, “law enforcement may facilitate the orderly presentation of witnesses without assuming the separate role of the Commonwealth’s Attorney.”

Background

Defendant was charged with carrying a concealed weapon, a Class 1 misdemeanor. The commonwealth decided not to prosecute. Defendant pleaded not guilty. After a police officer testified, the district court found defendant guilty. She has filed a motion and brief in support to dismiss the case. The commonwealth has responded.

Others may prosecute

“The Court agrees with the finding of Sangha that the Commonwealth may elect not to prosecute Class 1 misdemeanors, as in the case at bar. Virginia Code § 15.2-1627(8) dictates that while a Commonwealth’s Attorney must prosecute felonies, prosecutorial discretion remains as to handling misdemeanors[.] …

“Defendant’s alleged act of carrying a concealed weapon in violation of Virginia Code§ 18.2-308, a Class 1 misdemeanor, remains well within the Commonwealth’s Attorney’s discretion not to prosecute. …

Where this Court will depart the rationale of Sangha is (1) the finding that only the Commonwealth’s Attorney may prosecute matters and (2) a reading of Code § 19.2-265.5. …

“[T]his Court disagrees with the conclusion that only the Commonwealth’s Attorney may prosecute criminal matters. Other entities maintain the same power.

“For example, Virginia adheres to the common law appointment of private prosecutors, upon which a crime victim or the victim’s family may retain a private attorney to assist in a criminal prosecution. … Additionally, City Attorneys step into the role of a Commonwealth’s Attorney and ‘may prosecute criminal cases charging either the violation of city … ordinances, or the commission of misdemeanors within the city[.]’ …

“The General Assembly has therefore contemplated prosecutorial abilities that lie outside the purview of the Commonwealth’s Attorney.”

Law enforcement may help

“[T]his Court disagrees with … Sangha regarding of Virginia Code§ 19.2-265.5. . In pertinent part: ‘Notwithstanding any of the provisions of§ 19.2-265.1 [pertaining to the exclusion of witnesses and exemptions], whenever in a misdemeanor case neither an attorney for the Commonwealth nor any other attorney for the prosecution is present, the complaining witness may be allowed to remain in court throughout the entire trial if necessary for the orderly presentation of witnesses for the prosecution.’ …

“The plain reading of Code § 19.2-265.5 gives authority to law enforcement to help with the orderly presentation of witnesses where no Commonwealth’s Attorney acts in the prosecution of a criminal matter.”

Executive power

“This Court holds that it may exercise a limited degree of executive power m the adjudication of this matter in the absence of the Commonwealth’s Attorney. …

“The court in Sangha argues 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. … This Court disagrees.

“In great part, the ‘essential function of the judiciary’ is ‘the act of rendering judgment in matters properly before it.’ … This Court must accordingly ‘evaluate such challenges in the contextual framework of the “whole power” of a governmental department.’ …

“In order to act toward its function as the Judiciary, while acknowledging that this Court should not infringe wholly upon the executive branch, this Court acknowledges that ‘a trial judge has a right, indeed it is his duty, when necessary for the fair, orderly administration for justice, to participate in the trial and facilitate its progress.’ …

“To further the ends of justice, this Court finds that it may question witnesses, a long-held practice in Virginia. …

“Contrary to Sangha, this Court finds that it may call its own witnesses in a criminal case to further the ends of justice. … Rule 2:6149 remains unambiguous: ‘In a civil or criminal case, the court may question witnesses, whether called by itself or a party, subject to the applicable Rules of Evidence,’ Va. Sup. Ct. R. 2:614 (emphasis added), and the plain meaning of the rule is evident[.] …

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

‘Brady’ concerns

This Court holds that the due process obligation under the United States’ and Virginia’s Constitutions to disclose exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, is not per se violated where a case is tried in the absence of a Commonwealth’s Attorney. …

“First, disclosure of exculpatory or impeachment evidence at trial staves off violation of Brady where there is sufficient time for utilization of that information by the defendant. …

“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.

“Where law enforcement facilitates the orderly presentation of witnesses, they aid in their limited capacity as agents of the Commonwealth. … Law enforcement remain obligated to comply with the Court with such requests for information. Upon such request with sufficient time to utilize such information, Brady is therefore not de facto violated in a Non-Commonwealth case [such as the case before this court]. …

“Second, law enforcement agencies certainly understand the repercussions of not disclosing exculpatory evidence. 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. Therefore, law enforcement understands that evidence suppression will occur … under a Brady violation.”

Motion denied.

Commonwealth v. Wilkerson, Case No. CR21000618-01, Sept. 1, 2021, (Order) Newport News Circuit Court (Mills). VLW 021-8-112, 12 pp.