Tuesday, May 13, 2003

Today's opinions from Virginia Court of Appeals

In Craddock v. Commonwealth, the Court of Appeals in an opinion by Judge D. Arthur Kelsey rejected the appellant's claim that the strip search of the appellant as a pretrial detainee was unreasonable and in violation of the Fourth Amendment.

In Edwards v. Commonwealth, the Court of Appeals in an opinion by Judge Robert Frank agreed with the defendant's argument that assault on a law enforcement officer is not a lesser-included offense of attempted capital murder of a law enforcement officer, and therefore reversed and dismissed the assault conviction.

The panel was sympathetic to the view that the defendant had defaulted on this issue by failure to raise it before the trial court, but it was obliged by prior case law to consider the lesser-included offense issue. Perhaps if Edwards keeps fighting the case, the Commonwealth will seek reversal of Lowe v. Commonwealth, 33 Va. App. 583, 535 S.E.2d 689 (2000), which the Edwards panel felt obliged to follow, despite their misgivings.

In Bazemore v. Commonwealth, a curiously unpublished decision, the Court of Appeals affirmed in part and reversed in part, with Senior Judge Coleman dissenting in part. The point in contention was the trial court's failure to correct the jury instruction to say "willful and wanton" instead of "willful or wanton," following a change in the law which apparently was undetected by either the prosecution or the defense, with regard to the charge of feloniously eluding the police. (I think this opinion should have been published because (1) a conviction was reversed, and (2) the court was not unanimous, (3) the issue involved a change in the substantive law, and (4) the real issue as revealed by Judge Coleman's dissent is how to preserve issues for appellate review.)

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