Friday, September 15, 2006

Two really interesting opinions this week from the Virginia Court of Appeals

In Anderson v. Com., the Court of Appeals in a wide-ranging opinion by Judge Kelsey affirmed the defendant's conviction for a 1992 rape and robbery that was based on DNA evidence. The defendant was arrested on similar charges in 2003 and DNA samples taken at that time led to a match in the Commonwealth's DNA databank. The defendant raised a number of interesting issues, including whether the taking of his DNA violated his Fourth Amendment rights, whether the delay in his prosecution violated his due process rights, and whether the failure to present all the witnesses necessary to prove the chain-of-custody of the DNA violated his right to confront his accusers under the Sixth Amendment. In addition, the defendant argued on the robbery charge that after he raped her, the victim willingly gave up her purse, which prompted Judge Kelsey to write in response: "Under this theory, a thief who threatens to shoot a victim before taking her money commits robbery. But a thief who first shoots the victim and then asks for her money does not, apparently because the inherent intimidation of being asked for money by someone who has just shot you should be dismissed as a matter of mere timidity. Suffice it to say, violence immediately preceding a demand for money has always been understood as sufficient to convert mere thievery into robbery."

In O'Connell v. Com., the Court of Appeals in an opinion by Judge Beales rejected the defendant's attempt to rely on the victim's contributory negligence as a defense to the charge of involuntary manslaughter, where the victim died because he wrecked while in a drag race with the defendant. The opinion addresses the law of several states in reaching the conclusion that contributory negligence may only in some limited way go to the issue of causation, but in this case, "a driver’s losing control and crashing is a “reasonably foreseeable” result of a drag race."

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