Articles Posted in Criminal

registryIn most states, including West Virginia, when an individual commits a serious sexual offense, he or she may be required to register as a sex offender after a criminal sentence is completed. Due to the high rates of recidivism among sexual offenders and the unique risks posed to children, state legislators have decided that this continued requirement is justified even when an individual has already served time in prison. Recently, however, the local courts in West Virginia asked the Supreme Court to consider a novel question:  whether individuals who committed sexual offenses while juveniles were required to register as sex offenders upon turning 21. The Supreme Court agreed to address this question and resolve the issue.

Continue reading

crimeUnder the federal sentencing guidelines, certain crimes are subject to mandatory periods of imprisonment. Under Section 924(c), whenever a defendant commits a crime of violence that involves the use of a firearm, the defendant must, at the least, be subjected to a consecutive mandatory sentence of at least 10 years in prison. Determining what constitutes a crime of violence under this section has been a subject of much debate. In a recent case before the Fourth Circuit Court of Appeals, the court evaluated whether the crime of carjacking can be a crime of violence.

Continue reading

prisonFor many criminal defendants, the risks of a potential criminal trial far outweigh the possibility of a guilty verdict. This makes the option of taking a guilty plea an appealing way to minimize the risk of a lengthy jury sentence and create more certainty as to the time one will spend in prison. Plea deals also involve signing away many rights, however, and must be approached with a good amount of care and attention to detail. In exchange for a reduction in charges or jail time and avoiding a jury trial, criminal defendants often give up their rights to appeal the proceedings or challenge the ultimate punishment imposed. A recent case before the Fourth Circuit Court of Appeals considered a criminal defendant’s attempt to appeal a sentence by arguing that government attorneys failed to uphold their end of a plea deal bargain.

Continue reading

secretAll criminal defendants are entitled to due process under the law and a fair opportunity to represent themselves at trial. As part of this constitutional right, the Supreme Court has held that defendants are entitled to any information that is exculpatory and would support their defense. Prosecutors cannot withhold information from defendants that would tend to support their defense or exonerate them from the charges. While prosecutors generally abide by this constitutional right, complications can arise when the information that the defendant seeks is highly confidential or privileged. A recent case before the West Virginia Supreme Court looks at the release of information from sensitive and confidential therapy sessions.

Continue reading

knifeIt is a central part of a criminal defendant’s constitutional rights that he or she cannot be convicted of a crime for which he or she is not charged.  As part of procedural due process, a criminal defendant must have an opportunity to know the crime that he or she faces and to address the particular elements of that crime.  Thus, when a State charges a defendant with a certain crime but convicts him or her of a different crime, a constitutional error is said to occur.  However, under Rule 31(c) of the West Virginia Rules of Criminal Procedure, a defendant may be convicted of a lesser included offense of the original charge that was brought without violating these constitutional protections. In State v. Henning, the Supreme Court looked at what constitutes a lesser included offense.

Continue reading

gavelA jury’s verdict in a criminal matter is entitled to great deference by the courts.  Even if a judge, or the parties, may disagree with the outcome that a jury reaches, if the verdict was reached through proper court procedures and was a reasonable result of the evidence presented, jury verdicts will rarely be overturned. Criminal defendants can attack the merits of a jury verdict in two ways. First, they may argue that the verdict was unfairly influenced by things that happened at trial, such as the presentation of evidence that should have been excluded, or a lack of evidence that would support the verdict reached.

Alternatively, defendants can attack the process of reaching the verdict itself, including arguing  that jurors were influenced in the jury room by outside information, or that they acted in such a manner during deliberations as to discredit the verdict. A recent case before the West Virginia Supreme Court of Appeals looks at a defendant’s efforts to invalidate a jury verdict by arguing it was improperly reached.

Continue reading

old dateOne of the more difficult things for victims in criminal litigation to understand is that trials are not opportunities to tell the jury about everything bad that a defendant has ever done.  Trials must focus on proving the current crime or bad act at issue, and evidence is limited to those facts or opinions that are relevant to that crime. The State cannot meet the burden of proof by simply showing that the defendant is an all-around shady character. Instead, the specific elements of the crime must be shown.  In order to prevent trials from becoming mudslinging contests, the West Virginia rules of evidence prevent the state from providing evidence of a defendant’s “prior bad acts” unless they can show that such bad acts are relevant to the current criminal case, and the probative value of such evidence outweighs any prejudicial impact.  A recent case before the West Virginia Supreme Court shows that, in some instances, when prior bad acts are particularly relevant, they may be allowed even if they are from a decade or longe, before the crime was committed.

In State v. Gary A., the Defendant was charged with sexual assault of his seven-year-old niece.  While spending the night at her uncle’s with her two brothers, the Defendant inappropriately touched his niece and forced her to inappropriately touch him.  He was charged and convicted of sexual assault.  At trial, the niece testified, along with her mother and her brother, who were involved in the reporting of the crime.  Additionally, the State of West Virginia called two of the Defendant’s older relatives to testify. They both reported that they had been assaulted in a manner similar to the Defendant’s assault of his niece, when they were younger. After the trial, the Defendant was sentenced to 30 to 90 years in prison. He immediately appealed.

Continue reading

courthouseUpdates on criminal law in the West Virginia courts often focus on issues of Fourth Amendment constitutional rights, sentencing requirements, and when a defendant may be subjected to ineffective assistance of counsel.  While these types of issues make for catchy headlines and good sound bites, a recent decision from the West Virginia Criminal Court highlights one of the most fundamental hurdles that criminal defendants must overcome when having their appeal heard by a judge – whether the appellate court has jurisdiction to consider their arguments.  Jurisdiction is an issue that must always be considered by a court, and without jurisdiction, a defendant cannot have his or her claims heard by that court.  While jurisdiction can be straightforward, such as bringing a lawsuit in the area where an injury occurred, jurisdiction over criminal cases becomes exceedingly complex when dealing with the many avenues for appeal and post-conviction motions that can be raised by defendants. In West Virginia v. Doom, the Supreme Court looked at who keeps jurisdiction over a criminal case when a defendant has filed both an appeal and a post-conviction motion with the trial court.

Mr. Doom was arrested in Braxton County, West Virginia after he was caught attempting to steal a flashlight and several air fresheners from an auto store. He was arrested, charges were brought against him, and he ultimately made a plea deal with the State of West Virginia, whereby he would plead guilty in exchange for the State recommending that his sentence run concurrently with another shoplifting sentence that he faced in a different county.  The plea was entered, and the court scheduled a sentencing hearing. At the sentencing hearing, they sentenced Mr. Doom to one to 10 years in prison, to run consecutively with his other sentence.  After the sentencing, Mr. Doom filed a motion under Rule 35(b) to reduce his sentence. At the same time, he filed an appeal with the West Virginia Supreme Court, arguing that his sentence was disproportionate to the minor offense for which he was charged. Before considering the merits of his appeal, the Supreme Court first questioned whether they had jurisdiction over the appeal, in light of Mr. Doom’s ongoing proceedings before the trial court.

Continue reading

cigarette smokeAs has been discussed in prior posts on this blog, police officers who stop and search individuals in their vehicles, on the street, or in their homes must have probable cause for such a search and seizure. They cannot simply stop individuals at a whim and require that they open up their property and homes to officers. Instead, they must have a legitimate basis for believing that a crime may have occurred that justifies further investigation. But what happens when an initial stop is supported by probable cause, but the search expands to other individuals, other property, or a longer period of time? These types of searches may also be unconstitutional if they are not sufficiently limited in scope and duration. A recent case before the Fourth Circuit addressed whether West Virginia police officers exceeded the appropriate scope during a routine traffic stop.

In United States v. White, West Virginia officers stopped the vehicle of Erica Tuenis after she was observed swerving across lanes while on the road. Mr. White was a passenger in the vehicle when it was stopped.  When the officer approached Ms. Tuenis’ vehicle, he noticed an odor of marijuana. The officer asked Ms. Tuenis to exit the vehicle and, after talking with her, determined that she was not impaired or intoxicated. He asked her if she had been smoking marijuana, and she said no, but she did not know if her passengers had been.  The officer returned to the vehicle and asked to speak with Mr. White. Mr. White denied having any marijuana in his vehicle, and the officer asked him to step out of the car briefly. After Mr. White exited the car, the officer observed a firearm tucked into the side of the passenger seat. He called for backup and arrested Mr. White.  After being read his Miranda rights, Mr. White admitted that the firearm was his. He was later charged with being a felon in possession of a firearm because he had several prior burglary convictions.

Continue reading

sleepingAll criminal defendants are entitled to certain constitutional protections before and after trial. They must be informed of their right to an attorney and their right to remain silent when being asked questions by law enforcement. At trial, defendants are constitutionally entitled to the opportunity to cross-examine witnesses who would testify against them, and to have an attorney by their side. More importantly, the attorney must provide them with effective assistance of counsel. If they are not provided with effective counsel, and the defendant is prejudiced as a result, this is a constitutional basis for overturning a criminal conviction.

The question of what constitutes ineffective assistance of counsel is a complicated one. In most instances, it turns on whether the actions or inactions of counsel so prejudiced the defendant as to prevent him or her from having a fair trial. In certain circumstances, however, the actions of counsel, such as failing to show up at court entirely, can be so markedly ineffective as to be presumptively prejudicial. This is because the decisions or failures of the counsel amount to a complete lack of assistance whatsoever.

Continue reading