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Criminal defense – The appellate option must not be an excuse to drop the ball at trial

Virginia criminal defense lawyer analyes a recent appellate affirmance of a rape and abduction conviction

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The refrain “I will appeal” is common for unsuccessful criminal litigants. However, in Virginia, those convicted of crimes in Circuit Court generally have no automatic right to appellate review of their cases. Instead, a Virginia criminal defendant must convince the Virginia Court of Appeals or Virginia Supreme Court to grant appellate review, through the process of filing a petition for appeal. Va. S. Ct. R. 5:17 and 5A:12. (This is as opposed to the right to obtain a new trial in the Virginia Circuit Court when one is convicted of a misdemeanor or infraction in the General District Court or the Juvenile and Domestic Relations District Court.)

While a trial lawyer certainly must remain mindful of preserving the record for appeal in the possible event of a conviction, the appellate option must never be an excuse to drop the ball at trial.

Furthermore, even when a Virginia appellate court agrees to review a criminal conviction, the rate is high for Virginia’s appellate courts to affirm convictions. That truism happened, for instance, with the recent Court of Appeals opinion in Manneh Vay v. Virginia, ___ Va. App. ___ (Jan. 31, 2017).

Nothing in Vay indicates insufficient performance by his lawyer. Instead, Vay underlines how the trial level is usually the last real hope of obtaining real court relief for a criminal defendant.

Vay was convicted by a jury “of rape in violation of Code § 18.2-61, sodomy in violation of Code § 18.2-67.1, and abduction with intent to defile in violation of Code § 18.2-48.” The Court of Appeals effortlessly swatted down Vay’s five appellate issues as follows:

First, Vay asserted that the evidence was insufficient for the jury to convict for the count of abduction, where the Commonwealth’s/prosecution’s evidence showed that Vay forced his victim at a party into the bathroom, where he then raped her and performed oral sex on her. The Court of Appeals concluded that such evidence was more than sufficient for the abduction count to have gone to the jury. (Of course, such disturbing evidence was at Vay’s deep disadvantage with the jury at the very beginning.)

Second, Vay asserted that the “trial court erred in denying [appellant]’s proposed jury instruction on the law of incidental detention.” Vey responds by saying that Virginia’s Supreme Court has held that “’whether the detention established by the evidence is the kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault is a question of law to be determined by the court’… [T]he trial court in this case did not err in refusing appellant’s proffered instruction regarding incidental detention.”

Third, Vay asserted that the trial court erred by simply accepting his trial lawyer’s assertion that Vay had waived his right to testify, rather than directly inquiring of Vay to assure that he was knowingly and intelligently waiving his right to testify. Vey joinsthe majority of courts [that] have concluded that a trial court is not required to conduct a colloquy with a defendant to determine whether he has knowingly and intelligently waived his right to testify in his own behalf.”

Fourth, the Court of Appeals rejected Vay’s claim that the “trial court erred in refusing to strike for cause a juror with extensive experience teaching and supervising students at the University of Virginia in areas involving sexual assault from a female perspective.” Vey‘s key grounds for rejecting such an argument follow:

Appellant argues that, despite the answers in voir dire and the trial court’s credibility finding, the prospective juror’s work history rendered it impossible for her to sit indifferent in the cause. Although disclaiming that he is seeking such a rule, appellant essentially asks us to find that a person affiliated with women and gender studies in a university setting can never fairly sit as a juror in a sexual assault case in which the defendant is a male. Nothing in Virginia law supports such a per se disqualification rule, and we decline to adopt such a rule here. ”

Fifth and finally, the Court of Appeals rejected Vay’s argument that the “trial court erred in answering two jury questions with an incomplete and misleading statement of the law which violated [appellant]’s fundamental right to a jury trial.” Vey responds:

Because appellant’s appeal regarding the trial court’s answer to the jury’s questions is premised on a position that is wholly inconsistent with the position he took on the issue in the trial court, the approbate/reprobate doctrine bars our consideration of this argument.”

Vey‘s reasoning and conclusions fall squarely within established caselaw and are unlikcly to be disturbed in any further appellate effort by Vey.