091878 Blanton v. Commonwealth 09/16/2010 In an appeal arising from a prosecution for murder and felonious use of a firearm, defendant’s failure to make a timely motion for a cautionary instruction or mistrial concerning the prosecutor’s comment about the defense evidence failing to show that the defendant was not guilty precludes consideration of the merits of her assignments of error regarding this comment. With respect to the prosecutor’s subsequent comment about the defendant being in jail several days after the events, it cannot be said that the circuit court erred as a matter of law in denying defendant’s mistrial motion. Considering the innocuous nature of this comment under all the circumstances of the case, the circuit court’s cautionary instruction to the jury, and the prosecutor’s corrective statement, the defendant’s rights were clearly not so indelibly prejudiced as to necessitate a new trial. The judgment of the Court of Appeals is affirmed.

Will update when I have a chance to read through the opinion.

A former Caroline County deputy was re-indicted this week on allegations that he feloniously abused a child.

Clyde Charles Davenport, 49, of Ashland, was indicted in Caroline County Circuit Court Wednesday on charges of child abuse, child abuse resulting in serious injury and malicious bodily injury.

According to Commonwealth’s Attorney Tony Spencer, the charges stem from incidents that allegedly occurred between January 2005 and December 2006.

Davenport had been indicted in Caroline County last summer on five counts of forcible sodomy of a child under 13. The indictment followed a state police investigation.

But those charges were recently dropped by Spencer in order to present the new charges.

“We felt that it was appropriate to nolle prosse the old charges first,” Spencer said.

So, Spencer has harassed a man for over a year (since July 2008) on charges that he sexually abused his daughter a youth and since that’s apparently bullshit and couldn’t be proved, Spencer has had to resort to this?

And which of the charges presented are more serious? I would consider the five counts of forcible sodomy to be more serious. If I’m not mistaken, they carry a sentence of up to life in prison for each count. And it took over a year for him to figure out the sexual abuse charges were bullshit and/or couldn’t be proven? If he couldn’t prove those charges, how the hell does he plan on proving these?

And how many years will it take for this case to be nolle prossed? One year, two, maybe three?

And does anyone know if you recall constitutional officers in Virginia?

Sound familiar?

I asked regarding a different case and I’ll ask again: “Which office does he go to to get his reputation back?”

Commonwealth’s Attorney Tony Spencer talked about how decisions have consequences and discussed cases he has prosecuted in the county.

The sheriff and prosecutor say they don’t think the county has any real gangs, but they have seen “gang-like” activity in Caroline.

This is absolutely amazing. A couple weeks ago, Spencer wanted to put someone in a real prison for a real amount of time because Spencer alleged that a 16-year-old was a real gang member:

Ricky Alan Heinbaugh Jr. will stay locked up in a juvenile facility until he is at least 18 years old.

[…]

Judge Horace A. Revercomb III sentenced him yesterday to an active sentence of 2 years. But because he is 16, he is allowed to serve the time in a juvenile facility. After two years, Revercomb said, his behavior will be reviewed.

Commonwealth’s Attorney Tony Spencer argued that Heinbaugh’s criminal history and destructive behavior make him a danger to Caroline County. He had a gang expert critique Heinbaugh’s MySpace page, which the expert said had signs of possible gang affiliation to the Bloods street gang, such as tattoos and mannerisms.

And when Spencer was accused of intimidating witnesses who were subpoenaed to testify against Lashawn Monroe, Spencer said that they were really lying and all members of a real gang:

Spencer argued that the seven witnesses called at the hearing had a motive for wanting to speak out against him: They were all in some way friends or relatives of Monroe and had been reluctant to testify from the start.

He added that many of them are members of the same gang.

“This is an effort by a criminal street gang to throw a monkey wrench into the proceedings here,” he said.

Christ, I heard less BS when Latney was the Commonwealth’s Attorney.

And while I disagree with Supervisor Floyd Thomas quite often, he had some great pearls of wisdom at the community meeting:

Supervisor Floyd Thomas pulled $50 out of his pocket to add to the prizes being given away that night. He challenged all of the students to appreciate life.

He talked about how precious life is to him after overcoming cancer two years ago. “To see kids fight over something that doesn’t matter, it just hurts me,” he said.

Ricky Alan Heinbaugh Jr. will stay locked up in a juvenile facility until he is at least 18 years old.

[…]

Judge Horace A. Revercomb III sentenced him yesterday to an active sentence of 2 years. But because he is 16, he is allowed to serve the time in a juvenile facility. After two years, Revercomb said, his behavior will be reviewed.

Commonwealth’s Attorney Tony Spencer argued that Heinbaugh’s criminal history and destructive behavior make him a danger to Caroline County. He had a gang expert critique Heinbaugh’s MySpace page, which the expert said had signs of possible gang affiliation to the Bloods street gang, such as tattoos and mannerisms.

And some expert testimony there too:

Heinbaugh’s mother, Melissa, testified that her son was diagnosed as bipolar, and his destructive behavior began as a result of her nasty divorce from his father. She also testified that she and her daughter have the same tattoo that Heinbaugh has as a symbol of their family’s strength. She said it means “Stay up.”

From the Emporia Independent Messenger:

Boyd has a heavy hitter representing him in defense, attorney Morgan Griffith, who is also the number two Republican in the Virginia House of Delegates, as the District 8 Representative. “The misdemeanor conviction brought on a small fine and 18 months’ probation,” said Griffith. “This all happened before he ever became a teacher. He put down on his application that he had misdemeanors on his record, but wasn’t specific. Boyd was hired at Caroline. The Superintendent of Caroline County Schools, Gregory Killough, knew the specifics of the conviction and said he forgot to mention them to the school board. A second meeting was held and the board learned of the facts surrounding the 1991 case and decided to hire the coach. It was later that the recent charges were filed. “I don’t believe there was a forgery,” said Griffith. He didn’t sign a false name. “Uttering would be the passing of the application and I don’t believe there was any intent to deceive.” Griffith said that Boyd still plans to coach the Cavaliers this year.

Based on what I can find on the application for employees of the Caroline County School Board, the question involved is this: “Have you ever been convicted (as guilty or not innocent) of a violation of law other than a minor traffic violation? (If yes, attach explanation.)” If Griffith is accurate, then Boyd checked “Yes” on that question but failed to elaborate on a separate sheet.

(As a sidenote there’s a question stating: “Have you been convicted (as guilty or not innocent, or a determination of abuse or neglect founded against you) of any offense involving moral turpitude, the sexual molestation, physical or sexual abuse or rape of a child, or any like offense against an adult? (If yes, attach explanation.)” That question is a requirement of Va. Code § 22.1-296.1, but that’s a null point because the crimes that Boyd pled guilty were not crimes “involving moral turpitude” as I previously pointed out.)

And as Griffith pointed out in the story, where’s the intent to defraud that’s a requirement of a charge of forgery? Better yet, where’s the act that Boyd is being charged for? An omission in attaching a sheet to an application results in a charge of forgery and uttering? So much for requiring either an actus reus (guilty act) or a mens rea (guilty mind) to be charged with a crime.

And here’s a simple way to sort all this out without the legal mumbo jumbo: If the Virginia General Assembly ever thought that an omission or untruthful statement on an application was punishable by forgery and uttering of a public document (two Class 4 felonies), then why did they enact § 22.1-296.1 which provides for punishment for omitting or lying about convictions for sexual abuse or a “crime of moral turpitude”, which is only punishable as a Class 1 misdemeanor (up to a year in jail and/or $2,500 fine)? Why be able to charge someone with a Class 1 misdemeanor when you can throw a guy in prison for 20 years for forgery and uttering? It’s going to be some funny stuff when Morgan Griffith — who has been a Delegate for over 15 years — gets up during the trial and starts talking about the intent of  the General Assembly in enacting certain laws.

Boyd is neither guilty of forgery nor uttering of a public document, nor is he guilty of violating § 22.1-296.1; he’s simply guilty of applying for the same job as the son-in-law of Sheriff. He’s also guilty of applying for a job in a county where the Commonwealth’s Attorney has abandoned what’s supposed to be his neutral and detached role.

It looks like Spencer apparently failed Criminal Law 101 at law school too…

H/t: Portsia Smith’s “Caroline Crossroads” blog.

By Major Scott Moser’s own admission “the case is currently under investigation” and “could take a couple weeks” according to Jon Burkett. So, you know, don’t worry about making sure the guy is actually guilty or anything, let’s just indict him. Anyone remember the age old quote about being able to indict a ham sandwich? Perfect example here.

In certain situations, that would be alright. If you catch a suspect standing over a dead body with the proverbial smoking gun, then yeah, you would indict the guy while forensics testing and whatnot were still being done. But this situation takes on a completely different light because the sheriff — the chief law enforcement officer in the county — has publicly and falsely accused Boyd of a different crime previously while displaying zero knowledge of the situation.

And according to The Free Lance–Star (get your own link), Boyd was arrested at the school. That’s right, he wasn’t even given the opportunity to turn himself in. After all, when you have a vendetta against a guy, you want to cause the biggest scene and most embarrassment possible.

Who knows, Boyd could very well be guilty of these charges. But the Sheriff’s Office sure as heck doesn’t know for sure since they have “a couple weeks” of investigating to do still.

And, of course, there’s also the matter of Tony Spencer in this whole thing. He is the Commonwealth’s Attorney after all. But at least he’s been mum to the newspapers and other media stating “This case needs to be tried in a court, not in the press.” That’s a far cry from Lippa’s public announcement of vendetta against Boyd previously as well as Lippa’s personal friend (i.e., Jon Burkett) rushing to do a story about the case for WTVR while parroting everything that comes out of the sheriff’s office.

Yes, they’re friends before you ask. If you don’t believe me, think about this: When does WTVR do any stories about Caroline County? When it involves Lippa and his sheriff’s office. I don’t recall them covering the Gaudenzi case (a 14 year cold case) and, after all, Lippa wasn’t involved in the case, only the Virginia State Police was.

I would love to know why Lippa decided to pursue a vendetta against Boyd, an interesting theory has been suggested elsewhere (primarily on one newspaper’s website) — which I don’t plan on repeating on this space currently — but you better hope that the next person Lippa decides to go after it isn’t you or someone you care about.

He’s the second person to take a plea in this case as I recall. Lashawn Monroe pled guilty for this charge and a capital murder charge a couple months ago.

Two down, seven more to go.

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