Legal Summaries: Four Important Recent Virginia Supreme Court Cases Dealing with the Interpretation and Application of Criminal Law
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
In the last six months, the Virginia Supreme Court has decided four important cases dealing with the interpretation of Virginia criminal law. All four decisions have significant practical implications for Virginia law enforcement officers.
ATTEMPTED MURDER OF A POLICE OFFICER
In the first of the four cases, Baldwin v. Commonwealth1, the defendant had been pulled over by a police officer for speeding. The defendant stopped his vehicle at the beginning of a paved right-hand turn lane. The turn lane was clear in front of the defendant’s vehicle. The officer approached the defendant’s vehicle on foot from the rear and “stopped by the ‘driver's side rear passenger window’ and ‘the driver's door’ of” the defendant’s vehicle. Because the defendant was talking to someone on a cell phone, the officer tapped on the window of the driver’s side door window to attract his attention. At this point, the defendant drove off by “turning toward” the officer, into one of the non-turning lanes. The office testified that he had to push himself away from the vehicle as it accelerated to prevent the vehicle from running over his feet. After the defendant was apprehended he was charged and later convicted of attempted murder of the police officer.
Under Virginia law, a person must have killed someone with malice aforethought in order to be guilty of murder. Malice aforethought exists if a person intended to kill his victim, but other (lesser) states of mind may also constitute malice aforethought, such as an intent to inflict serious bodily harm on the victim. However, in order to be guilty of attempted murder, the government must prove that the defendant acted with an actual intent to kill. Proof of any other type of malice aforethought is insufficient. Thus, the issue in Baldwin was whether the defendant intended to kill the police officer when he turned his vehicle toward the officer.
The government’s argument that the defendant intended to kill the officer focused on the fact that the defendant did not simply drive his vehicle forward but instead turned the vehicle towards the officer. The contention was that if the defendant intended no harm to the officer, he would have simply driven forward.
In a unanimous opinion written by Justice Agee, the Virginia Supreme Court rejected this argument. While accepting the fact that by turning his vehicle toward the officer the defendant could have caused the officer some physical injury by running over his feet, it was not clear that it was the defendant’s intent to harm the officer. Instead, it seemed likely that the defendant turned toward the officer in order to gain access to the through traffic lanes, from which he could make an escape. Moreover, even if the defendant had intended to run over the officer’s feet, such an intent would not be indicative of an intent to kill.
In rejecting the government’s argument that the defendant intended to kill the officer, the court also rejected the government’s reliance upon previous Virginia appellate cases that had found an intent to kill with a motor vehicle. However, in all of those cases, the defendant had pointed his vehicle toward his victim. The position of the police officer in those cases was such that turning the vehicle in the direction of the officer made it rather clear that the defendant hoped to hit the officer. Given the location of the officer in Baldwin, it was not at all clear that in turning toward the non-turning lanes the defendant hoped to hit the officer.
CONCEALED WEAPONS
The second and third cases both involved prosecutions under Virginia’s concealed weapons statutes. Section 18.2-308 of the Virginia Code prohibits the carrying of concealed weapons without a permit. The first concealed weapons case, Harris v. Commonwealth2, raised the issue of whether a box cutter is a concealed weapon under the statute. The defendant, a convicted felon, had been arrested for public intoxication. A search incident to that arrest resulted in the discovery of a box cutter (or utility knife) in one of the defendant’s pants pockets. The defendant was charged with violating §18.2-308.2 of the Virginia Code, which prohibits a convicted felon from carrying a concealed weapon covered under the provisions of §18.2-308. The issue in this case was whether a box cutter comes within the portion of §18.2-308 that prohibits carrying in a concealed manner "any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal knucks, or blackjack; . . . or . . . any weapon of like kind.”
The court dealt first with the state’s argument that since razors are specifically covered under §18.2-308, box cutters must be covered as well because a box cutter is simply a razor that can be retracted into the handle in which it is housed. However, the court ruled unanimously in an opinion written by Justice Kinser that a box cutter is simply not a razor, because the dictionary definition of a razor is limited to either a straight razor or a safety razor. It does not extend to box cutters.
That conclusion did not end the matter. Even though a box cutter is not a razor, it might be considered a “weapon of like kind” under the statute. However, the court rejected this argument as well because it determined that box cutters are not generally intended to be used as weapons. In coming to this conclusion, the court relied on its decision earlier in the year in Farrakhan v. Commonwealth.3 In that case, the court had held that “in order to be a 'weapon' within the definition of 'weapon of like kind,' the item must be designed for fighting purposes or commonly understood to be a 'weapon.' … Like the kitchen knife at issue in that case, the box cutter that Harris was carrying concealed was not designed for fighting purposes. Nor can we say that a box cutter is commonly understood to be a weapon. As reflected by its dictionary definition, a box cutter is designed to open cardboard boxes.” (This conclusion may have come as something of a surprise to the pilots and passengers of the airplanes skyjacked on September 11, 2001, by terrorists wielding box cutters – had they survived that tragic ordeal).
The second concealed weapon case, Pruitt v. Commonwealth,4 was decided the same day as the Harris case. In Pruitt, the defendant had placed a handgun on the front passenger seat of his car. He was involved in an accident that caused the handgun to fall off the seat onto the floor. Because of the extent of the damage to his car, the defendant knew that his vehicle would be towed. He decided his handgun would be safer in the unlocked console between the front seats, so he placed it there as he prepared to exit his car. The police did an inventory search of his car before it was towed away, found the handgun in the console, and charged the defendant with carrying a concealed weapon.
The defendant argued that in all prior Virginia cases in which convictions for carrying concealed weapons in vehicles had been upheld, the defendants had remained in their vehicles with the weapon for some period of time. In some other cases (not involving vehicles), concealed weapons charges had been overturned because the weapon was not in a place that permitted the defendant ready access to the weapon. Combining the reasoning in these two lines of cases, the defendant argued that his conviction should be overturned because he did not remain in the vehicle long enough after placing his handgun in the console to allow him ready access to the gun.
In a unanimous opinion written by Justice Koontz, the court accepted the defendant’s argument. “[T]he evidence established that Pruitt placed the pistol inside the console compartment as he was exiting his vehicle. Once he exited the vehicle and closed the door, the pistol was no longer accessible to him so as to afford ‘prompt and immediate use.’ Thus, we hold that at no time while the pistol was concealed inside the console compartment was it ‘about [Pruitt's] person’ as required by the statute.”
DRIVING UNDER THE INFLUENCE
In the most recent of the four cases, Jackson v. Commonwealth5, the defendant wrecked his automobile less than 30 minutes after being administered a strong pain-killer by a nurse. The nurse had informed the defendant that the drug would make him drowsy and that he should not drive himself home. The defendant had (falsely) assured the nurse that someone would be driving him home.
The defendant was charged with driving under the influence.6 The statue under which the defendant was charged prohibits anyone from driving a motor vehicle, engine, or train “while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature.” The defendant argued that the statute does not extend liability to a person who is driving under the influence of drugs or intoxicants that were administered to that person by someone else.
The state, of course, interpreted the statute differently. Because the phrase “self-administered” appears after the language that prohibits being “under the influence of any narcotic drug,” it argued that there are two different situations in which the statute prohibits operation of a motor vehicle while driving under the influence of a narcotic drug: “first, the statue proscribes driving under the influence of ‘any narcotic drug,’ self-administered or otherwise; second, driving under the influence of ‘self-administered intoxicant[s] and drug[s] of whatsoever nature.'”
In a unanimous opinion written by Chief Justice Hassell, the Virginia Supreme Court rejected the government’s argument. The court indicated that its first duty in interpreting a statute is to follow the language of the statute where that language is clear. The court concluded that the language of §18.2-266 is clear: “the narcotic drug that the operator of the motor vehicle is ‘under the influence of’ must be self-administered. The phrase ‘or any other self-administered intoxicant or drug’ modifies and places a limitation upon the phrase ‘while such person is under the influence of any narcotic drug.’ Any other conclusion would render the statutory phrase ‘or any other self-administered intoxicant or drug’ meaningless and superfluous.”
Did the General Assembly intend to exempt drivers from liability under §18.2-266 in circumstances such as those in the Jackson case? It seems highly unlikely that this was the General Assembly’s intent; however, courts will not look to legislative intent when the plain language of a statute appears to dictate a particular outcome. The Virginia Supreme Court’s view of the statute is that it does indeed limit liability under the statute to situations where the defendant (and no one else) gave himself the drug that is in his system while he is driving. If the General Assembly wants to close this “loophole” in the criminal law, it will have to do so by amending §18.2-266.
[1] 645 S.E.2d 433 (Va. 2007), decided June 8.
[2] 650 S.E.2d 89 (Va. 2007), decided September 14.
[3] 639 S.E.2d 227 (Va. 2007.
[4] 650 S.E.2d 684 (Va. 2007), decided September 14.
[5] 652 S.E.2d 111 (Va. 2007), decided November 2.
[6] Va. Code §18.2-266.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.