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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

September 20, 2022 Opinions of the Court of Appeals

The Court of Appeals release three published opinions on September 20, 2022, all from criminal cases. Craig Carnell Maryland v. Commonwealth is all about "time served." Maryland was convicted of voluntary manslaughter and use of a firearm. We received a total sentence of 15 years, with four years and five months active time. Maryland maintained that he was entitled to credit against this sentence for the time he had spent on pre-trial bond in a home electronic monitoring program. The circuit court found that HEM did not qualify as time served.

Judge White, in her first published opinion, joined by Chief Judge Decker and Judge Beales, affirms. The relevant statute, Code §53.1-187, permits the crediting of time served "spent in confinement or in detention." The Court reasons that while Maryland was in "custody," we was neither confined nor detained. Despite being affirmed, the case is remanded to correct a scrivener's error in the sentencing order.

Diallo Turner v. Commonwealth arises from a motion to suppress the evidence obtained as the result of a traffic stop that was part of a surveillance operation of a suspected drug market. The stop occurred in Fredericksburg about 1 AM on June 3, 2020. The city had declared an emergency curfew from 8 p.m. to 6 a.m. from June 1, 2020 to June 3, 2020 as a result of unrest related to the death of George Floyd at the hands of police in Minneapolis, and Turner's violation of the curfew was the basis of the stop.

The stop was tense, with Turner asking the police "not to kill him." Finding that Turner was driving on a suspended license, police brought a "sniffer" dog which altered on the vehicle and a search found marijuana as well as suspected PCP residue. Turner was Mirandized and made incriminating statements.

Turner moved to suppress the evidence and the attendant statements, arguing that as there were numerous exceptions to the curfew, his mere presence on the street was not sufficient to establish probable cause to initiated the stop. The circuit court ruled that the officer was permitted to conduct the stop in order to determine whether Turner had a justifiable reason for being out past curfew. The Court of Appeals, Judge Beals, joined by Chief Judge Decker and Judge White, affirmed.

Devonza Antiwan Johnson was incarcerated in the restrictive housing unit at the Augusta Correctional Center when he caught the attention of a female staff member and proceeded to masturbate. He was charged with a violation of Code § 18.2-387.1, which criminalizes engaging in masturbation in "a public place." Johnson contended that his cell in the prison was not a "public place" and therefore he was not guilty of the offense. Johnson noted that the language of Code §18.2-387.1 differs from that of Code §18.2-387 which applies to indecent exposure, which can occur in a public place or a place “where others are present.”

The Court, Judge Raphael, joined by Judges AtLee and Friedman, actually find that there is merit to Johnson's argument. The difficulty is, they are not the first judges of the Court of Appeals to address this issue. Under similar circumstances, a different panel of the Court in Barnes v. Commonwealth, 61 Va.App. 495 (2013), held that jails and prisons are "public places" for purposes of Code § 18.2-387.1. The panel finds that it is bound by that decision.

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