Johnson motion in Virginia

2024Johnson argues that the trial court erred in denying her motion to strike the malicious wounding charge, asserting that the prosecution failed to provide sufficient evidence that the incident was conducted with malice. “[W]e review factfinding with the highest degree of appellate deference.” Commonwealth v. Barney, 302 Va. 84 , 96 (2023) (quoting Bowman v. Commonwealth, -4- 290 Va. 492, 496 (2015)).

2020“Code § 19.2-327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on non-biological evidence.” Phillips v. Commonwealth, 69 Va. App. 555, 562 (2018) (quoting Bush v. Commonwealth, 68 Va. App. 797, 803 (2018)).

2020“Code § 19.2-327.10 confers original jurisdiction upon this Court to consider a petition for a writ of actual innocence based on non-biological evidence.” Phillips v. Commonwealth, 69 Va. App. 555, 562 (2018) (quoting Bush v. Commonwealth, 68 Va. App. 797, 803 (2018)).

2005See Jones, 267 Va. at 535-36 , 593 S.E.2d at 206 (applying inevitable discovery doctrine as a well recognized “exception” to the exclusionary rule); Copeland v. Commonwealth, 42 Va.App. 424, 432-37 , 592 S.E.2d 391, 395-97 (2004) (recognizing “the inevitable discovery exception to an otherwise invalid warrantless search”). 3 We do not, however, *118 review the record to determine whether the trial court properly applied the doctrine to the factual circumstances of this case.

2005See Jones, 267 Va. at 535-36 , 593 S.E.2d at 206 (applying inevitable discovery doctrine as a well recognized “exception” to the exclusionary rule); Copeland v. Commonwealth, 42 Va.App. 424, 432-37 , 592 S.E.2d 391, 395-97 (2004) (recognizing “the inevitable discovery exception to an otherwise invalid warrantless search”). 3 We do not, however, *118 review the record to determine whether the trial court properly applied the doctrine to the factual circumstances of this case.

2005“The court’s finding as to the credibility of witnesses and the weight of the evidence in support of a motion to withdraw a guilty plea will not be disturbed unless plainly wrong or without evidence to support it.” Jones, 39 Va. App. at 512, 513 S.E.2d at 435 ; see also Moreno v. Moreno, 24 Va. App. 190, 195 , 480 S.E.2d 792, 795 (1997) (noting that, on appeal, we “do[] not . . . make our own determination of the credibility of witnesses”).

2005“The court’s finding as to the credibility of witnesses and the weight of the evidence in support of a motion to withdraw a guilty plea will not be disturbed unless plainly wrong or without evidence to support it.” Jones, 39 Va. App. at 512, 513 S.E.2d at 435 ; see also Moreno v. Moreno, 24 Va. App. 190, 195 , 480 S.E.2d 792, 795 (1997) (noting that, on appeal, we “do[] not . . . make our own determination of the credibility of witnesses”).

2005See Jones, 267 Va. at 535-36 , 593 S.E.2d at 206 (applying inevitable discovery doctrine as a well recognized “exception” to the exclusionary rule); Copeland v. Commonwealth, 42 Va.App. 424, 432-37 , 592 S.E.2d 391, 395-97 (2004) (recognizing “the inevitable discovery exception to an otherwise invalid warrantless search”). 3 We do not, however, *118 review the record to determine whether the trial court properly applied the doctrine to the factual circumstances of this case.

2005See Jones, 267 Va. at 535-36 , 593 S.E.2d at 206 (applying inevitable discovery doctrine as a well recognized “exception” to the exclusionary rule); Copeland v. Commonwealth, 42 Va.App. 424, 432-37 , 592 S.E.2d 391, 395-97 (2004) (recognizing “the inevitable discovery exception to an otherwise invalid warrantless search”). 3 We do not, however, *118 review the record to determine whether the trial court properly applied the doctrine to the factual circumstances of this case.

2003The proffer and the record demonstrate that “[t]he evidence could not have been discovered prior to trial even through the exercise of reasonable diligence and could, if believed, have produced a different result at another trial.” Whittington v. Commonwealth, 5 Va.App. 212, 215 , 361 S.E.2d 449, 451 (1987).

2003The proffer and the record demonstrate that “[t]he evidence could not have been discovered prior to trial even through the exercise of reasonable diligence and could, if believed, have produced a different result at another trial.” Whittington v. Commonwealth, 5 Va.App. 212, 215 , 361 S.E.2d 449, 451 (1987).

1998These statements limited the scope of the trial judge's review to whether Johnson's plea was knowingly made. - 10 - "A well-accepted definition of 'knowingly' is '[a]n act . . . done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.'" United States v. Jones, 735 F.2d 785, 789 (4th Cir. 1984) (citation omitted).

1998In pertinent part, Code § 19.2-296 provides that "[a] motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended." Citing the statute and Parris v. Commonwealth, 189 Va. 321, 324 , 52 S.E.2d 872, 873 (1949), we have previously held that whether a criminal defendant may withdraw a plea of guilty is a matter addressed to the sound discretion of the trial judge.

1998In pertinent part, Code § 19.2-296 provides that "[a] motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended." Citing the statute and Parris v. Commonwealth, 189 Va. 321, 324 , 52 S.E.2d 872, 873 (1949), we have previously held that whether a criminal defendant may withdraw a plea of guilty is a matter addressed to the sound discretion of the trial judge.

1996The Fourth Circuit adopted the Johnson factors in Barber v. Kimbrell, 577 F.2d 216 , 226 (4th Cir. 1978), and the United States Supreme Court adopted them in Hensley v. Eckerhart, 461 U.S. 424,434, n. 9 (1983).

1996The Fourth Circuit adopted the Johnson factors in Barber v. Kimbrell, 577 F.2d 216 , 226 (4th Cir. 1978), and the United States Supreme Court adopted them in Hensley v. Eckerhart, 461 U.S. 424,434, n. 9 (1983).

1996Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) ( 42 U.S.C. § 1988 case); Daly at 1077-78 (shifting the timing of the Johnson analysis, which used to occur after the calculation of the lodestar).

1996Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 175 (4th Cir. 1994) ( 42 U.S.C. § 1988 case); Daly at 1077-78 (shifting the timing of the Johnson analysis, which used to occur after the calculation of the lodestar).

1995See Cheng v. Commonwealth, 240 Va. 26, 33-34 , 393 S.E.2d 599, 603 (1990).

1995See Cheng v. Commonwealth, 240 Va. 26, 33-34 , 393 S.E.2d 599, 603 (1990).

1994See also Battle v. Commonwealth, 12 Va.App. 624, 628-29 , 406 S.E.2d 195, 197 (1991).

1994See also Battle v. Commonwealth, 12 Va.App. 624, 628-29 , 406 S.E.2d 195, 197 (1991).

1994By drawing a connection between Johnson's motion and his dress, the trial judge also tacitly circumvented counsel's argument that Johnson "has a constitutional right to dress in that uniform." It is fundamental to our jurisprudence that a defendant "certainly may not be punished for exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372 , 102 S.Ct. 2485, 2488 , 73 L.Ed.2d 74 (1982).

1994By drawing a connection between Johnson's motion and his dress, the trial judge also tacitly circumvented counsel's argument that Johnson "has a constitutional right to dress in that uniform." It is fundamental to our jurisprudence that a defendant "certainly may not be punished for exercising a protected statutory or constitutional right." United States v. Goodwin, 457 U.S. 368, 372 , 102 S.Ct. 2485, 2488 , 73 L.Ed.2d 74 (1982).

1989Finally, we address Johnson’s claim that the trial court abused its discretion in allowing the Commonwealth to reopen its case-in-chief to prove jurisdiction and venue. “[T]he long-standing rule in Virginia [is] that the order of proof is within the sound discretion of the trial court.” Armes v. Commonwealth, 3 Va. App. 189, 194 , 349 S.E.2d 150, 153 (1986) (citations omitted).

1989Finally, we address Johnson’s claim that the trial court abused its discretion in allowing the Commonwealth to reopen its case-in-chief to prove jurisdiction and venue. “[T]he long-standing rule in Virginia [is] that the order of proof is within the sound discretion of the trial court.” Armes v. Commonwealth, 3 Va. App. 189, 194 , 349 S.E.2d 150, 153 (1986) (citations omitted).

1989In McClain v. Commonwealth, 189 Va. 847, 854-55 , 55 S.E.2d 49, 52-53 (1949), the Commonwealth closed its case and the defendant moved for dismissal for failure to prove venue.

1989In McClain v. Commonwealth, 189 Va. 847, 854-55 , 55 S.E.2d 49, 52-53 (1949), the Commonwealth closed its case and the defendant moved for dismissal for failure to prove venue.

1985Some jurisdictions have held that a competitor is justified by economic self-interest in causing a third person not to enter into a prospective business relationship with another competitor, or not to continue an existing contract terminable at will, provided no "intentional, improper interference" is used, cf. Allen Realty Corp. v. Holbert, 227 Va. 441, 449 , 318 S.E.2d 592, 597 (1984).

1985Some jurisdictions have held that a competitor is justified by economic self-interest in causing a third person not to enter into a prospective business relationship with another competitor, or not to continue an existing contract terminable at will, provided no "intentional, improper interference" is used, cf. Allen Realty Corp. v. Holbert, 227 Va. 441, 449 , 318 S.E.2d 592, 597 (1984).