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The Legislature is Debating Whether to Get Rid of Mandatory Minimum Sentences. A jury in the City of Winchester Would Agree.

| Feb 11, 2021 | The SoapBox, The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

Norman L. Blowe, Jr. v. Commonwealth of Virginia 10/27/2020.  It was not disputed that, in Blowe’s trial for two counts of production of child pornography, multiple counts of possession of child pornography and taking indecent liberties with a child in a custodial relationship, the jury sought to refer a question to the court during the penalty phase of the trial, but that the court clerk who received the question responded to the jury without consulting the court or informing counsel that the question had been raised.  The jury asked the clerk whether it could “choose ‘nothing’” as the sentence of one charge of production of child pornography, which carries a minimum mandatory sentence of 10 years.  Rather than refer the question to the court, the clerk told the jury that it was required to follow the court’s sentencing instructions.  The jury returned its verdict recommending 13 years, the aggregate minimum mandatory time and $4,600 in fines.

Prior to sentencing, two jurors contacted the court and the Commonwealth’s Attorney to reveal the circumstances in which the question arose.  Although the jurors had found Blowe guilty of all the offenses, the jurors maintained that they were “shocked” when they learned that the second production offense required a mandatory minimum sentence of 10 years.

Blowe filed a motion to set aside the penalty verdict.  The circuit court accepted that there had been an improper ex parte communication with the jury.  However, the court concluded that there was no probability that the communication prejudiced the jury, as the clerk’s answer was a correct statement of law and was “the same exact answer” the court would have given.  The court further noted that as the jury had imposed the minimum time and a fine well below the maximum that would have been possible, Blowe would receive no benefit from a new penalty proceeding, while risking substantially more prison time and fines.

On appeal, the Court of Appeals applied the same analysis as the circuit court.  Like the circuit court, it agreed that while the fact of the ex parte communication creates a presumption of prejudice, it is a rebuttable presumption.  Here the evidence showed that the jury’s question, which related solely to whether it could depart from the instruction and impose no prison time for an offense that required a 10-year mandatory minimum, was correctly answered and that the jury imposed the minimum allowable time not only for that offense, but for all the offenses that required a minimum sentence and no time for the others that did not.  While the jury did not likewise impose the lowest possible aggregate fines, the jury’s question did not relate to fines, and the jury imposed aggregate fines that were less than 10% of the maximum that it might have.  Based on the record and the circuit court’s findings, there was no reasonable probability the ex parte communication, which was a correct statement of law, improperly influenced the jury’s verdict.