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Summary and Analysis of Published Opinions of the Court of Appeals of Virginia from April 6, 2021

by | Apr 8, 2021 | The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog |

This week, the Court of Appeals issued two published opinions, one which covered old ground about the liability of a member of a mob for the felonious act of another, and one in which the Court waded only about ankle-deep into one of the most controversial quagmires of the day – requiring bail for pre-trial release.

Let’s start with the less controversial of the two opinions, shall we?  Anthony Brian Barnett v. Commonwealth of Virginia involves a jury trial in which Barnett was convicted of wounding by mob, in violation of Code § 18.2-41, and assault and battery, in violation of Code § 18.2-57.  Barnett, who was originally charged with malicious wounding, was prepared to take his lumps on the lesser offense of assault and battery, a misdemeanor, but took exception to the felony conviction for wounding by mob.

Now the charge of wounding by mob probably conjures up a scene from Young Frankenstein with Inspector Kemp intoning, “A riot is an ugly thing und once you get one shtarted there is little shance of shtopping it short of bloodshed.”  The facts here are somewhat less dramatic than the possibility of Peter Boyle running amuck in a Transylvanian village.

Barnett was pulling out of a restaurant parking lot when his car was nearly struck by a pick-up truck.  Note that the two vehicles nearly collided.  Rather than counting himself lucky to have avoided an accident, Barnett chose to shout a few words and make a gesture or two expressing his displeasure at the other driver’s motor vehicle operating skills as he drove off.  So far, Barnett is guilty of, at most, being human.

What followed, however, was that Barnett apparently stewed over the incident and shortly thereafter returned to the restaurant to confront the other driver, gesturing for him to step outside.  Words were exchanged, with the other driver making the reasonable point that neither they nor their property had been damaged, and eventually returning to the restaurant with a less than courteous parting epithet.  Barnett is now guilty of being a bit over-sensitive.  And the matter should have ended there.

But, obviously, it didn’t.  Barnett returned home where he changed shoes because he was concerned that the ones he had been wearing were too slick and he wanted a better gripping sole, as he intended to return the restaurant a square off with the other driver – we know this because he called his cousin to meet him at the restaurant as “back-up.”

You know the old saying, “two’s company, three’s a crowd”?  Well, in the law it’s “two’s a conspiracy, three’s a mob.”  Unfortunately for Barnett, the first cousin called another cousin.  Worse for Barnett, the other cousin decided to bring his gun.  And worst of all for all three men, the driver of the other vehicle was also armed.

The scene in the restaurant parking lot is fairly easy to imagine. After calling the other driver (who as apparently unwilling to ignore the challenge) out once more, Barnett threw the first punch and then a general 3-one-one melee ensued.  The driver was down and being pummeled when he told the assailants that he would being shooting if they did not back off and when they persisted, he made good on his threat.  Barnett and one cousin were both shot, but when the driver attempted to retreat to the restaurant, the other cousin shot him.

Barnett appealed his conviction for wounding by mob.  He contended that at the time the victim was shot, the mob no longer existed because he and his cousin were now intent on obtaining treatment for their wounds and, thus, no longer had the intent to harm the victim.  The Court of Appeals noted that the existence of the mob and Barnett’s intent to participate in its acts were issues of fact to be decided by the jury, which had sufficient evidence to conclude the rapid sequence of events were part of the continuing act of the mob when the victim was shot.

Now to the main event.  Commonwealth of Virginia v. Malachi Morgan Thomas is, as the order of the parties’ names suggests, a “Commonwealth’s Appeal,” meaning that the Commonwealth lost on some point in the trial court and is appealing that ruling.  The ruling in this case, was the admission of Thomas to bail prior to trial on charges of rape and forcible sodomy.  The victims were two teenage girls Thomas had connected with over the Internet.  I will spare you the graphic details of the encounters, which were violent.

Thomas was arrested and initially denied bail.  Following his preliminary hearing and indictment, Thomas applied to the circuit court for bail.  At the hearing, the Commonwealth proffered that Thomas was on probation in Norfolk and had charges pending, some of which involved the same victims, in another jurisdiction.

The Commonwealth also presented evidence that Thomas had been “extremely difficult to locate.” A Portsmouth police report indicated that Thomas’s mother reported him as a runaway in December 2019. Additionally, upon searching Thomas’s phone, police found that Thomas had searched the Internet for “ten hideouts for fugitives” and “If I wanted to leave the U.S., what country would I flee to?”

Thomas provided evidence that he was currently enrolled and in good standing as a student at Old Dominion University, would reside in a stable housing situation with his mother, and that he would consent to wearing a GPS tracking device.

The circuit court acknowledged that it was more “concerned about the danger to the community,” than Thomas being at risk for flight, but it nonetheless set bail at $25,000 with surety and set certain other conditions.

Now here is a fact about bail in the Commonwealth that most people unfamiliar with the criminal process may be surprised to learn – especially given that much sturm und drang in the media lately has decried the unfairness of requiring defendants to post bond, in cash or by surety, to remain free while awaiting trial on charges of which they are presumed to be innocent – in almost all felony cases the presumption is in favor of pre-trial release with the burden being on the Commonwealth to prove that the defendant should remain in the pokey.  In almost all cases.  The exceptions are where the defendant has committed “[a]n act of violence as defined in § 19.2-297.1” or “[a]n offense for which the maximum sentence is life imprisonment.”  As you might guess, both rape and forcible sodomy fall into both categories.  Additionally, the presumption against release applies in cases where “[t]he nature and seriousness of the [crime presents a] danger to any person or the community that would be posed by the [defendant’s] release.”

When the presumption does not apply, the burden falls on the defendant to show why he should be granted release – and while there a number of avenues that he can pursue toward that end (including the ones used by Thomas), it is generally agreed that he must convince the court that he does not present a danger to the community if left to roam free (or even tethered to a GPS monitor).  More to the point, case law on this issue requires the trial court to make express findings of a fact that if admitted to bail, the defendant will not pose a danger to the community.  It is not sufficient to assume that because the court stated its concerns in this respect but then admitted Harris to bail nonetheless, it must have found that he was not a danger if held to the conditions of his bail.

It will come as no surprise to those familiar with the usual practice of the Court of Appeals that because this is a published opinion it resulted in a win for the Commonwealth.  Bond decisions, regardless of which party appeals, rarely get more than a cursory review because the standard of review is almost always discretion of the court, something the appellate courts are loath to reverse on.  Here, however, the lack of the express finding of fact required provides the Court with a sound basis to reverse and remand for “enforcement of its judgment.  This simply  means that the order granting bail will be vacated.  Thomas is free to reapply for bail and attempt to show that he is not a danger to the community and have the court make an express ruling on that issue.