A good day for criminal defendants

The Supreme Court of Virginia reversed six decisions of the Virginia Court of Appeals today on issues ranging from restitution to the use of a penile plethysmograph test in a sentencing.

A penile plethysmograph attempts to measure the degree of a arousal to various sexual stimuli by measuring changes in the flow of blood to the penis. An attorney for a Tazewell youth convicted of forcible sodomy contended that use of the test in a risk assessment prior to sentencing was improper because it was comparable to a polygraph test and similarly unreliable under the law, and because the prosecution had presented no threshold finding of reliability. A divided panel of the court of appeals disagreed, but the Supreme Court reversed unanimously in Billips v. Commonwealth.

The court ruled in Howell v. Commonwealth that a trial judge had improperly made payment for installation of a security system part of the restitution for the burglary of a business. “Costs that result only indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote and are inappropriate for a restitution payment,” the court said.

In the other cases, the Supreme Court:

● Ruled in Jackson v. Commonwealth that the phrase “under the influence of any narcotic drug or any other self-administered intoxicant” must be construed as a whole so that a defendant was improperly convicted of driving under the influence of the narcotic pain reliever Dilaudid after it had been given to him by an emergency room physician.

● Held in Meeks v. Commonwealth that the venue for credit card theft is “where the card or number is taken from its rightful owner or is received with knowledge that it has been taken with intent to use it, sell it, or transfer it.” The case explicitly overruled the possible interpretation of an earlier case that venue was proper in every jurisdiction where the thief had a card with intent to misuse it.

● Decided in Scott v. Commonwealth that the circumstances of nine robberies in Virginia Beach were not so similar that they constituted a common scheme or plan that permitted them to be presented in the same trial.

● Ruled in McGowan v. Commonwealth that “[t]he commonwealth cannot be allowed to essentially smuggle into evidence during its cross-examination of a defendant proof of another crime not admissible in its case in chief, which is not only highly inflammatory and misleading to a jury, but lacking in serious probative value as well.” Defendant, who was arrested with cocaine two months after the offense for which she was being tried, had testified that she wouldn’t know the drug if she saw it.

The Supreme Court did not hand down Jaynes v. Commonwealth, the most eagerly anticipated criminal case from its September argument session. Jaynes was the first defendant to be sentenced to prison for illegal spamming.