1071762

Criminal Law and Procedure
Source: Virginia Law Review, Vol. 55, No. 8 (Dec., 1969), pp. 1581-1608
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1969] Criminal Law and Procedure 1581
CRIMINAL LAW AND PROCEDURE
RIGHTS OF THE ACCUSED
Right to Counsel and Assistance in Trial Preparation
An accused has a well-established constitutional right to counsel at all

critical stages of the guilt-determining process,' and if he cannot afford
an attorney, one must be appointed to represent him.2 A frequent conten-
tion on appeal and in indigents' habeas corpus petitions is that there is a
constitutional right to counsel at the preliminary hearing;3 however, this
claim is usually dismissed as insubstantial absent a clear showing of preju-
dice.4 The hearing in Virginia is not a "critical" stage of the proceedings'
since no defenses must be asserted to avoid waiver, no pleas are accepted
and incriminating statements made by the accused are inadmissible at trial.6
Nevertheless, there are compelling reasons for providing counsel at pre-
liminary hearings as a matter of right. The evidence and legal theories
advanced by the prosecution at this stage are useful in determining the best
plea or the most advantageous defense at trial; the presence of an attorney
helps to dispel any psychological prejudice against the unrepresented de-
fendant and facilitates effective preparation of cross-examination of prose-
1E.g., United States v. Wade, 388 U.S. 218 (1967); Massiah v. United States, 377 U.S.
201 (1964); Hamilton v. Alabama, 368 U.S. 52 (1961); Powell v. Alabama, 287 U.S. 45
(1932).
2 Douglas v. California, 372 U.S. 353 (1963); Gideon v. Wainwright, 372 U.S. 335
(1963).
8 E.g., Blankenship v. Peyton, 295 F. Supp. 16 (W.D. Va. 1969); Chapman v. State,
4 N.C. App. 438, 166 S.E.2d 873 (1969); State v. Redding, 252 S.C. 312, 166 SE.2d
219 (1969); Duffield v. Peyton, 209 Va. 178, 162 SE.2d 915 (1968).
4 Although a preliminary hearing is mandatory under VA. CODE ANN. ? 19.1-163.1
(1960), it is not constitutionally compelled. See note 5 infra. Denial of the hearing
is a procedural rather than a jurisdictional error and hence not grounds for reversal
absent a clear showing of prejudice. See McCormick v. Peyton, 274 F. Supp. 797
(W.D. Va. 1967); Gibson v. Peyton, 262 F. Supp. 574 (W.D. Va. 1966); Webb v.
Commonwealth, 204 Va. 24, 129 S.E.2d 22 (1963); Snyder v. Commonwealth, 202 Va.
1009, 121 S.E.2d 452 (1961).
5E.g., Vess v. Peyton, 352 F.2d 325 (4th Cir. 1965), cert. denied, 383 U.S. 953 (1966);
Duffield v. Peyton, 209 Va. 178, 162 S.E.2d 915 (1968); accord, Chapman v. State, 4
N.C. App. 438, 166 S.E.2d 873 (1969); State v. Redding, 252 S.C. 312, 166 SE.2d 219
(1969).
6 VA. CODE ANN. ? 19.1-267 (1960). In a few jurisdictions pleas may be accepted by the
court at the preliminary hearing and incriminating statements made by the accused
may be used against him at trial. In these states the preliminary hearing is a "critical
stage"; thus, the accused has a right to counsel at the hearing. Arsenault v. Massachu-
setts, 393 U.S. 5 (1968); White v. Maryland, 373 U.S. 59 (1963); Hamilton v. Alabama,
368 U.S. 52 (1961).
1582 Virginia Law Review [Vol. 55:1581
cution witnesses.7 Indeed, the General Assembly has recognized the benefits
of such representation by requiring court-appointed counsel at the pre-
liminary hearing of any felony charge. Since this right is not of constitu-
tional dimensions, however, the statute has not been retroactively applied.9
Thus, although numerous federal habeas corpus petitioners claim the denial
of counsel at preliminary hearings, the Virginia statute has not caused a
flood of retrials.10
7 At least one court has held that counsel must be provided by the state at pr
liminary hearings to suspects who are unable to retain their own counsel. Sparkma
v. State, 27 Wis. 2d 92, 133 N.W.2d 776 (1965).
8 VA. CODE ANN. ? 19.1-241.1 (Supp. 1968) provides:
In any case in which a person is charged with a felony and appears for any
hearing before any court without being represented by counsel, such court shall,
before proceeding with the hearing, appoint an attorney at law to represent
him and provide such person legal representation throughout every stage of
proceeding against him.
The order of appointment of counsel shall be filed with and become a part
of the record of such proceeding. The attorney, so appointed shall represent
the defendant at any preliminary hearing and at all other stages of the pro-
ceeding until relieved or replaced in the manner provided by law.
9 Moon v. Peyton, 257 F. Supp. 998 (E.D. Va. 1966). The Virginia Court of Appeals
has not yet had occasion to rule on the question.
10 One particularly notorious case decided during the Survey period, Pruitt v. Pey-
ton, 209 Va. 532, 165 S.E.2d 288 (1969), recognized that an accused juvenile is entitled
to representation at a certification hearing in juvenile court, where he may be certified
for trial as an adult. Although it was decided under the clear mandate of VA. CODE
ANN. ? 16.1-173 (Supp. 1968), which requires the juvenile court to appoint a probation
officer or an attorney to represent a juvenile if his parents or guardian ad litem are
not present, the case attracted widespread publicity because of its facts. In November
1952, seventeen-year old Allen Carroll Pruitt was arrested on charges of robbery and
murder. He was induced to take a lie-detector test and promised that if he confessed
he would receive only a reform school sentence. He confessed, stood trial as an adult
and was sentenced to life imprisonment. While confined, he stabbed two prison
employees to death, but was acquitted of these murders by reason of insanity. As a
result of the acquittal, several prison guards resigned in protest. Washington Post,
Jan. 21, 1969, at El, col. 6.
Another case decided during the Survey period expanded counsel's duty with respect
to an indigent client's right to appeal. In Duffield v. Peyton, 209 Va. 178, 162 S.E.2d
915 (1968), petitioner informed his court-appointed counsel on several occasions that
he did not want to appeal. Thereafter, the attorney wrote to the petitioner and his
family informing them that his services were concluded and that "if there is any
desire on your part to note an appeal or any other procedure, it will, of course, be
necessary for you to employ private counsel." Id. at 182, 162 S.E.2d at 920-21 (em-
phasis omitted). Although Duffield did not appeal, two years after his conviction he
sought a state writ of habeas corpus. The Court of Appeals, in reversing the lower
court's denial of the petition, held that although the attorney had no duty to inform
his client of his right to appeal, see, e.g., Allred v. Peyton, 385 F.2d 360 (4th Cir. 1967),
cert. denied, 392 U.S. 934 (1968); Dillon v. Peyton, 288 F. Supp. 163 (W.D. Va. 1968);
Griffin v. Peyton, 284 F. Supp. 650 (W.D. Va. 1968); Peyton v. Webb, 207 Va. 417, 149
1969] Crimfinal Law and Procedure 1583
A more serious problem, however, is the extent to which a state must

provide expert witnesses to an indigent in the preparation of his defense.
Two recent decisions denied requests for such assistance. In Houghtaling v.
Commonrwealth'1 the defendant killed his common law wife after she
decided to return to her legal husband. Alleging insanity as a defense, he
petitioned the court to "furnish funds for employment ... of an independent
expert witness to aid in the determination of his mental condition and the
preparation of his defense of temporary insanity." 12 His motion was denied,
and the Supreme Court of Appeals affirmed, holding that the State was not
constitutionally compelled to finance independent pretrial psychiatric eval-
uation.
On the same day, in Foster v. Commonwealth,13 the Supreme Court of Ap-
peals affirmed a lower court's decision denying an indigent defendant's mo-
tion for technical pretrial assistance. Defendant's clothing had been subjected
to chemical analysis by the FBI to determine whether paint chips thereon
were identical to those from the safe which defendant was charged with
burglarizing. Since the Bureau was deemed to be a fair and impartial agency
and the results were made available to defendant's counsel, the Court held
that no further expert chemical analysis was needed.14
In neither Houghtaling nor Foster did the Court discuss the circum-
stances, if any, in which expert aid must be provided by the State. Houghtal-
ing cited a 1953 Supreme Court decision15 as controlling; however, since
that time, Griffin v. Illinoisl6 and Douglas v. California1T have laid the
S.E.2d 889 (1966), there was an obligation not to misinform him. Petitioner's belief,
based upon his attorney's letter that he could not appeal without funds, effectively
denied him the right to an appeal.
While Duffield appears to have reached an impeccable result on the facts presented, the
day when court-appointed counsel does not have affirmatively to inform the accused of
his right to appeal may have passed. In Smith v. McMann, 6 CRIM. L. REP. 2133 (2d
Cir., Oct. 10, 1969) (en banc), the Second Circuit held that an indigent defendant must
be informed of his right to appeal.
11209 Va. 309, 163 S.E.2d 560 (1968), cert. denied, 394 U.S. 1021 (1969).
12 Id. at 311, 163 S.E.2d at 561.
13 209 Va. 297, 163 S.E.2d 565 (1968).
14 The F.B.I. has no special interest in this case and would be as impartial as any
chemist employed by defendant. Further, counsel did not challenge the validity
of the tests nor the competency of those who performed them. This is not a
case of refusing counsel adequate information by which to prepare a proper
defense. On the contrary, technical tests were performed by an expert inde-
pendent and impartial agency and the results were made available to and were
examined by defendant's counsel.
Id. at 301, 163 S.E.2d at 568.
15 United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953) (testimony of independent
court-appointed psychiatrists as to petitioner's sanity satisfies requirement of adequate
counsel).
16 351 U.S. 12 (1956).
1584 Virginia Law Review [Vol. 55: 1581
foundation for recognizing the right to trial and appellate assistance in areas
other than the appointment of counsel. In Douglas the Supreme Court held:
There is lacking that equality demanded by the Fourteenth Amend-

ment where the rich man, who appeals as of right, enjoys the benefit
of counsel's examination into the record, research of the law, and
marshalling of arguments on his behalf, while the indigent, already
burdened by a preliminary determination that his case is without
merit, is forced to shift for himself.18
However, Douglas should not be read to demand absolute equality between

rich and poor. The Supreme Court made it clear that
a State can, consistently with the Fourteenth Amendment, provide

for differences so long as the result does not amount to a denial of
due process or an "invidious discrimination." . . .Absolute equality
is not required; lines can be and are drawn and we often sustain
them."'
Thus, although equal protection and due process require the state to pro-
vide competent counsel for indigent criminal defendants, the indigent
does not necessarily have a right to the same attorney as the millionaire.
In this respect, equal protection can be viewed as an aspect of due process,
requiring the state to negate the inherent advantages of wealth only to the
extent that they substantially prejudice the indigent's defense. Thus, state-
furnished expert trial assistance may be a constitutional prerequisite where
it is basic to an adequate presentation of the indigent's case.20
In Houghtaling defendant argued that without the aid of a psychiatrist
"there can be no illusion of an 'adequate' opportunity to present the in-
sanity defense or of 'substantial equality' in an adversary procedural system
orientated towards a fair trial." 21 Since two psychiatrists and a psychologist
testified for the Commonwealth, defendant contended that it would be
almost impossible to present adequately his main ground of defense to the
jury. The fallacy of this argument, however, is that it views the psychiatrists
as adjuncts to the prosecutor's office. Under Virginia's provisions for pre-
17 372 U.S. 353 (1963).
18 Id. at 357-58.
19 Id. at 356-57.
20 See, e.g., Bradford v. United States, 413 F.2d 467 (5th Cir. 1969) (independent
handwriting expert must be appointed in forgery case unless trial judge determines
that defendant would not be prejudiced by a refusal to appoint experts); State
v. Taylor, 202 Kan. 202, 447 P.2d 806 (1968) (in absence of statute providing for ex-
pert assistance, judge must examine facts and circumstances of each case to determine
whether expert should be appointed in the interests of a fair and impartial trial).
21 209 Va. at 311, 163 S.E.2d at 561.
trial psychiatric examination, the medical expert

ing were agents of the court, not the prosecutor. I
eliminate "battles of the experts," 22 the General
cedure by which either the Commonwealth or th
pretrial commitment in a state mental hospital.23
to believe that the defendant is insane, he may com
hospital for observation and a report. The judge th
one or more physicians skilled in the diagnosis

qualified physicians, . . . to examine the defend
mitment is ordered, make such investigation o
deem necessary and report to the court the con
at the time of their examinationA'
Since the defense attorney is given access to the

ing physicians, Houghtaling's demand of another
amounted to a claim that since the rich man can s
a physician who tells him what he wants to hear,
the same opportunity to hire a psychiatrist who
In a closely analogous case, McGarty v. O'Brien,25
sidered what would happen if defendant's petition
independent psychiatrist then agreed with the re
designated by the Massachusetts Department of M
Would the defendant then be entitled to furth

from the state to continue the search, merely
ample private wealth would perhaps have been
a more favorable psychiatrist somewhere in th
in Europe? We would think not; examination and report by two
competent and impartial experts supplied at state expense is enough,
we think, to satisfy the state's constitutional obligation under the due
process clause.26
22 Statutes of at least thirty-one states, including Virginia, were enacted as a general

response to instances in which opposing psychiatrists pit themselves against one another,
acting as advocates for a particular party. Goldstein & Fine, The Indigent Accused,
the Psychiatrist, and the Insanity Defense, 110 U. PA. L. REV. 1061, 1067 n.16 (1962).
The battle of the experts was thought to be confusing to the jury and discrediting
to both the psychiatric profession and the insanity defense. See, e.g., Glueck, Psychiatric
Examination of Persons Accused of Crime, 36 YALE L.J. 632 (1927); Guttmacher, The
Psychiatrist as an Expert Witness, 22 U. CHI. L. REv. 325, 329 (1955); Leflar, The
Criminal Procedure Reforms of 1936-Twenty Years After, 11 ARK. L. REV. 117, 123-25
(1957); Weihofen, Elimzinating the Battle of the Experts in Criminal Insanity Cases,
48 MIcH. L. REV. 961, 963-65 (1950).
23 VA. CODE ANN. ? 19.1-228 (Supp. 1968).
24 Id.
25 188 F.2d 151 (1st Cir.), cert. denied, 341 U.S. 928 (1951).
26 Id. at 157.
Since the psychiatrist's function is not to act as advocate but rather "im-
partially to examine into and report upon the mental condition of the
accused," 27 appointment of additional physicians should not be required
unless those originally selected by the court were incompetent, biased or
denied relevant information or reasonable assistance to defendant's
attorney.28
In Hudgins v. Circuit Court,29 another recent case dealing with assistance
in trial preparation, a federal district court refused to grant an indigent
petitioner a writ of mandamus to compel the state trial court to furnish
him with trial records necessary to perfect his habeas corpus petition. The
court held that an indigent must be provided a free transcript for purposes of
appeal, but not for habeas corpus.
Under Virginia law30 an indigent is entitled to a free trial transcript for
purposes of appeal from a felony conviction. In 1968 the General Assembly
further provided that a transcript shall be prepared and made available to
any defendant sentenced to five or more years' imprisonment.31 The statute
does not limit the purposes for which these transcripts may be provided,
and it seems to apply to defendants who desire to seek a writ of habeas
corpus. Hudgins was decided after the enactment of this amendment but
sixteen days before it became effective; thus, Hudgins' petition was ill-
timed. Irrespective of the indigent's statutory right to a free transcript,
however, the United States Supreme Court, in a logical extension of
27 Id. at 155.
28 See, e.g., Proctor v. Harris, 413 F.2d 383 (D.C. Cir. 1969) (government is not
obliged to supply psychiatrist favorable to defendant's position; psychiatrists appointed
by the court are sufficient unless defendant's counsel is denied relevant information or
other legitimate assistance from government-employed psychiatrists); Jacobs v. United
States, 350 F.2d 571 (4th Cir. 1965) (where no psychiatric examination was conducted
prior to trial and a prison psychologist testified for the government in the habeas corpus
hearing, petitioner was held entitled to an independent psychiatric examination since
his assertion of diminished mental capacity was not patently frivolous); Naples v.
United States, 307 F.2d 618 (D.C. Cir. 1962) (defendant is not entitled to a psychiatrist
of his own choosing where an idependent psychiatrist has, been appointed and the
findings are made available to defendant's counsel); Bush v. McCollum, 231 F. Supp.
560 (N.D. Tex. 1964) (due process clause required state either to commit defendant
who claims insanity to mental hospital for examination or provide funds for employ-
ment of a qualified psychiatrist). Some courts apparently do not recognize a right to
any form of state-financed psychiatric examination. See, e.g., Watson v. Patterson,
358 F.2d 297 (10th Cir.), cert. denied, 385 U.S. 876 (1966); King v. Cook, 297 F. Supp.
99 (N.D. Miss. 1969); Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967); Coon
v. State, 278 Ala. 581, 179 So. 2d 710 (1965); State v. Crose, 88 Ariz. 389, 357 P.2d 136
(1960).
29 294 F. Supp. 258 (E.D. Va. 1968).
30 VA. CODE ANN. ? 17-30.1 (1960).
31 VA. CODE ANN. ? 17-30.1 (b) (Supp. 1968), amending VA. CODE ANN. ? 17-30.1 (1960
Griffin v. Illinois,32 has recently held that an ind

transcript for habeas corpus hearings:
So long as this system of repeated hearings exi

scripts are available for preparation of appella
corpus cases, they may not be furnished those
and denied those who are paupers.33
Adequacy of Counsel
One of the most common allegations in indigents' habeas corpus petitions

is that the representation by court-appointed counsel was inadequate. These
claims are generally insubstantial and are summarily dismissed. In Bailey v.
Peyton,34 for instance, petitioner charged his court-appointed attorney with
ineffective representation merely because he repeatedly told the defendant
he should not have signed a confession. In Anderson v. Peyton35 defendant
charged his attorney with negligence in the cross-examination of one of
the Commonwealth's witnesses which resulted in the exposure of incriminat-
ing evidence. This petition was dismissed despite counsel's mistake of judg-
ment and trial tactics since the cross-examination was reasonable at the time
and was certainly not serious enough to render the trial "a farce and a
mockery of justice." 36
The sixth amendment does not require an attorney to conduct a flawless
trial resulting in acquittal; it does require effective and diligent representa-
tion. While difficulty may be encountered in determining when counsel has
been so negligent as to have deprived his client of the fair hearing to which
he is entitled, there are certain obvious indicia of inadequacy, one of which
is a conflict of interest. In Dunnivan v. Peyton37 the defendant's court-
appointed attorney was the United States Commissioner who had signed
the flight warrant authorizing extraterritorial pursuit of the defendant as a
fugitive from justice. Dunnivan argued in a habeas corpus petition that the
commissioner was unable to provide effective assistance because of the
potential conflicts of interest with his prosecutorial responsibilities. The
32 351 U.S. 12 (1956).
33 Gardner v. California, 393 U.S. 367, 370 (1969).
34 284 F. Supp. 765 (W.D. Va. 1968).
35 209 Va. 798, 167 S.E.2d 111 (1969).
36 Id. at 804, 167 S.E.2d at 115. Petitioner must prove by a preponderance of the
evidence that his counsel was ineffective, Farmer v. Peyton, 267 F. Supp. 517 (W.D. Va.
1967); Peyton v. Fields, 207 Va. 40, 147 S.E.2d 762 (1966), measured by a standard of
whether the representation was so inadequate as to render the trial a farce and
mockery of justice. Root v. Cunningham, 344 F.2d 1 (4th Cir.), cert. denied, 382 U.S.
866 (1965); Hoffler v. Peyton, 207 Va. 302, 149 S.E.2d 893 (1966); Peyton v. Fields,
207 Va. 40, 147 S.E.2d 762 (1966).
37 292 F. Supp. 173 (W.D. Va. 1968).
1588 Virginia Law Review [Vol. 5 5:1581
district court held that there was no actual prejudice since the commissioner
was not a state employee, no federal charges were prosecuted, and the is-
suance of the flight warrant was merely the exercise of a perfunctory duty,
which evidenced no special interest in the outcome of the case. Moreover,
since petitioner's trial occurred prior to 1965, the court did not apply the
prospective per se rule of Goodson v. Peyton,38 "in which it would be
presumed that one involuntarily represented by a public prosecutor in a
criminal trial has not had the fair trial to which he is constitutionally en-
titled." 39
One month later in Kelly v. Peyton,40 the same court held that the
defendant was not denied effective representation of counsel merely because
the attorney retained by his brother or sister was the justice of the peace who
had signed the defendant's arrest warrant. Not only was evidence of actual
prejudice lacking, but the attorney was privately retained, not court-
appointed.41 As in Dunnivan, absent a clear showing of prejudice there was
no reason to apply retroactively the Goodson rule, since "rc]onflicts of
interest inhere in the situation, but in a given case, they may not be present
at all." 42 A prospective per se prejudice rule- appears to provide the best
means of eliminating potential prejudicial situations without disturbing settled
cases in which an accused was faithfully represented by an officer of the
state.
The length of time between appointment of counsel and trial may be
relevant in deciding whether or not defendant received adequate repre-
sentation. In Ford v. Peyton,43 for example, counsel, appointed by the court
only five minutes before defendant's trial, advised him that if he pleaded
guilty to the seven counts of burglary, he would receive only a ten-year
sentence. Defendant pleaded guilty but was sentenced to twenty-six years.
38 351 F.2d 905 (4th Cir. 1965).

39 Id. at 909-10 (dictum).
40 292 F. Supp. 334 (W.D. Va. 1968).
41 Id. at 337. Some courts only apply the constitutional right to effective representation
of counsel to court-appointed attorneys. See, e.g., United States ex rel. Darcy v. Handy,
203 F.2d 407 (3d Cir.), cert. denied, 346 U.S. 865 (1953); Weatherman v. Peyton, 287
F. Supp. 819 (W.D. Va. 1968). Other courts, however, reject the distinction, confining
their inquiry to the quality of representation afforded the defendant. United States
ex rel. Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967); Kinsey v. Wainwright, 251 F.
Supp. 30 (M.D. Fla. 1965); Shipman v. Gladden, - Ore. -, 453 P.2d 921 (1969); Hines
v. United States, 237 A.2d 827 (D.C. Ct. App. 1968); People v. Brown, 39 Ill. 2d 307, 235
N.E.2d 562 (1968). See generally W. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN
COURTS (1955); Note, Effective Assistance of Counsel for the Indigent Defendant, 78
HARV. L. REv. 1434 (1965); Note, Effective Assistance of Counsel, 49 VA. L. REV. 1531
(1963).
42 Goodson v. Peyton, 351 F.2d 905, 909 (4th Cir. 1965).
43 209 Va. 203, 163 SE.2d 314 (1968).
19691 Criminal Law and Procedure 1589
The Supreme Court of Appeals held that five minutes was clearly insuf-
ficient for counsel to evaluate and investigate the charges and to discuss
with his client the best course of action. Thus, petitioner was entitled to a
new trial, even though no prejudice was shown and there was no indication
that a new trial might produce a different result. Ford is consistent with
Twiford v. Peyton,44 in which the Fourth Circuit said of appointment of
counsel the day of the trial:
These deplorable practices are inherently prejudicial, and a mere

showing of them constitutes a prima facie case of denial of effective
assistance of counsel, so that the burden of proving lack of prejudice
is shifted to the state.45
This approach, however, has not been uniformly followed by the courts in
Virginia which frequently refuse to find inadequate representation of counsel
absent an uncontroverted showing of prejudice.46 Ford and Twiford recog-
nize the expanding view that an adequate defense is not possible unless the
attorney has sufficient time to study and investigate the charges, and confer
with his client and witnesses.
THE GUILT DETERMINING PROCESS
Confessions
In Cardwell v. Commonwealth47 the Supreme Court of Appeals con-

sidered whether the doctrine of harmless error could be applied to a con-
fession obtained without Miranda warnings.48 At trial defendant's incriminat
44 372 F.2d 670 (4th Cir. 1967).

45 Id. at 673.
46 In Harris v. Peyton, 285 F. Supp. 107 (W.D. Va. 1968), it was held that the fact
that defendant did not see his court-appointed attorney until ten minutes before trial
was sufficient to justify a plenary hearing to determine if defendant was adequately
represented. The court stated, however, that "if the records contain adequate affirmativ
evidence that the petitioner was not prejudiced despite the lack of time for preparation
we will not find that petitioner was inadequately represented." Id. at 108. This
rationale was also applied in Via v. Peyton, 284 F. Supp. 961 (W.D. Va. 1968), where
it was held that since it appeared that there were no valid defenses available to the
defendant at trial, the fact that his attorney was appointed the day of the trial wa
not a denial of effective representation of counsel.
47 209 Va. 412, 164 S.E.2d 699 (1968).
48 Miranda v. Arizona, 384 U.S. 436 (1966). Miranda held that in order to protec
suspects from involuntary self-incrimination during custodial police interrogation, the
accused must be informed that he has the right to remain silent, that his statement
may be used against him in court, that he has the right to an attorney, and that if he
cannot afford an attorney, one will be provided by the state.
ing statement to an interrogating officer was admitted to impeach defendant's

testimony that he had no recollection of transferring license tags from a
friend's vehicle to a stolen automobile. The Court of Appeals held that since
the Miranda guidelines had not been followed,49 the officer's testimony was
inadmissible. But in determining whether a new trial was required, the
Court applied the harmless error test of Chapman v. California,6? in w
the United States Supreme Court held that
before a federal constitutional error can be held harmless, the court

must be able to declare a belief that it was harmless beyond a reason-
able doubt.5'
Some rights, including the right to counsel, the right to an impartial judge
and the right to -protection against coerced confessions, were declared by the
Supreme Court to be so basic to a fair trial that their denial can never be
treated as harmless.52 The Virginia Court in Cardwell recognized, however,
that the Supreme Court has never decided that denial of Miranda warnings
is inherently prejudicial. Cardwell comports with the decisions of other
states which have faced the harmless error issue53 and with the logic of the
situation. Since the Supreme Court has refused to apply Miranda retro-
actively,54 recognizing that a confession obtained in absence of the warnings
does not necessarily subvert the basic fairness of the subsequent trial, the
Chapman test seems appropriate. Its application to the facts in Cardwell,
however, demanded a reversal notwithstanding strong corroborating evi-
dence of defendant's guilt, since the Court of Appeals could not "say that the
error complained of was 'harmless beyond a reasonable doubt."'
Miranda warnings were also at issue in Dean v. Commonwealth,56 in
49 The Court noted that the interrogating officer had failed to advise the defendant
that he was entitled to an attorney during the questioning. 209 Va. at 415, 164 S.E.2d
at 702.
50 386 U.S. 18 (1967). In Chapman the prosecutor had taken advantage of a California
constitutional provision permitting him to comment to the jury on the defendant's
failure to testify in his own behalf. While the case was pending, the California pro-
vision was invalidated as violative of the self-incrimination clause of the fifth amend-
ment to the United States Constitution. Griffin v. California, 380 U.S. 609 (1965). The
petitioner in Chapman argued that Griffin dictated reversal of his case, but the Supreme
Court held that in some circumstances federal constitutional errors may be harmless.
51 386 U.S. at 24.
52 Id. at 23 & n.8.
53 Guyette v. State, 84 Nev. -, 438 P.2d 244 (1968); Commonwealth v. Padgett, 428
Pa. 229, 237 A.2d 209 (1968); cf. People v. Powell, 67 Cal. 2d 32, 429 P.2d 137, 59 Cal.
Rptr. 817 (1967).
54 Johnson v. New Jersey, 384 U.S. 719 (1966).
55 209 Va. at 416-17, 164 S.E.2d at 703.
56 209 Va. 666, 166 S.E.2d 228 (1969).
which the defendant had been taken to jail and questioned without the re-
quired warnings. Defendant denied knowledge of the murder under investi-
gation and was taken to the jailor's office. Shortly thereafter, he sent word
that he wished to speak to the police officers, and without further question-
ing, confessed to the murder. Although defendant was not being questioned
at the time he confessed, the confession occurred shortly after his interroga-
tion and while still in custody. A police officer testified that although the
defendant had not been formally placed under arrest, he would not have
been permitted to leave the jail.57 Dean confessed while the prospect of
immediate additional questioning was strong and while a suspected accom-
plice was being questioned in another room. Considering these circumstances,
the Court of Appeals felt that Dean was subject to "compelling influences";:58
thus, the confession should not have been admitted into evidence.
Dean should be compared to Smith v. Peytonr9 in which the defendant
had been in jail for two weeks on suspicion of cattle theft when he called
the sheriff and voluntarily confessed to a different crime without having
received Miranda warnings. The district court held that despite the two-
week confinement, there was no "interrogation" since there was no "ques-
tioning initiated by law enforcement officers." 60 Dean was not discussed in
Smith, but although the cases may appear contradictory, there are signifi-
cant factual differences. Since two weeks had elapsed in Smith between the
questioning by the police and the subsequent confession, a direct causal re-
lation between the two was questionable. Moreover, in Dean there were
"compelling influences" to confess, such as the fact that defendant's alleged
accomplice was being interrogated in another room. Finally, the defendant
in Smith confessed to a crime other than that for which he was interrogated.
Identification Procedures
In 1967 the United States Supreme Court held in United States v. Wade61
that the accused has the right to counsel at the line-up and other witness-
identification proceedings since they constitute a "critical stage" of the
guilt-determining process. Stovall v. Denno,62 in which the Court refused to
apply Wade retroactively, stated that the test for pre-Wade confrontations
57 Id. at 667-68, 166 S.E.2d at 229.

58 Id. at 668, 166 SE.2d at 230, quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966).
59 295 F. Supp. 1379 (W.D. Va. 1968).
60 Id. at 1383, quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966), where the Supreme
Court stated:
By custodial interrogation, we mean questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.
61388 U.S. 218 (1967).
62 388 U.S. 293 (1967).
was whether the identification "was so unnecessarily suggestive and con-

ducive to irreparable mistaken identification that [the accused] was denied
due process of law." 63 While generally condemning the practice of showing
persons to a witness singly,64 Stovall upheld such an identification in the
witness-victim's hospital room as being imperative under the circumstances.
The Virginia Supreme Court of Appeals recently considered a similar
factual situation in Lesoine v. Commonwealth.65 A shooting victim who had
earlier identified the defendant from a small group of photographs exhibited
by the police reaffirmed the identification after defendant was arrested
and brought to the victim's hospital room.66 After dismissing as "without
merit" defendant's contention that the victim was shown the photographs
at a time when his mind was receptive to suggestion,67 the Court noted that
there was no absolute right to counsel since Lesoine's identification occurred
prior to Wade. Furthermore, since the facts were similar to those in
Stovall and no alternate means of identification was available,68 the p
cedure was properly held to comport with the requirements of due process.
While defendant could argue that the exhibition to a witness of a single sus-
pect is inherently prejudicial, the state could argue with equal persuasiveness
that in such a case the victim is the only person who can exonerate the sus-
pect and have him released from custody.69 Lesoine is distinguishable from
Fogg v. Commonwealth70 in which the Court upheld the identification of
the suspect by a rape victim at the preliminary hearing. As Justice Gordon
argued in his dissent to Fogg, there was no necessity in that case for singling
out the suspect in surroundings strongly suggesting his guilt.71 In Lesoine,
63 Id. at 302.
64Id.
65 209 Va. 399, 164 S.E.2d 642 (1968).

66Before the hospital identification occurred, the defendant had been fully advised
of his constitutional rights and had obtained counsel. The police were aware of this
fact prior to the identification. Id. at 401, 164 S.E.2d at 644.
67 Id. at 402, 164 S.E.2d at 644.
68 The victim was apparently in serious condition after having been shot eleven
or twelve times by his assailants. Moreover, some degree of objectivity was ensured by
the identification of defendant by photographs prior to the identification at the hos-
pital. This is not to say, however, that the procedure employed in Lesoine should be
approved for all hospital identifications. If a victim is not in extremis and time is not
of the essence, the accused should be protected from prejudice by the presence of
counsel and by confronting the victim with more than one suspect.
69 The United States Supreme Court in part justified Stovall on this rationale. 388
U.S. at 302.
70 208 Va. 541, 159 S.E.2d 616 (1968).
71 208 Va. at 549-50, 159 S.E.2d at 622-23. Fogg has also been criticized in Criminal
Law and Procedure, 1967-68 Annual Survey of Virginia Law, 54 VA. L. REV. 1579,
1593-94 (1968).
1969] Criminal Law amd Procedure 1593
on the other hand, objective line-up procedur

to attain.
Trial Procedure
In Cassidy v. Peyton,72 another habeas corpus case, the Supreme Court of

Appeals again affirmed the doctrine that under section 19.1-240 of the
Virginia Code,73 entry of an appropriate plea is a jurisdictional pre-
requisite. Petitioner, who had been sentenced upon a plea of nolo contendere,
claimed that acceptance of the plea was improper in a felony case, and that
when received, such a plea vests the court with no jurisdiction over the
accused. Although this result would appear to follow from Roach v. Com-
monwealth,74 the State argued that Roach was based on procedural errors,
which cannot be considered for the first time at a habeas corpus hearing.
The Court of Appeals held that a nolo contendere plea is not a confession of
guilt under section 19.1-240 and that although the entry of the plea
may be termed procedural in the sense that it is one of the steps to be

followed in a felony proceeding, it is nonetheless, under the Roach
decision, jurisdictional in nature in the sense that without such a proper
plea, "there can be no trial of a felony charge." 75
Under the facts presented in Cassidy it is difficult to gainsay the Court's

decision. Clear precedent supports the holding,76 and petitioner may have
believed that nolo contendere was a valid plea which would earn him
a relatively light sentence. However, the erroneous acceptance of a nolo
plea should not dictate a summary reversal by the Court of Appeals in all
future cases. Inherent in a policy of summary reversals is the possibility for
subversion of the judicial process. The defendant might knowingly and
intelligently enter the plea in the hope of receiving a reduced sentence,
72 210 Va. 80, 168 S.E.2d 125 (1969).

73 A person tried for felony shall be personally present during the trial. If when
arraigned he will not plead or answer and does not confess his guilt the court
shall have the plea of not guilty entered and the trial shall proceed as if the
accused had put in that plea. But for the purposes of this section a motion for
a continuance, whether made before or after arraignment, shall not be deemed
to be part of the trial.
VA. CODE ANN. ? 19.1-240 (1960).
74 157 Va. 954, 162 S.E. 50 (1932). In Roach the defendant had originally pleaded
not guilty but decided to plead guilty at the conclusion of the State's evidence. When
the judge informed counsel that the change of plea would remove the case from the
jury, defendant pleaded nolo contendere, and was then sentenced to fourteen years in
the penitentiary. On appeal, the principal question was whether the trial court erred
in accepting the plea of nolo contendere.
75 210 Va. at 82, 168 S.E.2d at 126.
76 Roach v. Commonwealth, 157 Va. 954, 162 S.E. 50 (1932).
1594 Virginia Law Review [Vol. 55: 1581
realizing that he can avoid a heavy sentence by appealing or petitioning for

habeas corpus if he is dissatisfied. Should a hearing reveal such premedita-
tion on the part of the accused, reversal would be unwise. In such a case,
the Court should be as concerned with preventing an attempt to subvert the
sentencing process as with ensuring that there has been "joinder of issue
upon [a] valid plea." T7
The applicability of the sixth amendment guarantees of a "speedy and
public trial" 78 to a nonjury trial conducted in the judge's chambers was ques'-
tioned in Caudill v. Peyton.79 After the defendant has waived his right to a
jury, the trial was conducted without objection in the chambers adjoining
the courtroom. The door was left open, and no one was expressly excluded.
The Court of Appeals, in holding that petitioner had been afforded a public
trial, distinguished Jones v. Peyton,80 in which a trial conducted in the
judge's chambers behind closed doors was completed before a relative of
the defendant, who wished to testify in his behalf, was able to speak. Not
only was no one excluded from Caudill's trial, which was observable from
the courtroom proper,81 but the practice of conducting trials outside the
courtroom is sometimes justified by better acoustics and convenience to the
parties.82 Accordingly, absent a showing of prejudice, the sixth amendment
77 Id. at 960, 162 S.E. at 52. Cf. Di Frischia v. New York Cent. R.R., 279 F.2d 141 (3d
Cir. 1960), where a Pennsylvania plaintiff sued defendant railroad in Pennsylvania
federal court. Defendant moved to dismiss for want of diversity, but the parties then
stipulated that diversity existed. After two years of discovery and other trial prepara-
tion, defendant reasserted his objection to jurisdiction. The district court dismissed,
but the court of appeals reversed, despite FED. R. Civ. P. 12(h) and an earlier decision
holding that the issue of subject matter jurisdiction cannot be waived. Having partici-
pated in pretrial preparations with knowledge of its jurisdictional objection, defendant
was estopped from raising the question. "A defendant may not play fast and loose
with the judicial machinery and deceive the courts." Id. at 144.
78 "In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial ...." U.S. CONST. amend. VI. The right to a public trial was held ap-
plicable to the states in In re Oliver, 333 U.S. 257 (1948). Although at that time
forty-one state constitutions also guaranteed the right to a public trial, id. at 268 & n.18
Virginia remains one of the few states which does not guarantee the right to a public
trial by its constitution or specific statute. However, under Virginia's proposed new
constitution the right would be protected. Va. Acts of Assembly, Extra Sess. 1969, ch.
27, art. I, ? 8, at 64.
79 209 Va. 405, 164 S.E.2d 674 (1968).
80 208 Va. 378, 158 S.E.2d 179 (1967).
81 The Court of Appeals in Jones stated that the term "public trial" is "associated
with the idea of a trial in an open courtroom in which the proceedings are open to
public view." Id. at 380, 158 S.E.2d at 181. Jones recognized that all trials conducted
outside of the courtroom are not necesarily to be condemned; the test is "whether the
public had freedom of access." Id.
82 209 Va. at 407, 164 S.E.2d at 675-76.
should not be read to require that a trial be h

vided the proceedings are reasonably open to th
In Bass v. Commonwealth84 defendant wa
operating a motor vehicle while under the inf
county court86 acquitted defendant of this ch
the lesser included offense of impaired drivin
appeal to the circuit court,88 defendant was again convicted of impaired
driving. Defendant then appealed to the Supreme Court of Appeals con-
tending that the Virginia Code did not permit the trial in the circuit court
for violation of the impaired driving statute, which provides that
[n]o person shall be arrested, prosecuted or convicted for ... [impaired

driving] except as a lesser included offense of a prosecution for
[driving under the influence of intoxicants or self administered
drugs] ... .89
The defendant argued that the statute applied to all trials in all courts
and that a prosecution for drunken driving was a prerequisite to conviction
for impaired driving. This contention was rejected by the Court of
Appeals on the ground that it would render the statute a "virtual nullity." "
This conclusion was not explained, but since the double jeopardy clause of
the Federal Constitution bars retrial on a charge for which defendant was
acquitted,91 defendant's interpretation would indeed leave the circuit court
83 Several other states have held that a trial conducted in a judge's chambers can
be a "public trial." E.g., People v. Williams, 3 Mich. App. 272, 142 N.W.2d 43 (1966);
People v. Terry, 99 Cal. App. 2d 579, 222 P.2d 95 (Dist Ct. App. 1950); Fritz v. State,
146 Tex. Crim. 451, 176 S.W.2d 187 (1943).
84 209 Va. 422, 164 S.E.2d 667 (1968).
85 VA. CODE ANN. ? 18.1-54 (1960).
86 VA. CODE ANN. ? 16.1-12 3 (2) (1960) grants exclusive original jurisdiction to county
courts for the trial of misdemeanors occurring within the county.
87 VA. CODE ANN. ? 18.1-56.1 (Supp. 1968).
88 VA. CODE ANN. ? 16.1-132 (1960) grants a right of appeal from misdemeanor con-
victions in courts not of record to "the circuit court of the county or corporation or
hustings court of the corporation, as the case may be." The county court is a court
not of record. See VA. CODE ANN. ?? 16.1-5, -6 (1960). The appeal to the circuit
court "shall be heard de novo in the appellate court . . . [and] the accused shall be
entitled to trial by a jury in the same manner as if he had been indicted for the offense
in the circuit or corporation court." VA. CODE ANN. ? 16.1-136 (1960).
89 VA. CODE ANN. ? 18.1-56.1 (Supp. 1968).
90 209 Va. at 424, 164 S.E.2d at 669.
91 U.S. CONST. amend. V provides that no person shall "be subject for the same
offense to be twice put in jeopardy of life or limb . . . ." After Bass was decided,
the Supreme Court held in Benton v. Maryland, 395 U.S. 784 (1969), that the double
jeopardy clause of the fifth amendment was applicable to the states through the four-
teenth amendment due process clause. Accordingly, if previous federal double jeopardy
1596 Virginia Law Review [Vol. 55:15 81
in the de novo proceeding without a crime for which defendant could be

tried. Moreover, even though the circuit court retries the entire cause and
is not limited to review of the errors of the county court,92 the de novo
hearing is an appellate proceeding.93 Since the statute merely provides that
a person shall not be "arrested, prosecuted or convicted" for impaired driv-
ing, the Court of Appeals reasonably concluded that the limitation is inap-
plicable to an appeal from an original conviction.
The relation between double jeopardy and trials de novo was also con-
sidered in a federal habeas corpus review of a state conviction in Crawley v.
Wilkerson.4 Petitioner had been tried in a court not of record for reckless
driving and driving under the influence of intoxicants. Pursuant to a state
statute requiring dismissal of one of these charges upon conviction of the
other,95 the reckless driving charge was dismissed after petitioner was con-
victed of drunken driving. On appeal to the Lynchburg Corporation Court
defendant received a de novo jury trial on the driving under the influence
charge. When the petitioner requested an instruction on the lesser, but
separate,96 reckless driving offense, the court refused on the ground that
jeopardy had attached in the defendant's original trial for reckless driving
and that the dismissal with prejudice precluded a later conviction on that
charge. After petitioner was reconvicted of driving under the influence of
intoxicants and his application to the Supreme Court of Appeals for a writ
of error was denied, he petitioned for habeas corpus in federal district court.
The petition was granted on the ground that refusal to give the requested
instruction was a denial of due process and equal protection of the laws. The
federal district court held that
just as the city wanted the option of convicting petitioner of either

of the two offenses stated in the dual charge in the Court not of
cases are now binding on the states, then Green v. United States, 355 U.S. 184 (1957),
dictates that a defendant who is convicted of a lesser offense included in that
charged in the original indictment and who later secures reversal, may be retried only
for the lesser included offense.
92 VA. CODE ANN. ? 16.1-136 (1960); Gaskill v. Commonwealth, 206 Va. 486, 144
S.E.2d 293 (1965); Gravely v. Deeds, 185 Va. 662, 40 S.E.2d 175 (1946); Malouf v.
City of Roanoke, 177 Va. 846, 13 SE.2d 319 (1941).
93 VA. CODE ANN. ?? 16.1-132, -136 (1960).
94 283 F. Supp. 447 (W.D. Va. 1968).
95 VA. CODE ANN. ? 19.1-259.1 (1960) provides:
Whenever any person is charged with [driving under the influence of intoxicants]
. . .and reckless driving growing out of the same act or acts and is convicted
of one of these charges, the court shall dismiss the remaining charge.
96 Although reckless driving is related to drunken driving and carries a lesser penalty,
an intoxicated driver need not drive recklessly to be guilty. Thus, reckless driving is not
a lesser included offense of driving under the influence of intoxicants. Hundley v. Com-
monwealth, 193 Va. 449, 69 S.E.2d 336 (1952).
Record, "due process" and "equal protection of

accused to have, on appeal to a Court of Rec
the opportunity to present those same options to the judge or jury
of that court.97
The district court supported its award of the writ with three arguments
which touch on the nature of the trial de novo system of appeal and the
principles of double jeopardy. First, dismissal of the reckless driving charge
was not a dismissal on the merits98 but a procedural dismissal necessitated by
section 19.1-259.1 of the Virginia Code.99 Therefore, the dismissal was not
with prejudice. Second, failure to give the requested instruction impaired
the right to a trial de novo because it foreclosed consideration of options
which were available to the lower court.100 Moreover, since the accused
would have been able to assign as error failure to convict of the lesser
charge had the original proceeding been in a court of record, his trial de
novo without consideration of the lesser offense was more restricted than
the normal right of appeal. Third, even if double jeopardy is operative in
the case, it is a personal affirmative defense of the accused which can be
waived by him.101
The court's conclusion is strengthened by the fact that although the
double jeopardy clause bars retrial for a more serious offense after defendant
has successfully appealed his original conviction,102 the double jeopardy
principle is inapplicable to a retrial for the same offense after a successful
appeal.-13 By the same token, a defendant may be convicted of a lesser, but
97 283 F. Supp. at 449. Although the state courts erroneously interpreted the double
jeopardy clause to the prejudice of petitioner, he could not argue that he was placed
"twice in jeopardy of life or limb." Rather, the courts had forced him to accept a
"right" which he wished to waive. Thus, in order to find that petitioner was in
"custody in violation of the Constitution" within the meaning of the federal habeas
corpus statute, 28 U.S.C. ? 2241(c) (3) (1964), the district court was required to rely
on the "due process" and "equal protection" rationales.
98 283 F. Supp. at 449.
99 See note 95 s-upra.
100 283 F. Supp. at 449.
101 The Virginia Court of Appeals has held that the principle of double jeopardy is
waived unless raised by affirmative defense. Royals v. City of Hampton, 201 Va. 552,
Ill S.E.2d 795 (1960). Moreover, courts have traditionally held that a new trial is
justified after a successful criminal appeal since, by appealing, defendant waives his right
to plead former jeopardy. E.g., Bryan v. United States, 338 U.S. 552 (1950). A
fortiori, defendant should be able affirmatively to waive the defense of double jeopardy
in the rare case where waiver would be to his advantage.
102 See note 91 supra.
103 E.g., North Carolina v. Pearce, 395 U.S. 711 (1969); United States v. Tateo, 377
U.S. 463 (1964); Bryan v. United States, 338 U.S. 552 (1950); Note, Twice in Jeopardy,
75 YALE L.J. 262 (1965).
1598 Virginia Law Review [ Vol. 5 5:15 81
related, offense involving the same elements as the c

he appeals. Nevertheless, there may be some unfort
Dalton's opinion. In stating that double jeopardy wa
the initial conviction "became null and void when p
court of record," 104 Judge Dalton lent support to
practitioners that an accused may be convicted in a
fense of which he was acquitted in the misdemeanor
jeopardy principle of the fifth amendment was extended
the fourteenth amendment in Benton v. Maryland,10
a conviction could withstand challenge.106
Search and Seizure
In Aguilar v. Texas107 the United States Supreme Court held that although
a search warrant may validly be based on hearsay information, the affidavit
supporting the warrant must state facts or circumstances sufficient to permit
the magistrate to determine independently whether there exists "probable
cause" for the issuance of the warrant. In holding inadequate as a "mere
conclusion" 108 an affidavit which alleged that "reliable information from a
credible person" 19 had been received by the affiant, the Court stated that
the magistrate must be informed of some of the underlying circum-

stances from which the informant concluded that the narcotics were
where he claimed they were, and some of the underlying circum-
stances from which the officer concluded that the informant, whose
identity need not be disclosed, . . . was "credible" or his information
"reliable." 110
In a similar case decided during the Survey period, Wiles v. Common-

'wealth,111 defendant's home was searched pursuant to a warrant based on an
affidavit which alleged that the vice squad had received several complaints of
constant drug use by defendant and that a reliable informant had stated
that defendant was in possession of narcotics. The search uncovered drugs
which were subsequently used as evidence. Defendant was convicted, and
he appealed, alleging that the affidavit contained insufficient facts to justify a
finding of probable cause. The affidavit detailed none of the "several com-
104 283 F. Supp. at 449.

105 395 U.S. 784 (1969).
107 378 U.S. 108 (1964).
108 Id. at 113.
109 Id. at 109.
o Id. at 114.
111 209 Va. 282, 163 S.E.2d 595 (1968).
19691 Criminal Law and Procedure 1599
plaints" against defendant; the magistrate was not informed when the com-
plaints were made; nor was there a recital of the basis of any complaint.
Moreover, the affidavit stated no facts or circumstances underlying the tip
of the "reliable informant"; it failed to reveal whether the information was
based on the personal knowledge of either the informant or the affiant; and
it did not state when the informant had previously tendered reliable in-
formation. Since the affidavit was "merely a statement of the conclusion
of the affiant," 112 under the test of Aguilar the Court of Appeals was com-
pelled to reverse defendant's conviction.
In Duffield v. Peyton'13 police officers went to petitioner's home without
an arrest or search warrant to question him about a rape-murder which had
occurred the previous day. Petitioner was not at home, but his wife admitted
the officer to await his arrival. When asked whether she knew what
petitioner wore the previous day, the wife left the room and returned
with clothing which was later related to the crime. The officers apparently
had not requested her to produce the clothing, and after petitioner arrived
home, he permitted the officers to take the clothing to the police station.
Although the Court of Appeals reversed the lower court's denial of Duf-
field's state habeas corpus petition on other grounds,114 petitioner's claim
that his clothing was illegally seized was rejected. The Court noted that the
police had not gained admittance to the house by force or trickery, that they
had made it known that they intended to question petitioner about a crime,
and that they had not searched the house for the clothing. Since the police
had not pried into hidden places or conducted an exploratory investigation
and since petitioner had consented to possession of the clothing by the
police, there had been no search or seizure by the police.115
Prior to the Supreme Court's recent decision in Chimel v. California,""6
which narrowly redefined the constitutionally permissible scope of a
warrantless search incident to a lawful arrest,117 the Supreme Court of
Appeals decided two cases involving searches of automobiles incident to the
arrest of their owners. In Carter v. Co7nnonwealt'18 the defendant was
arrested for robbery. His automobile was taken to the city hall parking
112 Id. at 286, 163 S.E.2d at 598.

113 209 Va. 178, 162 S.E.2d 915 (1968).
11' 209 Va. at 183, 162 S.E.2d at 918-19, citing State v. Coolidge, 106 N.H. 186, 208
A.2d 322 (1965); accord, e.g., Davis v. United States, 409 F.2d 1095 (5th Cir. 1969);
Davis v. United States, 327 F.2d 301 (9th Cir. 1964); State v. Curtis, 10 Ariz. App. 38,
455 P.2d 988 (1969); Martinez v. People, - Colo. -, 456 P.2d 275 (1969); State v.
Smith, 157 Conn. 351, 254 A.2d 447 (1969); People v. West, 144 Cal. App. 2d 214, 300
P.2d 729 (Dist. Ct. App. 1956).
116 395 U.S. 752 (1969).
117 See text at notes 131-35 infra.
118209 Va. 317, 163 S.E.2d 589, cert. denied, 391 U.S. 991 (1968).
lot, where the following morning it was searched without a warrant.

Although the search was for the purpose of locating a wallet for use against
the defendant in another case, several stolen radios were found and later
introduced into evidence to convict the defendant. In reviewing the con-
viction, the Court of Appeals held that since the radios had been left in
plain view on the back seat and floorboard, there was no search within the
purview of the Federal Constitution or state statutory law.119 A search im-
plies prying into hidden places;1-O the police should not be required to be
blind to the obvious.
The Court alternatively held on the basis of Cooper v. California'21 that
even if the car had been searched, the search was reasonable under the
circumstances.122 Cooper involved California's peculiar statutory provisions
governing impoundment of vehicles illegally used to transport narcotics.
Under a state statute such automobiles must be held as evidence until a
forfeiture is declared or a release ordered. In upholding a search of de-
fendant's impounded car one week after his arrest, the Supreme Court
concluded:
It would be unreasonable to hold that the police, having to retain the

car in their custody for such a length of time, had no right, even for
their own protection, to search it. It is no answer to say that the
police could have obtained a search warrant, for "[tihe relevant test
is not whether it is reasonable to procure a search warrant, but
whether the search was reasonable." 123
Although the outcome in Carter can be justified,124 the alternate holding

is suspect. Whereas Cooper was a narrowly circumscribed decision based
on California's forfeiture scheme, the facts in Carter are closely analogous
to those in another Supreme Court case, Preston v. United States,125 which
the Virginia Court did not attempt to distinguish. In Preston three men in
a parked car were arrested for vagrancy, and after their vehicle was towed
to a garage, it was searched by the police. The Supreme Court held that
119 Id. at 320, 163 S.E.2d at 592. VA. CODE ANN. ? 19.1-88 (1960) requires policem
to obtain a search warrant prior to searching "any house, place, vehicle, baggage o
thing." Although the statute is worded in absolute terms, the statute only proscri
"unreasonable" warrantless searches. 209 Va. at 320-21, 163 S.E.2d at 592; cf. One
1963 Chevrolet Pickup Truck v. Commonwealth, 208 Va. 506, 158 S.E.2d 755 (1968)
120 See cases cited in note 1 15 supra.
121 386 U.S. 58 (1967).
122 209 Va. at 320, 163 S.E.2d at 592.
123 386 U.S. at 61-62, quoting United States v. Rabinowitz, 339 U.S. 56, 66 (1950).
124 See text at notes 119-20 supra.
125 376 U.S. 364 (1964).
19691 Criinal Law and Procedure 1601
a contemporaneous search would have been permissible to seize weapons

or the fruits and implements of crime; however,
these justifications are absent where a search is remote in time or place

from the arrest. Once an accused is under arrest and in custody, then
a search made at another place, without a warrant is simply not in-
cident to the arrest.126
After a suspect has been arrested and his automobile has been taken to a
garage, there is no danger that weapons in the car could be used against the
arresting officers, that the evidence would be destroyed or that the car
would be removed from the jurdisdiction. Thus, in ignoring Preston the
Court of Appeals failed to consider a relevant case which might have
dictated the avoidance of an unfortunate alternate basis for decision.
Paradoxically, the Court of Appeals, without mentioning Carter, relied
heavily on Preston in upholding an automobile search in Kirby v. Common-
wealth,127 in which the police discovered incriminating evidence in a search
of the defendants' car at the scene of a license plate theft, after the four sus-
pects had been arrested and taken to jail. The Court, impressed by the fact
that a policeman had personally observed the theft, felt that the searchers had
sufficient reason to believe other weapons and fruits or instrumentalities of
crime were in the automobile. Consequently, focusing on a portion of the
language quoted from Preston,l28 the Court found that the search was not
remote in time or place from the arrest.129 In thus emphasizing the proximity
of the search to the arrest, the Court of Appeals ignored the basic reasons
expressed in Preston for a permissible warrantless search incident to a
lawful arrest-a threat to the security of the arresting officers or the possi-
bility of destruction of evidence.'30 No such dangers existed in Kirby
since the suspects had been taken to jail before the search occurred; thus,
reliance on Preston appears to have been erroneous.
126 Id. at 367.

127 209 Va. 806, 167 S.E.2d 411 (1969).
128 See text at note 126 supra.
129 209 Va. at 810, 167 S.E.2d at 414.
130 The Supreme Court in Preston stated:
This right to search and seize without a search warrant extends to things under
the accused's immediate control . . . and, to an extent depending on the circum-
stances of the case, to the place where he is arrested . . . . The rule allowing
contemporaneous searches is justified, for example, by the need to seize weapons
and other things which might be used to assault an officer or effect an escape,
as well as by the need to prevent the destruction of evidence of the crime-
things which might easily happen where the weapon or evidence is on the accused's
person or under his immediate control. But these justifications are absent where a
search is remote in time or place from the arrest.
376 U.S. at 367.
1602 Virginia Law Review [ Vol. 5 5:15 81
The Court of Appeals in both Carter and Kirby relied in part on United
States v. Rabinowitz,'31 which had been interpreted to permit warrantless
searches in the area generally under the "possession" or "control" of the
person arrested.132 Rabinowitz, however, was recently overruled by Chimel
v. California,133 which limits the area which may be searched incident to a
valid arrest to "the area from within which [the accused] might gain posses-
sion of a weapon or destructible evidence." 134 Carter and Kirby were both
decided prior to Chimel, but as the Supreme Court noted in Chimel, the
decision was foreshadowed by Preston v. United States.135 Under the test
of either Preston or Chimel the Virginia Court misconstrued the applicable
law.
SENTENCING PROCEDURES
Jury Sentencing
In Harmon v. Commonwealth'36 the jury found defendant guilty of mak-

ing obscene telephone calls and fixed sentence at one hundred dollars and
a suspended term of twelve months in jail. The trial judge informed the
jury that they lacked power to suspend sentence and that the verdict would
be considered as a recommendation for mercy. The judge then rejected
the recommendation and polled the jury on the amended verdict. Each
jury member affirmed the imposition of a twelve-month term. On appeal the
Court rejected defendant's contention that amendment of the jury verdict
was improper, reasoning that since a jury's recommendation of mercy car-
ries no legal effect in Virginia and may be disregarded by the judge,137
131 339 U.S. 56 (1950).
132 See Chimel v. California, 395 U.S. 752, 760 (1969).

133 395 U.S. 752 (1969).
134 Id. at 763.
135 Id. at 763. See note 130 supra.
136 209 Va. 574, 166 S.E.2d 232 (1969).
137 Id. at 581, 166 S.E.2d at 237, citing Clarke v. Commonwealth, 207 Va. 298, 149
S.E.2d 875 (1966). This rule has been criticized because it can trap "an unwary jury
into fixing a more severe sentence than they intended" and because the judge who ac-
cepts a jury's verdict, having no desire to follow the recommendation of mercy, does
not meet the standard of candor which should be expected of the judiciary. Ritz,
Crminial Law and Procedure, 1966-67 Annual Survey of Virginia Law, 53 VA. L. REv.
1584, 1589-91 (1967). The situation in Harmon presents even more serious problems
than those posed by Clarke. Whereas the jury in Clarke merely recommended that a
portion of the sentence be suspended, the Harmon jury unequivocally suspended
sentence, thus strongly indicating that it assumed that it possessed the power to do so.
Moreover, it may have imposed a significantly reduced sentence if it had properly
understood its powers.
amendment of the verdict did not constitute reversible error138 although it

would have been preferable to send the jury out to reconsider.
When a jury misapprehends its authority and returns an unacceptable
verdict, numerous factors might have affected the magnitude of the sen-
tence imposed. Insisting that the jurors reevaluate these factors without
further deliberation by subjecting them to a poll in open court pressures the
jurors to allow the original verdict to stand in a manner consistent with the
law and undercuts the policy supporting secret jury deliberations. These
subtle pressures are particularly obvious in Harmon, where each jury mem-
ber immediately agreed that defendant should spend one year in jail instead
of no time at all. If the jury had had time to reconsider, it is likely that they
would have returned a significantly reduced jail sentence.
Sentencing by the Court
In 1967 the Fourth Circuit held in Patton v. North Carolina,139 that the
due process, equal protection and double jeopardy clauses of the Federal
Constitution are an absolute bar to harsher penalties on retrial of successful
appeals by criminal defendants. Numerous other circuits disagreed with this
view,'40 and the Supreme Court recently resolved the conflict in North
Carolina v. Pearce'4' by holding that although the equal protection and
double jeopardy clauses do not bar greater sentences after successful appeals,
the due process clause provides protection against the vindictive judge who
might penalize defendants for exercising the right to appeal. Since the fear
of improper motivation by the sentencing judge might deter some de-
fendants from appealing,142 harsher sentences after retrial can be imposed
only in a carefully delineated class of cases.143
138 Although the Court of Appeals noted that defendant failed to object to the judge's
action at trial, it went on to dispose of defendant's contentions on the merits. 209 Va.
at 581, 166 S.E.2d at 237.
139381 F.2d 636 (4th Cir. 1967), cert. denied, 390 U.S. 905 (1968).
140 United States v. Coke, 404 F.2d 836 (2d Cir. 1968) (en banc); Williams v.
Alabama, 403 F.2d 1019 (5th Cir. 1968); Odom v. United States, 403 F.2d 45 (5th Cir.
1968); United States v. Fairhurst, 388 F.2d 825 (3d Cir.), cert. denied, 392 U.S. 912
(1968); United States v. White, 382 F.2d 445 (7th Cir. 1967), cert. denied, 389 U.S. 1052
(1968); United States ex rel. Starner v. Russell, 378 F.2d 808 (3d Cir.), cert. denied, 389
U.S. 889 (1967); Marano v. United States, 374 F.2d 583 (1st Cir. 1967).
141 395 U.S. 711 (1969).
142 Cf. Fay v. Noia, 372 U.S. 391 (1963).
143 The Court held that a more severe sentence can be imposed after retrial if, but
only if, objective information concerning identifiable conduct on the part of the de-
fendant occurring after the time of the original proceeding affirmatively appears to
the sentencing judge and is made part of the record so that the constitutional legiti-
macy of the increased sentence may be fully reviewed on appeal. 395 U.S. at 726.
In May v. Peyton,'44 decided during the

guidelines were announced, the Fourth Cir
that the harsher sentence imposed on petitioner after retrial was uncon-
stitutional. The Commonwealth argued that Patton was inapplicable since
May was resentenced by a jury, not by a potentially vindictive judge, but
the Fourth Circuit rejected this proposed distinction. The Pearce decision
seems to have been premised solely upon the ground that due process re-
quires that the "defendant be freed of apprehension of . . . a retaliatory
motivation on the part of the sentencing judge," 145 an element absent in
jury sentencing.'46 Moreover, the Court apparently rejected the argu-
ment that the mere existence of fear of a higher sentence on retrial, regard-
less whether imposed by judge or jury, effectively deters appeals to reverse
errors in the record. Thus, Pearce alone would seem to leave the jury in a
retrial free to return a sentence unlimited by the punishment imposed in
the court of first impression. On the other hand, the jury's imposition of a
higher sentence on retrial might produce an unconstitutional discouragement
of the defendant's right to a jury trial guaranteed by the sixth amendment.147
If a judge hearing a case on retrial is limited in his ability to increase the
sentence while a jury is not so limited, defendants who have been success-
ful on appeal will be tempted to waive their constitutional right to have
their case heard before a jury.
SUBSTANTIVE CRIMINAL LAW
Statutory Interpretation
In two recent cases the Court of Appeals applied the familiar principle
that penal statutes are to be strictly construed in favor of the accused and
are not to be extended by implication or construction.148 In Berry v. City of
144 398 F.2d 476 (4th Cir. 1968).
145 395 U.S. at 725.
146 Since the jury in the second trial would differ from that in the first proceeding,
the danger of vindictiveness resulting from damaged pride from being reversed on
appeal would be absent. Moreover, the second jury would ordinarily not be informed
that defendant has been tried and convicted in an earlier proceeding for the offense
charged.
147 See United States v. Jackson, 390 U.S. 570 (1968), where the Court declared
unconstitutional that portion of the Federal Kidnaping Act which provided for the
death penalty only upon jury recommendation. Since defendants who pleaded guilty
or waived jury trial could not receive the death penalty, the provision unnecessarily
discouraged the assertion of the fifth amendment right not to plead guilty and the
sixth amendment right to demand a jury trial.
148 E.g., Wade v. Commonwealth, 202 Va. 117, 116 SE.2d 99 (1960); Anderson v.
Commonwealth, 182 Va. 560, 29 S.E.2d 838 (1944); Boyles v. City of Roanoke, 179
Va. 484, 19 S.E.2d 662 (1942); Gates & Son Co. v. City of Richmond, 103 Va. 702, 49
S.E. 965 (1905).
Chesapeake'49 defendant was convicted under a

it
unlawful for any person to carry any loaded firearms on any public
lands except those legally opened for hunting, or on a properly estab-
lished target shooting range, except persons authorized by law to
carry loaded firearms.'50
In reversing defendant's conviction for carrying loaded guns in his truck

while driving on a public highway, the Court of Appeals held that highways
are not "public lands" under the ordinance. The Court stated that the term
"public lands" normally designates lands which are subject to sale or dis-
posal under general laws and does not refer to lands held for any special
governmental purpose.'5' Moreover, the ordinance itself recognized that
public land is land which might be "legally opened for hunting." Accord-
ingly, the Court held that defendant's conduct was not proscribed by the
ordinance.
In Price v. Conmonwealthl'2 defendant was convicted for burning a
cross on a public sidewalk in violation of section 18.1-365 of the Virginia
Code, which provided:
It shall be unlawful for any person . . . to place or cause to be placed

on the property of another in the Commonwealth of Virginia a burn-
ing or flaming cross . .. without first obtaining written permission of
the owner or occupier of the premises....153
Defendant argued that the "property of another" should be construed to

apply only to the property of another individual; the Commonwealth argued
that "another" means "another person" and that the concept of "person"
includes municipalities. The Court of Appeals, while acknowledging that the
Virginia Code provides that the word "person" as used therein "may extend"
to municipalities,154 noted that the word "may" is permissive and con-
cluded that "person" should be interpreted to apply to political bodies only
where reasonable. Since most citizens would probably not think of city side-
walks as the property of another and since penal statutes are to be strictly
construed, the Court held that the statute did not include public property.
149 209 Va. 525, 165 SE.2d 291 (1969).

150 CHESAPEAKE, VA., CODE ? 23-51 (1969).
151 209 Va. at 526-27, 165 S.E.2d at 292, citing Holz v. Lyles, 280 Ala. 521, 195 So.
2d 897 (1967); State ex rel. Town of Crescent City v. Holland, 151 Fla. 806, 10 So. 2d
577 (1942).
152 209 Va. 383, 164 SE.2d 676 (1968).
153 VA. CODE ANN. ? 18.1-365 (1960) (emphasis added).
154 VA. CODE ANN. ? 1-13.19 (1966).
The Court also noted that section 18.1-365 has recently been amended to
forbid cross burning "on the property of another or on public property." 155
If the unamended statute were applicable to public sidewalks, the amend-
ment would have been unnecessary.
Jury Instructions
In Johnson v. Commonwealthl56 a statutory burglary had occurred some-

time between the hours of 10:00 P.M. and 7:00 A.M. on March 16-17, 1967.
Defendant offered alibi evidence for the time between 8:45 P.M. and 11:00
P.M. and between 11:30 P.M. and 5:45 A.M., but he introduced no
evidence to establish his whereabouts during the other time in which the
crime could have occurred. Accordingly, the judge refused two alibi in-
structions offered by the defendant, and the jury returned a verdict of
guilty. On appeal, the Court of Appeals affirmed on the ground that de-
fendant's evidence was legally insufficient to make out a defense of alibi.
Since an alibi defense seeks to prove the impossibility of defendant's
guilt,'57 most jurisdictions require alibi evidence to cover the entire period
of time in which the crime could have been committed,'58 although a few
states hold that an alibi instruction should be given if defendant's testimony
is sufficient to create a reasonable doubt in the minds of the jury.'59 After
reviewing the authorities of other jurisdictions, the Virginia Court adopted
the majority view.
It is difficult to see how either the Commonwealth or the defendant would
have been prejudiced by either a grant or a denial of the alibi instructions
in Johnson since the requested charge to the jury amounted to little more
than the standard "reasonable doubt" instruction.160 Since defendant's evi-
155 VA. CODE ANN. ? 18.1-365 (Supp. 1968) (emphasis added).

156 210 Va. 16, 168 S.E.2d 97 (1969).
157 E.g., State v. Hunter, 102 Ariz. 472, 433 P.2d 22 (1967); State v. Ovitt, 126 Vt.
320, 229 A.2d 237 (1967); State v. Malpass, 266 N.C. 753, 147 S.E.2d 180 (1966).
158 E.g., State v. Green, 268 N.C. 690, 151 S.E.2d 606 (1966); People v. Todaro, 14
Ill. 2d 594, 153 N.E.2d 563 (1958); People v. Lucas, 16 Cal. 2d 178, 105 P.2d 102 (1940);
People v. Verrett, 53 111. App. 2d 18, 202 N.E.2d 359 (1964); Jones v. State, 128 So. 2d
754 (Fla. Dist. Ct. App. 1961); Cook v. State, 345 P.2d 902 (Okla. Crim. Ct. App. 1958).
159E.g., People v. Perry, 277 N.Y. 460, 14 N.E.2d 793 (1938); State v. Friend, 100
W. Va. 180, 130 S.E. 102 (1925); Washburn v. State, 167 Tex. Crim. 125, 318 S.W.2d
627 (1958), cert. denied, 359 U.S. 965 (1959); State v. Payne, 104 Ohio App. 410, 149
N.E.2d 583 (1957).
16The following instructions were offered by defendant:
The court instructs the jury that the evidence introduced by the defendant
that he was not at the scene of the alleged crime need not be such as to establish
this as a fact in order to entitle him to an acquittal; but if it is such as to create
and leave in the mind of the jury a reasonable doubt of his presence there, then
you shall find the defendant not guilty.
The court instructs the jury that where the Commonwealth has established a
dence of his location at the time the offense was committed is admissible for
the purpose of establishing a reasonable doubt that he is guilty, the "reason-
able doubt" instruction should provide him with adequate protection. Thus,
the Court's analysis of the technical elements of alibi was unnecessary; it
could have reached the same result by noting that another instruction stated
the essence of defendant's request.
In Blevins v. Conmmonwealth'6l defendant and four other intoxicated
teen-agers were accused of brutally beating a man to death. Defendant
claimed that shortly after the scuffle began, he left the fight while one or
more of the other boys continued to beat the victim until he died. The
thrust of the defense was that defendant effectively "abandoned the con-
flict" and did not act in concert with the others in causing the victim's death.
Pursuant to this defense, the trial judge instructed the jury that if it found
that Blevins abandoned further conflict, and thereafter someone else,

other than the defendant, inflicted the wounds which caused the death
of Greer F. Holyfield, and that the defendant did not by concert of
action with such other person or persons or by aiding or abetting them,
. . . then the jury cannot find the defendant guilty in this case.162
After brief deliberation, the jury requested clarification of the instruction,

feeling that it conflicted with another instruction which stated
that if there is concert of action with the resulting crime one of its
incidental probable consequences, then whether such crime was origi-
nally contemplated or not, all who participate in any way in bringing
it about are equally answerable and bound by acts of every other
person connected with consummation of such resulting crime.163
In response, the judge substituted the words "had not acted" for "did
not" in the abandonment instruction. When defendant was then found
guilty, he appealed, claiming that the amended instruction deprived him of
the abandonment defense. The Court of Appeals found that the phrase "had
not acted by concert of action" referred to defendant's relation to the person
who administered the fatal blows "when that other person administered the
fatal blows, and it carrys [sic] no implication, as Blevins argues, that the
prima facie case and the defendant relies upon the defense of alibi, the burden
is upon him to prove it, not beyond a reasonable doubt nor by a preponderance
of the evidence but by such evidence and to such a degree of certainty as will,
when the whole evidence is considered, create and leave in the mind of the jury
a reasonable doubt as to the guilt of the defendant.
210 Va. at 17-18, 168 S.E.2d at 98.
161 209 Va. 622, 166 S.E.2d 325 (1969).
162 Id. at 627, 166 S.E.2d at 329 (emphasis added).
163 Id. at 627 n.2, 166 S.E.2d at 329 n.2.
1608 Virginia Law Review
concert of action could be 'at any time.'" 164 Accordingly, the Court held
that although the amended instruction was not skillfully drawn, it stated
the law with acceptable accuracy.
When the jury asked for clarification, the sole amendment to the instruc-
tions was a shift from the past tense to the past perfect tense of the verb
"to act." Under accepted English usage, the past perfect tense refers to an
action or state of being completed in the past.165 In the context of the
abandonment instruction, "had not acted" would refer to a "concert of
action" completed before the time the fatal blows were delivered. Even if
the jury was not composed of strict grammarians, the isolated change of
tense of a single verb would instruct them that the relevant time frame for
determining guilt by concert of action extended further into the past than
they originally had imagined. Since, as defendant argued, this completely
negated the abandonment defense, Blevins appears to have been erroneously
decided.
164 Id. at 628, 166 S.E.2d at 330.

166 L. MYERS, GUIDE TO AMERICAN ENGLISH 419 (3d ed. 1962).

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Criminal Law and Procedure

CRIMINAL LAW AND PROCEDURE

RIGHTS OF THE ACCUSED

Right to Counsel and Assistance in Trial Preparation

An accused has a well-established constitutional right to counsel at all

A more serious problem, however, is the extent to which a state must

There is lacking that equality demanded by the Fourteenth Amend-

However, Douglas should not be read to demand absolute equality between

a State can, consistently with the Fourteenth Amendment, provide

trial psychiatric examination, the medical expert

one or more physicians skilled in the diagnosis

Since the defense attorney is given access to the

Would the defendant then be entitled to furth

22 Statutes of at least thirty-one states, including Virginia, were enacted as a general

Griffin v. Illinois,32 has recently held that an ind

So long as this system of repeated hearings exi

One of the most common allegations in indigents' habeas corpus petitions

38 351 F.2d 905 (4th Cir. 1965).

These deplorable practices are inherently prejudicial, and a mere

THE GUILT DETERMINING PROCESS

In Cardwell v. Commonwealth47 the Supreme Court of Appeals con-

44 372 F.2d 670 (4th Cir. 1967).

ing statement to an interrogating officer was admitted to impeach defendant's

before a federal constitutional error can be held harmless, the court

57 Id. at 667-68, 166 S.E.2d at 229.

was whether the identification "was so unnecessarily suggestive and con-

65 209 Va. 399, 164 S.E.2d 642 (1968).

on the other hand, objective line-up procedur

In Cassidy v. Peyton,72 another habeas corpus case, the Supreme Court of

may be termed procedural in the sense that it is one of the steps to be

Under the facts presented in Cassidy it is difficult to gainsay the Court's

72 210 Va. 80, 168 S.E.2d 125 (1969).

realizing that he can avoid a heavy sentence by appealing or petitioning for

should not be read to require that a trial be h

[n]o person shall be arrested, prosecuted or convicted for ... [impaired

in the de novo proceeding without a crime for which defendant could be

just as the city wanted the option of convicting petitioner of either

Record, "due process" and "equal protection of

related, offense involving the same elements as the c

Search and Seizure

the magistrate must be informed of some of the underlying circum-

In a similar case decided during the Survey period, Wiles v. Common-

104 283 F. Supp. at 449.

112 Id. at 286, 163 S.E.2d at 598.

lot, where the following morning it was searched without a warrant.

It would be unreasonable to hold that the police, having to retain the

Although the outcome in Carter can be justified,124 the alternate holding

a contemporaneous search would have been permissible to seize weapons

these justifications are absent where a search is remote in time or place

126 Id. at 367.

In Harmon v. Commonwealth'36 the jury found defendant guilty of mak-

131 339 U.S. 56 (1950).

132 See Chimel v. California, 395 U.S. 752, 760 (1969).

amendment of the verdict did not constitute reversible error138 although it

Sentencing by the Court

In May v. Peyton,'44 decided during the

SUBSTANTIVE CRIMINAL LAW

Chesapeake'49 defendant was convicted under a

In reversing defendant's conviction for carrying loaded guns in his truck