11.7 Verdict and Post-verdict Motions

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.7 VERDICT AND POST-VERDICT MOTIONS

11.701 Verdict.

A. In General. In all criminal prosecutions, the verdict must be unanimous, in writing, signed by the foreperson, and returned by the jury in open court. ³⁵² A unanimous verdict is a constitutional requirement. ³⁵³ A juror may withdraw his or her consent to the verdict at any time before the jury is discharged. The Virginia Code also provides that "[n]o person shall be convicted of a felony, unless by his confession of guilt in court, or by his plea, or by the verdict of a jury, accepted and recorded by the court, or by judgment of the court trying the case without a jury according to law." ³⁵⁴ After conviction, the defendant technically remains "charged" with an offense until sentenced. ³⁵⁵

B. Joint Trial of Multiple Defendants. When two or more persons are charged and tried jointly, the jury may render a verdict as to any of them about whom they agree, and judgments must be entered according to the verdict. As to the others, on which there is no agreement, the case must be tried by another jury. ³⁵⁶

C. Multiple Counts. The accused should move to strike faulty counts from the indictment or move the court to instruct the jury to disregard them. If the accused does neither and a general verdict of guilty is found, judgment will be entered against the accused if there is a good count in the indictment despite the faulty counts. However, this result should not be reached where the court can see plainly that the verdict could not have been found on the good count. ³⁵⁷ Section 19.2-291 states that a jury's general verdict must be set aside if the accused's demurrer or motion to instruct the jury to disregard the faulty count has been overruled but it is not clear on which count of the indictment the verdict was founded after the jury has been discharged. However, if it is obvious that the jury's verdict could not have been found on the bad count, the verdict must be allowed to stand. ³⁵⁸

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D. Acquittal by Reason of Insanity. When the defense asserts an insanity defense, the jurors must be instructed that if they acquit on that ground they are required to state that fact with their verdict. Upon such acquittal, the court must follow the process and procedures outlined in the Virginia Code to have the defendant evaluated by Behavioral Health and Developmental Services and to provide the appropriate treatment. ³⁵⁹

E. Inconsistent Verdicts. The fact that verdicts may, on their face, be inconsistent is not a basis for reversal of the convictions, if the evidence is sufficient to support each verdict. Jury verdicts may appear inconsistent because the jury has elected, through mistake, compromise, or leniency, to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another offense. ³⁶⁰ The general rule that apparently inconsistent verdicts will be upheld when supported by sufficient evidence does not apply to bench trials, because the justifications for inconsistent verdicts by a jury do not exist in bench trials. ³⁶¹ Although inconsistent bench trial verdicts are normally not permitted, they will be sustained if the trial judge has explained the verdicts on the record and the explanation shows that the action was proper and not unfair. ³⁶²

F. Lesser-Included Offenses.

1. In General. The accused may be found not guilty of the offense charged but guilty of an offense, or of an attempt to commit an offense, that is substantially charged or necessarily included in the charge against the accused. ³⁶³ For example, in a prosecution for grand larceny, if the jury finds that the thing stolen is worth less than $200, it may find the accused guilty of petit larceny. ³⁶⁴ When the offense charged is a felony, the accused may be found not guilty of the charge offense but guilty of being an accessory after the fact to that felony. ³⁶⁵

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When, upon motion of the defendant, a trial judge sets aside a jury verdict on the ground of insufficient evidence, the judge cannot sua sponte find the defendant guilty of a necessarily included lesser offense without violating the defendant's right to a jury trial. ³⁶⁶

2. Effect of Acquittal or Partial Acquittal. If a person indicted for a felony is acquitted by the jury of part of the offense charged, he or she must be sentenced for the part of which he or she is convicted. If the verdict is set aside and a new trial granted, the accused must not be tried for any higher offense than that of which he or she was convicted at the last trial. ³⁶⁷ On an indictment for a felony, a general verdict of not guilty is a bar to a subsequent proceeding for an attempt to commit such felony or of being an accessory thereto. ³⁶⁸

G. Deferral of Judgment. Traditionally, circuit courts in Virginia have exercised jurisdiction to take certain criminal matters "under advisement" pending the defendant's successful execution of certain terms. Cases are often dismissed or reduced to a particular result pursuant either to a plea agreement or to the trial court's later sentencing ruling. In 2008, the Virginia Supreme Court considered an arguably lesser exercise of jurisdiction but one most practitioners treat as quasi-synonymous, that of deferring judgment in certain cases upon such terms, if not expressly taking judgment under advisement. The court's holding in Moreau v. Fuller ³⁶⁹ supports the conclusion that circuit court judges possess such discretion, despite no specific grant of particular authority from the General Assembly.

In Moreau, the trial court had taken a case involving criminal charges under advisement for deferred disposition, and the Commonwealth filed a civil writ of mandamus to force the court to immediately make a final disposition in the case. The court ultimately denied the writ, ruling that upon hearing the evidence in the criminal proceeding, "it was within the inherent authority of the court to 'take the matter under advisement' or 'continue the case for disposition' at a later date." ³⁷⁰ The court held "that the act of rendering judgment is within the inherent power of the court and that the very essence of adjudication and entry of judgment by a judge involves discretionary

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power of the court," ³⁷¹ implying that a court has the discretion to defer judgment under appropriate circumstances. Those practices involve the essence of rendering judgment. No one contends that the judge must immediately render judgment upon the instant that the presentation of evidence has been concluded. ³⁷² While such a case is pending, the court has statutory authority to continue bail requirements. ³⁷³

In Hernandez v. Commonwealth (Hernandez I), ³⁷⁴ at the conclusion of the evidence at a bench trial, defense counsel, citing Moreau, moved the court to defer disposition of the case for a period to be fixed by the court, to continue the defendant's bond in effect for that period, subject to such conditions as the court might prescribe, and at the end of that period to consider dismissal of the case in lieu of a conviction if the defendant complied with all the prescribed conditions. The attorney for the Commonwealth did not agree. The court stated from the bench that the evidence was sufficient to support a finding of guilt and held that even though the case might be an appropriate one for a deferred disposition, the court did not have inherent authority to do so. The court imposed a sentence. The Court of Appeals granted Hernandez an appeal limited to the question whether the trial court erred in concluding that it lacked inherent authority to continue the defendant's case for future determination. The Court of Appeals affirmed the judgment, holding that the circuit court had neither statutory nor inherent authority to defer disposition of the case.

The Supreme Court of Virginia granted Hernandez ³⁷⁵ an appeal on the single issue of whether the Court of Appeals erred in concluding that the trial court lacked inherent authority to defer judgment "upon terms contemplating a future dismissal of criminal charges." The Court concurred with the Court of Appeals to the extent that "once a court has entered a judgment of conviction of a crime, the question of the penalty to be imposed is entirely within the province of the legislature, and the court has no inherent authority to depart from the range of punishment legislatively prescribed." ³⁷⁶ The court amplified its ruling to reverse the Court of Appeals and hold that "the

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mere statement by a judge that the evidence was sufficient to support a conviction" is insufficient to amount to a...