Commonwealth v. McBride

• Court: Supreme Court of Virginia
• Decided: October 19, 2023
• Docket: 220715
• Status: Published

Opinion

PRESENT: All the Justices

COMMONWEALTH OF VIRGINIA OPINION BY v. Record No. 220715 JUSTICE STEPHEN R. McCULLOUGH October 19, 2023 DANJUAN ANTONIO McBRIDE

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal presents the question of whether Rule 3A:15 or the Double Jeopardy

Clause restricts a trial court’s authority to reconsider a motion to strike that the court

erroneously granted. We conclude that Rule 3A:15 does not preclude the court from

reconsidering a motion to strike that was erroneously granted. As for the Double Jeopardy

Clause, it certainly imposes some limitations on a trial court’s authority to reconsider a motion

to strike. Those limitations, however, do not apply here. Consequently, we reverse the

judgment of the Court of Appeals.

BACKGROUND

Danjuan Antonio McBride was indicted for possession of cocaine with the intent to

distribute, third or subsequent offense, and possession of heroin and Furanylfentanyl1 with the

intent to distribute, third or subsequent offense. Before trial, the Commonwealth filed a

motion disclosing its intention to introduce into evidence prior convictions from Baltimore,

Maryland. It sought a pretrial ruling that these convictions were admissible.

At a hearing on the motion, the Commonwealth explained that it requested records

from Maryland to establish the defendant’s prior convictions, and, in response, it received a

1 Furanylfentanyl is a derivative of the synthetic opioid, Fentanyl. Fentanyl is 80 to 100 times more potent than morphine, and Furanylfentanyl is slightly less potent than Fentanyl. Commonwealth v. Mulkin, 228 A.3d 913, 915 n.5 (Pa. Super. Ct. 2020). disc with approximately 250 pages. The disc was certified by the Maryland State Archives.

Defense counsel objected on a number of grounds. The circuit court ruled that the documents

were admissible, concluding that they were properly authenticated under Virginia law. The

Commonwealth observed that “I just want to make sure that I can introduce additional

documents to the jury if there’s a question about this being a different person.” The circuit

court responded, “I guess we will see what comes up.”

At a jury trial, the Commonwealth introduced the records into evidence. After the

Commonwealth rested, McBride made a motion to strike the evidence, arguing among other

things that the Commonwealth failed to establish qualifying prior offenses because the

evidence did not prove that the defendant was the person listed on the Maryland records.

Defense counsel pointed out that the records were not consistent on a birth date, and in places

listed a different name. The records sometimes list “Tony Brown” as an alias for Danjuan

McBride, while another record identifies Tony Brown as the defendant. Some records list

McBride’s birthdate as March 7, 1979, whereas other records list a birthdate of March 7,

1980. The Commonwealth responded that the defendant’s name was somewhat unique and

that the records contained additional identifiers that linked them to the defendant. In addition,

the Commonwealth contended that the discrepancy on the birthdate in the records appeared to

be a typographical error, and that the defendant’s use of an alias did not change the fact that

he was the person identified by the Maryland records.

The circuit court stated that it would grant the motion to strike with respect to whether

the Commonwealth had established the defendant’s two prior convictions. The

Commonwealth immediately responded that it had a “strong exception to that ruling.” It

argued that it had relied on the trial court’s pre-trial ruling that connected the Maryland

2 records to the defendant, that the admissibility of the records was an issue for the court rather

than the jury, and that the records would not be admissible into evidence unless they were

sufficient to raise a jury question about the defendant’s identity as the person who was

convicted of the prior offenses in Maryland. The Commonwealth noted that it could not

introduce McBride’s entire criminal record, but that additional records would further establish

that McBride was the person identified in the Maryland records. The court then stated that it

would allow the prosecution to reopen its case to address the issue. Defense counsel objected.

The Commonwealth proceeded to introduce an additional court record – a

recognizance form from Fairfax County that contained the same address as the address listed

on the Maryland records. The prosecution then rested. The circuit court explained that there

appeared to be a “genuine misunderstanding” about the prior records. The court then stated

that it was reversing itself on the motion to strike, reasoning that there was sufficient evidence

in the Maryland records for the jury to conclude that the defendant was the person listed in

those records. At that point, the defendant had not presented any evidence or taken any other

steps such as releasing witnesses.

The jury found the defendant guilty of both charges.

McBride appealed to the Court of Appeals. By published opinion, a panel of that court

reversed the convictions. The Court of Appeals concluded that, once a court grants a motion

to strike, Rule 3A:15 requires the court to enter an order of acquittal and the court is

foreclosed from reconsidering its decision. McBride v. Commonwealth, 75 Va. App. 556,

572-77 (2022). We awarded the Commonwealth an appeal from this decision.

3 ANALYSIS

I. RULE 3A:15 DOES NOT PREVENT A COURT FROM RECONSIDERING ITS RULING ON A MOTION TO STRIKE.

We review the Court of Appeals’ interpretation of the rules of this Court de novo.

LaCava v. Commonwealth, 283 Va. 465, 471 (2012). At the time of McBride’s trial, Rule

3A:15 provided in relevant part:

Motion to Strike Evidence. – After the Commonwealth has rested its case or at the conclusion of all the evidence, the court on motion of the accused may strike the Commonwealth’s evidence if the evidence is insufficient as a matter of law to sustain a conviction . . . . ....

Judgment of Acquittal or New Trial. – The court shall enter a judgment of acquittal if it strikes the evidence or sets aside the verdict because the evidence is insufficient as a matter of law to sustain a conviction. The court shall grant a new trial if it sets aside the verdict for any other reason. 2

In construing this rule, we note that courts commonly consider background principles

when interpreting rules or statutes, even if those principles are not mentioned in the rule or

statute. To cite but a few examples, we rely on the rule of lenity when interpreting a criminal

statute, even though the statute does not mention the rule. Morgan v. Commonwealth, 301

Va. 476, 483 (2022). We presume that the legislature did not repeal a statute by implication.

Sexton v. Cornett, 271 Va. 251, 257 (2006). We also presume that a statute is not to be given

retroactive effect “unless a contrary legislative intent is manifest.” Berner v. Mills, 265 Va.

408, 413 (2003). And we examine a local government’s powers to enact an ordinance through

2 After McBride’s trial, this Court amended a number of rules, including Rule 3A:15, to replace the word “shall” with the word “must” as part of an effort to clarify the use of the word “shall.” The change was intended as a clarifying amendment and does not alter the meaning of the rules.

4 the lens of Dillon’s Rule. City of Richmond v. Confrere Club of Richmond, Virginia, Inc., 239

Va. 77, 79-80 (1990).

One of these background principles is the recognized authority of a court to reconsider

an erroneous or flawed decision. Lewis v. Commonwealth, 295 Va. 454, 467 n.3 (2018) (trial

court may reconsider its judgment of conviction “as it may reconsider any ruling” provided

that it does so within the time permitted by the rules); see also Everett v. Tawes, 298 Va. 25,

35 (2019) (noting the power of a court to correct interlocutory orders). The power to

reconsider is often described as an inherent power of a court. The United States Supreme

Court has observed that “[i]t is a power inherent in every court of justice so long as it retains

control of the subject-matter and of the parties, to correct that which has been wrongfully

done by virtue of its process.” United States v. Morgan, 307 U.S. 183, 197 (1939) (cleaned

up). 3 The power to decide carries with it the power to reconsider as a necessary adjunct. That

power, of course, can be constrained by rules or statutes that limit its timing or scope.

Rules of evidence and procedure commonly instruct a court that it must do something.

Those rules are almost always silent about a court’s ability to reconsider. The power to

reconsider nevertheless remains present, even if it is not mentioned in the text of the rule.

3 State courts have echoed this view of judicial power. See, e.g., Steele v. Stonington, 622 A.2d 551, 553 n.4 (Conn. 1993) (“[I]t is the inherent authority of every court, as long as it retains jurisdiction, to reconsider a prior ruling . . . . If a court is not convinced that its initial ruling is correct, then in the interests of justice it should reconsider the order, provided it retains jurisdiction over the subject matter and the parties.”); People v. Mink, 565 N.E.2d 975, 978 (Ill. 1990) (“A court in a criminal case has inherent power to reconsider and correct its own rulings, even in the absence of a statute or rule granting it such authority.”); Melnick v. State Farm Mut. Auto. Ins. Co., 749 P.2d 1105, 1107 (N.M. 1988) (a trial court “has the inherent authority to reconsider its interlocutory orders, and it is not the duty of the trial court to perpetuate error when it realizes it has mistakenly ruled”); State v. Davis, 991 N.W.2d 491, 498 (Wis. 2023) (“[I]t is firmly established in Wisconsin law that a circuit court has the inherent authority to reconsider its own rulings during ongoing proceedings.”).

5 Rule 3A:15 is typical of our rules in that it instructs a court to take a particular action

without expressly addressing the power of a court to reconsider. The language of Rule 3A:15,

which provides that a court “must enter a judgment of acquittal if it strikes the evidence,”

presupposes a final decision granting a motion to strike, not an initial ruling that the court then

reconsiders. A court may misspeak, or it may misapprehend the law or the evidence, and on

that basis render a flawed ruling on a motion to strike. When a court has concluded that its

earlier ruling on a motion to strike was erroneous or flawed, it may timely reconsider its

decision to grant (or deny) a motion to strike, just as it may reconsider other decisions.

The language of the Rule requiring a court to enter an order of acquittal flows from

principles of Double Jeopardy. “[I]n pleading double jeopardy, the burden is on the defendant

to establish the identity of the offenses.” Low v. Commonwealth, 11 Va. App. 48, 50 (1990).

Ordinarily, a defendant will meet this burden by producing “the record or transcript of the

initial trial.” Id. Transcripts are not always prepared, particularly if the defendant pleads

guilty. Orders of the court, however, are preserved. See Code § 17.1-124 (addressing circuit

court order books); Code § 16.1-69.55 (addressing general district court retention of records).

The requirement of Rule 3A:15 that a court “shall enter a judgment of acquittal if it strikes the

evidence reflecting the judgment of acquittal” ensures an accurate record and thus protects a

defendant from future jeopardy. It is not meant to cabin the discretion of a judge to promptly

reconsider an erroneously granted motion to strike.

It is settled law in Virginia that an order is final when it “disposes of the entire action

and leaves nothing to be done except the ministerial superintendence of execution of the

judgment.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002); see also

Rule 1:1(b) (“Unless otherwise provided by rule or statute, a judgment, order, or decree is

6 final if it disposes of the entire matter before the court, including all claim(s) and all cause(s)

of action against all parties, gives all the relief contemplated, and leaves nothing to be done by

the court except the ministerial execution of the court’s judgment, order, or decree.”). A

verbal pronouncement from the bench granting a motion to strike is not a final judgement

under this longstanding definition. Moreover, under Rule 1:1(a):

All final judgments, orders, and decrees, irrespective of terms of court, remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer . . . . The date of entry of any final judgment, order, or decree is the date it is signed by the judge either on paper or by electronic means in accord with Rule 1:17.

If a trial court can modify, within time limits, a final order, a fortiori it can modify a non-final

verbal pronouncement from the bench.

In short, Rule 3A:15 does not preclude a trial court from timely reconsidering a motion

to strike. Furthermore, here the trial court could exercise its discretion to permit the

Commonwealth to introduce additional evidence concerning the Maryland court records. See,

e.g., Hargraves v. Commonwealth, 219 Va. 604, 608 (1978).

Unlike Rule 3A:15, however, the Double Jeopardy Clause does impose restrictions on

a court’s authority to revisit a granted motion to strike. We turn to that question next.

II. THE DOUBLE JEOPARDY CLAUSE RESTRICTS A COURT’S AUTHORITY TO RECONSIDER A MOTION TO STRIKE BUT THOSE STRICTURES ARE NOT IMPLICATED HERE.

Both the United States Constitution and the Constitution of Virginia contain a Double

Jeopardy Clause. U.S. Const., amend. V; Va. Const., art. I, § 8. 4 The Double Jeopardy

Clause “protects against a second prosecution for the same offense after acquittal; it protects

4 The scope of the Double Jeopardy provision of the Constitution of Virginia is not at issue in this case.

7 against a second prosecution for the same offense after conviction; and it protects against

multiple punishments for the same offense.” Stephens v. Commonwealth, 263 Va. 58, 62

(2002) (cleaned up and citations omitted). The Clause prevents “the State with all its

resources and power” from making “repeated attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that

even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 188

(1957).

The United States Supreme Court addressed the question of a court’s power to revisit

an earlier decision to acquit in Smith v. Massachusetts, 543 U.S. 462 (2005). In Smith, after

the prosecution had presented its evidence, a Massachusetts court originally granted a motion

for an acquittal on one particular charge. Id. at 465. At that point, “[t]he prosecutor did not

make or reserve a motion for reconsideration, or seek a continuance that would allow him to

provide the court with favorable authority.” Id. at 470. The defense then presented its case on

the defendant’s other charges and rested. Id. at 465. Afterwards, during a recess that occurred

before closing arguments, the prosecution presented the court with additional authority

showing that the court had erred in granting the motion for acquittal on the particular charge

that had been dismissed. Id. The trial court reversed its judgment of acquittal on that charge

and the jury convicted the defendant on that charge. Id.

In determining whether the trial court’s reconsideration of its earlier acquittal violated

the prohibition against double jeopardy, the Supreme Court concluded that, under

Massachusetts law, the court’s ruling granting the motion for acquittal was final, i.e., the trial

court could not, as a matter of state law, reconsider its decision to grant the motion for

8 acquittal. Id. at 470. The Court acknowledged that “state law may prescribe that a judge’s

midtrial determination of the sufficiency of the State’s proof can be reconsidered.” Id. The

Court further explained that the Double Jeopardy Clause forecloses reconsideration of a

motion for acquittal when the defendant has suffered the possibility of prejudice. Id. at

471-72. The possibility of prejudice existed in Smith because the defendant had presented his

evidence. Id.

The Supreme Court in Smith was closely divided. A four Justice dissent, authored by

Justice Ginsburg, argued that the defendant’s double jeopardy rights were not violated by the

trial court’s decision to reconsider. Id. at 475-80. Regardless of this disagreement, however,

as the dissent noted, the majority and the dissent unanimously agreed that the Double

Jeopardy Clause does not “bar the States from allowing trial judges to reconsider a midtrial

grant of a motion to acquit on one or more but fewer than all counts of an indictment.” Id. at

475. There was also no dispute between the majority and the dissent that “[a] State may

provide for such reconsideration . . . by legislation or by judicial rule, common-law decision,

or exercise of supervisory power.” Id.

In this instance, Virginia law allows a trial court to reconsider a previously granted

motion to strike. Under Virginia law, the circuit court’s verbal pronouncement to grant the

motion to strike was not final. The circuit court retained the authority to revisit its earlier

ruling, so long as doing so did not offend Double Jeopardy. Moreover, the prosecution here

did what the prosecution in Smith had not done, which is to immediately object to the trial

court’s decision to grant the motion to strike. In this case, the trial court promptly reversed

itself, before the defendant presented any evidence or released any of its witnesses, further

distinguishing this case from Smith. The double jeopardy bar does not apply here.

9 Evans v. Michigan, 568 U.S. 313 (2013), cited by the defendant, does not compel a

different outcome. The issue in that case was “whether retrial is barred when a trial court

grants an acquittal because the prosecution had failed to prove an ‘element’ of the offense

that, in actuality, it did not have to prove.” Id. at 317. The United States Supreme Court

answered that question in the affirmative, holding that once a court enters a judgment of

acquittal, even on a flawed legal basis, the defendant cannot be retried. Id. at 330. The Court

explained that its decision was rooted in existing precedent. The Court expressly declined the

invitation to revisit past precedent, including its prior decision in Smith v. Massachusetts. See

Evans, 568 U.S. at 318, 327-28. In the case before us, the defendant is not being subjected to

a retrial. Rather, the issue before us involves the power of a trial court, as a matter of state

law, to revisit an erroneous resolution of a motion to strike and at what point such a

reconsidered ruling might offend Double Jeopardy. Evans does not purport to address that

issue because it was not before the Court. Instead, Smith v. Massachusetts provides the rule of

decision on the double jeopardy aspect of this case.

In the present case, the trial court promptly reconsidered its granting of a motion to

strike, and it did so before the defendant presented any evidence or altered his strategy by, for

example, releasing witnesses. Consequently, the defendant suffered no Double Jeopardy

violation. 5

5 Other courts have reached this conclusion. See United States v. Hill, 643 F.3d 807, 865-67 (11th Cir. 2011) (holding that jeopardy did not attach when the district court orally granted a motion for judgment of acquittal and then reversed its ruling after a lunch break); Quintanilla v. State, 496 S.W.3d 861, 867 (Tex. Ct. App. 2016) (“Because the trial court reconsidered its oral ruling and denied the motion for directed verdict before any further trial proceedings took place, we conclude that no double-jeopardy violation occurred.”).

10 CONCLUSION

For the foregoing reasons, the judgment of the Court of Appeals is reversed, and final

judgment is entered for the Commonwealth.

Reversed and final judgment.