Dorsey v. Commonwealth

526 S.E.2d 787, 32 Va. App. 154, 2000 Va. App. LEXIS 254
CourtCourt of Appeals of Virginia
DecidedApril 4, 2000
Docket1543984
StatusPublished
Cited by11 cases

This text of 526 S.E.2d 787 (Dorsey v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorsey v. Commonwealth, 526 S.E.2d 787, 32 Va. App. 154, 2000 Va. App. LEXIS 254 (Va. Ct. App. 2000).

Opinions

FITZPATRICK, Chief Judge.

Leroy Dorsey (appellant) was convicted in a jury trial of robbery, in violation of Code § 18.2-58, and the use of a firearm in the commission of robbery, in violation of Code § 18.2-53.1. On appeal, he contends that: (1) his conviction violated the Double Jeopardy Clause of the United States Constitution; (2) he was denied due process when the trial court revoked his bail; (3) the trial court erroneously failed to defer to previous judicial determinations admitting him to bail; and (4) the trial court lacked authority to order his bail revoked. For the following reasons, we affirm.

I. Background

On August 7, 1997, appellant was arrested for robbing Danny Neil and later released by a magistrate on $10,000 bail, which, on August 11, 1997, was reduced to $3,000. Only one robbery charge was certified to the grand jury and appellant’s bail was continued. On September 15, the grand jury, indicted appellant on the robbery charge and returned a direct [158]*158indictment for using a firearm in the commission of the robbery.

On October 10, 1997, the Commonwealth filed a motion to join the trials of appellant and his codefendant, Alfred Dearing (Dearing). At the joinder hearing on October 23, 1997, the Commonwealth presented evidence that appellant had participated with Dearing in two armed robberies on or about August 7, 1997, including the one with which appellant was charged. According to Detective Paul Larson, appellant “came from Maryland to Virginia to commit a robbery with his cousin.” Larson testified as follows:

A. ... He told us that earlier before the robbery in Arlington that they had done another robbery or had another incident. I couldn’t identify exactly where. But through a report in Alexandria, an earlier robbery happened in Alexandria with the same circumstances.
Q. And with respect to the robbery that occurred in Arlington, what did the defendant Mr. Dorsey tell you what [sic] happened in that robbery?
A. He said that they had driven up next to the victim who was walking down Kenmore Street, the 1900 block of Kenmore Street, where Mr. Dearing pointed the gun at the victim and demanded money.
The victim didn’t have any, so they ended up taking a gold chain from around the victim’s neck and then leaving the scene.
******
Q. At the time that the Arlington robbery occurred, did Mr. Dorsey tell you where he was in the car?
A. Yes. He said he was the driver of the car.

After argument by both parties, the trial court granted the Commonwealth’s request for a joint trial. Additionally, the trial court, sua sponte, revoked appellant’s bail, explaining:

I think [appellant and Dearing] are a danger to this community. And I am presuming them to be innocent. The jury can find them innocent or not guilty. But on the evidence [159]*159that I heard, riding around and pointing a gun, they are a danger. More than once in fact.

(Emphasis added). The following week, appellant filed a “Notice and Motion to Re-Admit Defendant to Bail” and requested a hearing on the motion. At the October 27, 1997 bail hearing, the Commonwealth noted that appellant had not been arraigned on the firearm charge for which he had been directly indicted. The Commonwealth asked that no bail be set for that charge. The trial court agreed, denied the motion for bail on the firearm charge, and denied the motion to readmit appellant to bail on the robbery charge, stating:

Counsel, I don’t have any problem with either of the defendant’s [sic] appearance in court. They’re here when they’re supposed to be.
My problem is the danger they represent to the community. And I have ample evidence brought to my attention as a result of the [joinder] hearing that they are a danger.
Now, if able counsel, and I have no doubt that they can certainly try and may be successful, can convince a jury that they didn’t do it, that’s fine. But that’s for [defense counsel] to deal with the jury.
But insofar as I’m concerned, my responsibility, in part, is to decide whether or not these two individuals represent a clear, present danger to this community. And I say they do.
Now, if the jury says they’re not guilty, fine. But until that happens, they’re not going to be riding around out on the street, pull up to people and pulling guns and robbing. No way.

(Emphasis added).

On January 15, 1998, approximately two and one-half months after the bond hearing, appellant filed a motion to recuse the trial judge, arguing that “impartiality in this case could be called into question, given [the trial court’s] statement that ... [appellant] was a danger to the community.” The trial court denied the motion to recuse, stating:

[160]*160[The motion denying bail] was made because in this Court’s opinion, these two individuals represented a danger to the community. If they’re acquitted, I apologize. But I’m not going to run the risk that [the defendants are] going to go out and hurt somebody pending the trial. And that’s that.

At the January 15, 1998 motions hearing, appellant also filed a “Plea of Former Jeopardy,” arguing that revocation of his bail violated due process and that trial on these charges violated the double jeopardy prohibition. The trial court denied appellant’s double jeopardy challenge.

Appellant appealed neither the denial of bail on the firearm charge nor the revocation of his bail on the robbery charge. Appellant was tried by jury and convicted of robbery and the use of a firearm in the commission of the robbery.

II. Double Jeopardy

Appellant contends he was subjected to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment. He argues that the revocation of his bail constituted “punishment” and, thus, his subsequent trial on the substantive charges was constitutionally impermissible. We disagree.

The Fifth Amendment to the United States Constitution states that no “person [shall] be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Double Jeopardy Clause provides three distinct protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); see Shears v. Commonwealth, 23 Va.App. 394, 400, 477 S.E.2d 309, 312 (1996). By its terms, the Double Jeopardy Clause “applies only if there has been some event ... which terminates the original jeopardy.” Richardson v. United States, 468 U.S. 317, 325, 104 S.Ct. 3081, [161]*1613086, 82 L.Ed.2d 242 (1984).

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Dorsey v. Commonwealth
526 S.E.2d 787 (Court of Appeals of Virginia, 2000)

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Bluebook (online)
526 S.E.2d 787, 32 Va. App. 154, 2000 Va. App. LEXIS 254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorsey-v-commonwealth-vactapp-2000.