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Tag Archives: Criminal Practice

Criminal Practice – Child Pornography – Sentencing – Restitution – Insufficient Findings (access required)

U.S. v. Burgess The 4th Circuit affirms defendant’s conviction of receipt and possession of child pornography, but vacates a restitution order requiring defendant to pay $305,220 to “Vicki,” an identified victim; the district court did not make specific findings regarding the elements of restitution, as required under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. 2259, and the case is remanded for calculation of the loss this specific defendant caused the victim portrayed in the pornographic material possessed by defendant.

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Criminal Practice – Sentencing – Parole – Manslaughter – Domestic Violence Victim – Mutual Violence (access required)

State v. Hawes Even though evidence of mutual violence between defendant and his wife weighs against application of S.C. Code Ann. § 16-25-90 (early parole eligibility for a domestic violence victim convicted of an offense against the perpetrator of the domestic violence), the mutual nature of the violence is merely one factor the court should consider...

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Criminal Practice – CSC with a Minor – Evidence – S.C. Homeland Security Act – Wiretapping by Parent – Vicarious Consent – First Impression – Forensic Interview (access required)

State v. Whitner Since the minor victim’s mother acted in good faith when she recorded the victim’s telephone conversations with defendant, the recordings were admissible under the S.C. Homeland Security Act.

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Criminal Practice – Criminal Sexual Conduct – Continuance Denied – Last-Minute Motion – Prosecution Argument – Burglary – Intent (access required)

State v. Meggett At the beginning of his trial -- nearly two years after he was arrested and seven months after he was notified that the case would be placed on the trial docket -- defendant moved for a continuance so he could have a comforter tested for two-year-old DNA. Defendant made no showing that the comforter had not been cleaned or used by anyone else in the interim. Based on defendant’s inaction in attempting to obtain the comforter prior to requesting a continuance and the lack of evidence supporting his contention that the comforter still contained important evidence, we find the trial court did not abuse its discretion in denying defendant’s motion for a continuance.

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Criminal Practice – Evidence – Photographic Line-Up – Relevance – ‘Mug Shot’ (access required)

State v. Stephens Throughout the trial, defendant consistently attacked the reliability of witness Bates' identification of him in a photographic line-up. By doing so, defendant made the photographic line-up far more important than it might otherwise have been, thereby increasing its probative value. Only by viewing the actual line-up could the jury determine for itself whether the allegedly poor picture quality or the six-photograph format likely influenced Bates' identification. The trial court did not err in admitting the line-up into evidence.

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Criminal Practice – Criminal Sexual Conduct – Continuance Denied – Last-Minute Motion – Prosecution Argument – Burglary – Intent (access required)

State v. Meggett At the beginning of his trial -- nearly two years after he was arrested and seven months after he was notified that the case would be placed on the trial docket -- defendant moved for a continuance so he could have a comforter tested for two-year-old DNA.

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Criminal Practice – Habeas Corpus – Death Penalty — Murders (access required)

U.S. v. FulksA South Carolina defendant sentenced to death for his role in carjacking, kidnapping and the murder of two women in separate incidents during a crime spree after a Kentucky jail break cannot overturn his death sentence with claims of ineffective assistance of counsel; the 4th Circuit says none of the alleged errors by counsel would have made a difference in the outcome of this case.

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Criminal Practice – Search & Seizure – Probable Cause — Traffic Stop – Visual Speed Estimate — Insufficient (access required)

U.S. v. Sowards A deputy’s visual estimate of a driver’s speed – uncorroborated by radar or pacing and unsupported by any other indicia of reliability – did not provide probable cause to stop the driver for driving 75 in a 70-mph zone, and the 4th Circuit says the district court erred in denying defendant’s motion to suppress cocaine discovered in the car after the traffic stop.

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Criminal Practice – Sentencing – Mandatory Minimum – Sex Movies — Minors (access required)

U.S. v. Colson A defendant convicted of receipt of movies depicting female minors in sexual acts cannot overturn his 15-year mandatory minimum sentence under 18 U.S.C. § 2252A(b)(1) with a claim that the trial court misinterpreted his earlier conviction for possession of obscene items involving children under Va. Code § 18.2-374.1(B)(2).

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