The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.

I’ve been charged with “possession of a firearm by a convicted felon in Virginia,” I need a good criminal defense attorney who handles possession of a firearm cases by a convicted felon.

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Using Old Chief to exclude the name and nature of a substantially similar offenses in a Possession of a Firearm by a Convicted Felon case.

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Possession of a firearm by a convicted felon in violation of Va Code § 18.2-308.2 is one of the most devastating class 6 felonies an individual can be charged with in Virginia.  Not just because a second amendment right has been taken away from the person, but because you can face mandatory minimum time.  If you are charged with this crime and your prior felony occurred in the last 10 years, you must serve a minimum of two years if convicted.  If you were convicted of a violent felony as defined in Va Code § 17.1-805 at any time prior to being charged with this offense and you are subsequently convicted, then you will automatically receive the maximum punishment for a class 6 felony…5 years!

The Commonwealth has the burden to prove (1) that the defendant was convicted of a felony under any state or federal law and (2) that the defendant was in possession of a firearm or stun weapon as defined in 18.2-308.1 or explosive materials.  The first element of a felony conviction is typically a foregone conclusion and the Commonwealth can prove this introducing the indictment of the charge including what the charge was and when and where it occurred.

Under Va. Rule of Evidence 2:403 the court has the discretion to exclude evidence that would be substantially more prejudicial than probative.  While evidence is rarely excluded on this basis, particularly when introducing evidence of a required element of the offense, in the case of a possession of a firearm by convicted felon, a prior felony offense of a similar nature could certainly impact the jury in an unfairly prejudicial way.  ESPECIALLY, IF THE PRIOR CONVICTION WAS A POSSESSION OF A FIREARM BY A CONVICTED FELON!

In Old Chief v. United States, the United Sates Supreme Court was asked to address whether the particulars of a conviction are admissible in a firearm felon case, given an offer by the defense to stipulate to the fact that the defendant is a convicted felon.  The Court found that, given an offer to stipulate, the probative value of the particulars of the conviction was discounted and substantially outweighed by the danger of unfair prejudice.  The risk of unfair prejudice can vary from case to case but… “[w]here a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious…” Old Chief v. United States, 519 U.S. 172, 185 (1997).

I had a recent case where it appeared that this issue had not been directly addressed in Virginia with respect to an offer to stipulate (see Boone v. Commonwealth 285 Va. 597 (2013)), and all negative case law preceded Old Chief (see Glover v. Commonwealth 285 Va. 597 (1986); see also Essex v. Commonwealth (18 Va. App. 168 (1994)).  After consulting with colleagues at the Richmond Public Defender’s office, I filed a motion in limine to exclude any reference to the specifics of the prior conviction (which in my case was a federal firearm felon conviction). After review of the case law and brief oral argument, the court in my case found that Old Chief was very much on point and extremely persuasive and thus granted the motion and advised us to agree on an appropriate stipulation with the Commonwealth.

While it may initially seem unwise to concede an element of the crime, as I stated earlier, the fact that the defendant was a convicted felon was a foregone conclusion that would be easily proven by the Commonwealth.  The exclusion of the specifics of his prior felony meant that the jury could not see that the defendant was previously convicted of a similar crime in federal court ten years earlier.  There is no doubt that this information would have been extremely prejudicial to the client.  Once we were able to keep the specifics of his conviction out of evidence and focus simply on whether he was in possession of a firearm on that specific day, the case leaned more in our favor because the jury could not be distracted by the fact that he’d been convicted of the same offense in federal court.

At the conclusion of the Commonwealth’s evidence and after closing statements, within 30 minutes the jury returned a not guilty verdict and freed my client from the burden of a 5 year mandatory sentence.  There is no doubt in my mind that had the jury learned that he had been convicted of a federal firearm charge previously, this would have been a much more difficult case.

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If you have been charged with a crime or you are appealing your conviction, you should contact us immediately.

Hull Street Law
a division of Thomas H. Roberts & Associates, PC
105 S 1st Street, Suite H
Richmond, Virginia 23219
(804) 230-4200

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice and you should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.