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DISCLAIMER: Please note that every case is different and these verdicts and settlements, while accurate, do not represent what we may obtain for you in your case.

The Case of the Careless Commonwealth's Attorney

It is important for an attorney to be aware of the Rules of the Virginia Supreme Court, and of the rules of evidence. Too often, sadly, through inexperience or mistake, lawyers fail to pay attention to details, or even the nuances of a case. I have been "guilty" of this myself in the past, but always try hard to be alert for an advantage to use in representing the client. As as attorney, you do not want a reputation for being "asleep at the wheel." This case that demonstrates how proper preparation can work to the client's benefit.

The client in this case was properly stopped for making an illegal u-turn while he was on his way to join a firing range and to test a pistol he lawfully purchased at a gun show. So as to not be charged with carrying a concealed weapon, he had placed the unloaded pistol in the console/arm rest (with the lid opened) between the front passenger seat so that it was obvious and in plain view (and therefore, not "concealed"), but the pistol fell onto the floorboard and came to rest under his feet when he made the sharp turn.

As he waited for the officer who pulled him over to walk to the car, the client decided that instead of reaching for the gun and returning it to the place it had been, he would just tell the officer he had the gun once the officer came to the driver's door. The first thing the client did when the officer arrived was to tell him that his pistol had fallen off the console and was somewhere under his feet. Immediately, the officer ordered him out of the car and found the pistol where the client said it would be, but instead of taking into account the client's truthfulness, charged him with the illegal u-turn (which is a traffic offense punishable by just a fine) and possession of a concealed weapon (which could result in jail time to serve).

Prior to trial we requested all of the statements the client made to the police. Oddly, the Commonwealth's Attorney responded that there were no statements made by the client. The client assured us that he had told the officer about the gun as soon as the officer came to the driver's door. The only possible explanations for not disclosing this information -- information which the Commonwealth is required to produce when the defendant requests it -- were either the client was lying, or the Commonwealth's Attorney was concealing the statement to bolster its case that the defendant was concealing the pistol illegally.

However, before trial the Commonwealth's Attorney and the arresting officer either did not get to discuss the case, or failed to get their stories straight, because the officer (the Commonwealth's only witness), testified to the events exactly as my client told me they had occurred.

After the officer completed his direct examination testimony, we immediately asked the court to strike that part of the officer's testimony as to what my client said because it had not been disclosed in pre-trial discovery as required by the Rules. The court agreed and struck the client's statements to the officer. The Commonwealth was out of witnesses and rested its case. We moved for dismissal on grounds that the evidence was seized as a result of an illegal search -- the officer gave no basis for searching the car other than the defendant's statement that there was a gun under his feet, and that evidence had been striken -- and over the objections of the Commonwealth's Attorney,  our motion was granted and the concealed weapons charge was dismissed.

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