Preview:

COURT OF APPEALS OF VIRGINIA Present: Judges Elder, Kelsey and Powell Argued at Chesapeake, Virginia KARSTEN OBED ALLEN v. Record No. 0755-10-2 OPINION BY JUDGE D. ARTHUR KELSEY AUGUST 2, 2011

COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Bradley B. Cavedo, Judge Catherine S. Rusz (Johnson, Gaborik, Fisher-Rizk and Rusz, PLC, on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee. A jury convicted Karsten Obed Allen of abduction with intent to extort money or for pecuniary benefit, attempted robbery, possession of a firearm by a convicted felon, wearing body armor while possessing a firearm and during the commission of a crime of violence, use of a firearm in the commission of abduction, and use of a firearm in the commission of attempted robbery. Allen was tried at a joint trial with his codefendant, Carol Norman Drew, III. The court instructed the jury to consider separately the evidence as it related to each defendant. On appeal, Allen argues the trial court erred by trying him jointly with Drew. In a prior appeal of Drew's convictions, we rejected this assertion advocated from Drew's perspective. See Drew v. Commonwealth, No. 2846-09-2, 2011 Va. App. LEXIS 45 (Va. Ct. App. Feb. 8, 2011). We reach the same conclusion in this case advocated from Allen's perspective. I. SCOPE OF APPELLATE REVIEW When affirming a ruling made prior to trial, an appellate court may consider not only the proffers at the pretrial hearing but also the evidence presented at trial. See generally Emerson v.

Commonwealth, 43 Va. App. 263, 272, 597 S.E.2d 242, 247 (2004) (applying principle to a pretrial suppression motion); DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542-43 (1987) (same); see also United States v. Han, 74 F.3d 537, 539 (4th Cir. 1996) (noting federal courts have "held uniformly that an appellate tribunal may consider evidence adduced at trial that supports the district judge's ruling" made prior to trial). As an appellate basis for reversing a pretrial severance ruling, however, evidence at trial becomes relevant only if the defendant renews his motion at trial. "[T]he fact a pretrial motion has been denied is no reason for not renewing the motion during the course of the trial." 5 Wayne R. LaFave, Criminal Procedure

Download 0755102.pdf

Virginia Law