867 S.E.2d 505
Va. Ct. App.2022Background
- In 2012 Hammer was convicted in Rockingham County and placed on supervised probation with a large portion of his sentence suspended.
- On Nov. 27, 2018 Officer Brandon Mawyer, acting on a BOLO for a possibly abducted female (Morgan Hammer), positioned his cruiser on Route 340, observed a speeding car, and positively identified Hammer as the driver (including seeing a distinctive hand tattoo) with Morgan in the passenger seat.
- A high-speed pursuit ensued; Hammer drove recklessly, ran out of gas, exited the vehicle, and fled into nearby woods wearing a black leather jacket. Mawyer found Morgan alive in the car; she gave a contemporaneous written statement that Hammer abducted her and would not let her exit.
- Officers later found the stolen car’s key and the black leather jacket in the Hammers’ apartment and arrested Hammer there. Hammer was indicted in Waynesboro for abduction, felony eluding, and driving as a habitual offender.
- On the morning of trial Morgan was late; the Commonwealth orally moved to nolle prosequi the abduction charge and the judge granted the oral motion. Morgan then arrived shortly after; the Commonwealth withdrew the nolle pros and proceeded on the abduction count. Hammer did not contemporaneously object to the reinstatement.
- At trial Mawyer identified Hammer; Morgan’s prior written statement was admitted but she recanted on the stand and claimed poor memory and fear. The jury convicted Hammer on all counts; the Rockingham court then revoked Hammer’s probation and imposed the suspended balance.
Issues
| Issue | Hammer's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by allowing the Commonwealth to withdraw an oral nolle prosequi and proceed on the abduction charge | Oral nolle pros was final and divested the court of jurisdiction; reinstatement was void ab initio | Oral nolle pros was not a written entry; the court retained jurisdiction and the withdrawal was permissible; Hammer also failed to object below | Waived under Rule 5A:18; oral nolle pros is not a final written entry and court retained authority to permit withdrawal minutes later |
| Whether the trial court lacked jurisdiction after an oral nolle pros such that a new indictment was required | Cites Miller — a new indictment is required after a nolle prosequi | A nolle pros is effective when entered in a written order; bench pronouncements are not final under Rule 1:1; even a written order can be reconsidered within the Rule 1:1 window | Court retained jurisdiction; Miller does not render the oral bench nolle pros irrevocable; no jurisdictional defect shown |
| Whether Officer Mawyer’s identification was inherently incredible such that the verdict must be set aside | Identification was unreliable because the vehicle was speeding and eyewitness ID was impossible | Mawyer had a clear illuminated view, recognized tattoos, made eye contact, and his testimony was corroborated by Morgan’s contemporaneous statement and physical evidence (jacket, key, stolen car) | Testimony was not inherently incredible; credibility matters for the factfinder and the court properly denied the motion to set aside the verdict |
| Whether pro se motions filed by Hammer while represented on appeal should be considered | Hammer attempted to raise additional pro se claims | Hybrid representation is not permitted; appellate counsel may decline weaker arguments | Pro se motions denied; appellate counsel has discretion to select arguments and hybrid representation not allowed |
Key Cases Cited
- Duggins v. Commonwealth, 59 Va. App. 785 (2012) (discusses nolle prosequi practice and reconsideration)
- Miller v. Commonwealth, 217 Va. 929 (1977) (addressed effect of nolle prosequi and subsequent prosecution)
- Bailey v. Commonwealth, 73 Va. App. 250 (2021) (entry date of orders and importance of written judgment under Rule 1:1)
- Moore v. Commonwealth, 59 Va. App. 795 (2012) (statutory regulation of nolle prosequi)
- Creamer v. Commonwealth, 64 Va. App. 185 (2015) (contemporaneous-objection rule under Rule 5A:18)
- Gerald v. Commonwealth, 295 Va. 469 (2018) (standard for overturning credibility findings; inherently incredible test)
- Juniper v. Commonwealth, 271 Va. 362 (2006) (defines when testimony is "manifestly false" or inherently incredible)
- Muhammad v. Commonwealth, 269 Va. 451 (2005) (limits on hybrid representation)
- Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel’s discretion to winnow arguments)