The Virginia Court of Appeals has vacated a firearms conviction against a 20-year-old Norfolk man, making him the first person in Virginia to be exonerated under a 2004 law allowing convicts to present new, non-DNA evidence of their innocence.
The appeals court granted Darrell Andrew Copeland's "writ of actual innocence," in a published decision handed down Tuesday. The court's decision comes after the attorney general's office conceded that Copeland is in prison for a crime he legally could not commit.
"Despite dozens and dozens of petitions of actual innocence, the court had not granted one until today," said L. Steven Emmert, an appellate lawyer and author of the Web site Virginia Appellate News & Analysis. "This is big news from a legal standpoint."
Copeland was convicted in Chesapeake Circuit Court in July 2007 for possession of a firearm by a felon after state police testified that his weapon was a black semiautomatic pistol. He was sentenced to five years in prison.
The appeals court's ruling Tuesday was based on the definition of a firearm. State law defines a firearm as an instrument intended to expel a projectile by means of an "explosion."
Chesapeake Public Defender Kathleen Ortiz, Copeland's attorney, filed the petition after learning of a lab test of the gun in question. Ortiz said she learned in December 2007 that Copeland's weapon was actually a "gas gun," which uses compressed gas to expel a projectil e.
The attorney general's office, in a rare move, supported Copeland's claim of innocence.
"They took a very responsible stand," Emmert said. "The attorney general's office deserves praise for this."
Appeals Judges D. Arthur Kelsey and William G. Petty and Senior Judge Rudolph Bumgardner heard the case.
"Having independently examined the record presented to us, we conclude the unique circumstances of this case make it prudent to accept the Attorney General's concession without further development of the facts," the court ruled. The case was remanded to the Circuit Court and is expected to be expunged from the record, Ortiz said.
"I'm pleased with the outcome and I encourage other people to try this," Ortiz said. "We have to test the limits and see where it goes."
Under the 21-day rule, Virginia law once required inmates to present newly discovered evidence of innocence within three weeks after sentencing. In 2002, the General Assembly made an exception to the rule for DNA evidence. In 2004, lawmakers did the same for nonbiological evidence.
Before the writ of actual innocence, the only avenue available to an inmate was to seek executive clemency from the governor, Emmert said.
"Now you have a mechanism you can go to with no political involvement," Emmert said. "It's a judicial function, and that's very important."
Despite the Virginia Court of Appeals' ruling, Copeland will remain behind bars for other crimes. He pleaded guilty in federal court to carjacking and conspiracy to commit robbery and was sentenced in April to 10 years in prison.
Arraignments are now being made to transfer Copeland from the Virginia Department of Corrections to a federal prison, Ortiz said.
John Hopkins, (757) 222-5221, john.hopkins@pilotonline.com
Delicious
Digg
Reddit
Facebook
Google
Yahoo
Be careful what you wish for...
I remember an old story from when I was a kid about a town in CA that had a ban on items that could expell a projectile. In the end they had to re-word the law because it ended up banning the following:
Guns
Rifles
Tennis Ball Launchers
BaseBall Launchers
Bows
CrossBows
Nail Guns
basically anything that could expell a projectile...
Public Defender - I guess
Public Defender - I guess that is her job, I just do not know how I would sleep at night helping criminals get off on technicalities.
Time for the state to change the wording of the law. This is what happens when lawyers become public officials. They leave things out and do not cover all of their bases. Do you think if we had engineers making laws there would be any loopholes??? The answer is probably not.
gas powered hand guns
can achieve several hundred feet per second! My .45 cal pistol can get up to roughly 900 feet per second
And , Jason? Joules is typically descriptive of electric energy like magnetism or thermal energy. It’s NOT descriptive of striking velocity, spin, torque, etc., which determines the damage to the target.
By all means...shame on the legislature for including "by means of expelling a projectile by means of an explosive.. " in the law and shame on Mizz Ortiz for zeroing in on that and subsequently arguing that this crime be dropped or dismissed to "test the limits" ...does this psycho-demonic attorney sleep at night?
The law is the law. The intent is any handgun, regardless of what a politician/states attorney/public defender includes in or argues the a law...no felon may possess may possess a handgun.
Period.
Doesn't matter if it's a cap gun!
Now
let's reinstate his right to vote so he can elect another slick lawyer, Obama. This is a waste of time and a system that is supposed to provide ramfication for persons truly wrongly accused and convicted. This nasty person is completely guilty and should remained locked up or executed--although Obama's potential running mate would likely commute that to life in prison at our expense.
How about this
Virginia legislators often forget to renew laws that have expirations. A friend of mine was charged breaking the wake in Dix Creek. His lawyer determined there was no valid law and it was dropped. Multiple other people were still convicted that day of the same offense even though there was no law to break.
For years people in Virginia were convicted of open container laws. Then an elected official was charged. His lawyer determined that there was no actual law on the books against it. Many, many people were convicted and paid fines and such even though it wasn't technically illegal. The next year the changed the law. It was slack. Check it out. I tell no lies.
The Law
Remember..Lawyers become judges and some where down the line they manage to become the lawmakers/politicans we elect. We have allowed the justice,
next witness!
Absolutely hate to say it, but this kind of mumbo jumbo
Law is exactly what we get when we elect people to write our laws who don't have an advanced education and who don't understand the proper use and or placement of punctuation. Then we hand a mess like this off to the attorneys who will absolutely tear it apart, just as they've done, and we act surprised. True enough, attorneys get plenty wrong, and so much is open to interpretation, but this is just another example that the general masses are not up to the task of writing our laws and/or governing us.
TAKE THIS!
Hey ldysknzfn,
Where does 'Proverbs' mention anything about cake?
It's just for show
It's pretty much just for show. They didn't specify what he had but it's probably one of those BB guns you can get for under $50 that looks like an automatic hand gun. Muzzle energy on those is about 5 Joules. In comparison, a 38 handgun is around 450 Joules.
The law definitely should be fixed to define "firearm" by muzzle velocity and energy like everyone else does it. Even if they did that, the air gun he had probably still wouldn't count as a firearm.
For all you folks expressing
For all you folks expressing outrage that he got off on a firearm's conviction relax. He still is serving 10 years for carjacking and attempted robbery. Good thing that the definition of a firearm requires an explosive (gunpowder) charge to be considered a firearm. I think the word "fire" gives a clue to the device's meaning. Otherwise in addition to pellet guns, paint ball guns, BB guns, suction dart guns, Frisbees, boomerangs, blow darts, and the like would be considered fire arms. A bit of a stretch don't you think?
not a "firearm"?
I wonder what Chesapeake's definition of "firearm" is. In the city I live in, it is defined as anything that discharges a projectile .177mm or larger. This covers toy airsoft guns, BB guns, and paint ball guns. My next door neighbor was charged with discharging his firearm (BB gun)withing city limits beacause of this law.
robbery
if someone is holding a gun to my head robbing me i am not going to question whether it is real or not,the point is the intent.if i sell false drugs to an under cover cop,don't i still get busted for intent?on the other hand how many people are in prison under the same circumstances and now we have a big can of worms freshly opened.you can buy air powered guns that have a muzzle velocity of 1500 ft per second and at close range that is deadly.i watched a hunting show on TV the other day they were hunting hogs with one of these air powered guns.they operate on the same principle as a firearm does,expanding pressure pushes the projectile out of the barrel.
Seld defense or manslaughter?
So a convvisted felon or anyone for that matter attempts to rob me with a replica weapon whether it be a peelet gun, bb gun or whatever. I get the upper hand and am able to shoot and kill said individual. Is it self defense or am I supposed to determine prior to shooting whether the gun is a replica or not?
He is not "getting out
He is not "getting out sooner".
He never should have been charged with that offense to begin with.
It was a 'pile on charge' that didn't apply to him. He is serving the time for the crimes he was convicted of.
I do not understand your point about being able to identify when a non-firearm is being used against you.
If a criminal presents a weapon, regardless of type, you are in danger and should respond accordingly. A criminal can paint an orange tip on a real gun and paint over an orange tip on a toy one! Let the responding officers determine what the actual weapon type was after you have secured yourself and he is in custody.
This ruling does not empower the criminal in some new manner, it simply removed an inappropriate conviction.
I can understand the need to
I can understand the need to keep to the letter of the law. however, I am not comforted in knowing a carjacking stick up man will be getting out on the streets sooner.
I am not sure if I will be able to recognize whether it is a "gas" gun being held to my head or not...
Court got one right
The question before the court was simple: "Was the felon in possession of a firearm?"
No. A pellet gun is not a firearm per the definition codified in state law, ergo, he was not guilty of that specific crime.
The DA simply leveled an additional but erroneous charge, but as the article indicates, he is serving time for the crimes he was actually guilty of.
There are statutes regarding the use of a look-a-like weapon during the commission of a crime, and would have been more applicable here (assuming that is what happened) rather than the 'felon in possession' charge.
Someone with a felony in their past rightly cannot be convicted for a 'felon in possession' offense if they are peacefully holding a non-firearm. Example: A non-violent felon (DUI, tax evasion, etc) sitting on their front porch with a water pistol playing with a child should not be carted off to jail.
Legislatures fault for way they defined the word
Sometimes the legislature makes our job so easy. Judge's decision absolutely correct. Why in the world the staffers in richmond would include the word "explosion" in the definition is beyond me.
It's a Gas Gun
This type of gun is a non-lethal gun that fires a plastic or rubber type of projectile. It is simular to a "BB" gun but not as powerful. I believe that this person was using this gun for reasons other than target shooting but the reversal of his conviction follows the law. Perhaps the law should be ammended to include these types of guns as well as BB and pellet guns. A felon should not possess any of these since they do look like a real gun
So, it was a pellet gun
I wonder if that firearms charge would have even existed if the pellet gun didn't look like a real gun.
Well this just takes
the proverbial cake! Way to go high court! You've just now given permission for every felon to run to the nearest gun dealer and buy a gas powered gun. Do these "guns"/firearms(guess this term isn't accurate)kill people or are they just for show? So the method of making the projectile come out of the gun makes a difference regardless of the consequences? So when someone gets killed w/one of these..are they not REALLY dead and the perpetrator not really a murderer? Shall we have someone stand at the gates of the prisons in VA and hand these things out to folks being released? Why not? It's every person's right to own a gun correct? This is really getting pathetic. No wonder everyone wants to own a gun. There's no accountability anymore.
"Despite the Virginia Court
"Despite the Virginia Court of Appeals’ ruling, Copeland will remain behind bars for other crimes"
Thank God.