Virginia - Dublin man loses appeal challenge

OFF THE WIRE
French David "Dizzy" Kanode's lawyer argued that his client, convicted in connection with a 2008 murder, had faced double jeopardy. He will appeal to the Supreme Court of Virginia.
By Shawna Morrison
The Roanoke Times
A Dublin man convicted in connection with a 2008 murder has lost challenges before the Court of Appeals of Virginia.
The court agreed earlier this month that the trial court did not err in denying French David "Dizzy" Kanode’s motions relating to double jeopardy and prosecutorial conduct.
Kanode’s lawyer, Jonathon Venzie, said Wednesday that he will appeal to the Supreme Court of Virginia.
Kanode, 35, was sentenced in August to 22 years in prison — 15 years for solicitation to commit murder and seven for conspiracy to commit murder — in the January 2008 killing of Dawn Lee Meredith Wright, 42, of Radford. He was convicted of both counts in a jury trial in December 2009 in Pulaski County Circuit Court.
After the trial, Venzie argued that there must be a solicitation for there to be a conspiracy and that Kanode had essentially been convicted twice of the same thing.
Circuit Court Judge Colin Gibb denied Venzie’s motion to set aside one of the convictions, saying he had made an interesting point but had made it too late.
The Court of Appeals of Virginia apparently agreed, saying in its opinion, "Since appellant’s motion was not timely, there is no need to determine the merits of his double jeopardy argument."
The opinion said a motion based on double jeopardy must be filed before trial.
Venzie said Wednesday he thinks that if he had raised the issue before Kanode’s trial, he would have been told there was no double jeopardy because Kanode had not yet been convicted of anything.
"You can’t raise it until it exists," he said.
Pulaski County Commonwealth’s Attorney Mike Fleenor said Wednesday that Venzie’s argument has no merit.
"A conspiracy and a solicitation have different elements," he said. "They clearly can be separate crimes."
Venzie had also moved for a mistrial, calling it prosecutorial misconduct when Fleenor referred to Kanode as the devil.
Fleenor said to the jury during his closing argument, "When you put the devil on trial, you’ve got to go to hell to get your witnesses."
The appellate court found that Venzie had "set the stage for the rather pejorative exchange of accusations and counter-accusations" by repeatedly calling Richard Mabry, the prosecution’s key witness, a "monster."
Mabry testified during the trial that he repeatedly stabbed Wright because Kanode had told him to as part of an initiation into the Pagans motorcycle club. Kanode was not, however, a member of the Pagans. He denied telling Mabry to kill Wright.
Mabry, who was sentenced to serve 30 years in prison, is being held in the Keen Mountain Correctional Center. Kanode is in the Greensville Correctional Center.
http://www.roanoke.com/