Anderson v. Commonwealth – July 28, 2009
Anderson contends the police violated his right to remain silent when an officer asked him while he was handcuffed whether a gun he threw during a chase was loaded. In an unpublished opinion, the CAV concluded that “[t]o protect the general public and himself, the officer needed to know whether the weapon was loaded and an immediate danger as it lay.” The CAV applied the public safety exception to the Miranda rule and affirmed the judgment of the trial court denying Anderson’s motion to suppress. See New York v. Quarles, 467 U.S. 649 (1984)
From
The Circuit Court of the City of Richmond; C.N. Jenkins, Jr., Judge.
Counsel
Jessica M. Bulos (Office of the Appellate Defender) for the appellant.
Virginia B. Theisen (Office of the Attorney General) for the appellee.
Assignments of Error
1. The trial court erred by denying the motion to suppress, and the Court of Appeals erred by affirming that denial, when the police interrogated Anderson without first advising him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
2. In light of this Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004) (plurality opinion).
6. The Court of Appeals erred by concluding that the holdings of Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v. Seibert, 542 U.S. 600 (2004) were inapplicable to Anderson’s case.
7. Assignment of Cross-Error: 1. The Court of Appeals erred in failing to hold, in the alternative, that Anderson was not in custody at the time Officer Waite asked him whether the gun was loaded.
Date Granted
7-23-2009
Vaughn v. Commonwealth – July 28, 2009
Vaughan contends the CAV improperly “expand[ed] the implied consent principle of Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) to allow a police officer to go beyond the pathway to the front door and to enter other areas of the curtilage of a dwelling to attempt to contact a resident for investigative purposes.”
Police went to Vaughn’s home to ask him about his involvement in larcenies from a scrap yard. When Vaughn didn’t answer the front door, the officer went around to the back of the house to see “if anybody might be around the back.” In the backyard, the officer observed items stolen from the scrap yard.
The trial court denied Vaughn’s motion to suppress, applying the plain view doctrine. The CAV affirmed the trial court’s judgment, concluding that pursuant to the implied consent, i.e., “knock and talk,” doctrine, the officer was lawfully in Vaughn’s backyard when he saw the stolen property in plain view. The CAV cited Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) as authority for its decision.
The Commonwealth argues Vaughan’s assignment of error was not preserved in the trial court.
From
The Court of Appeals of Virginia (published opinion)
Counsel
S. Jane Chittom (Office of the Appellate Defender) for appellant.
William C. Mims and Josephine F. Whalen(Office of the Attorney General) for appellee.
Assignments of Error
1. The Circuit Court erred in denying appellant’s motion to suppress the fruits of an unlawful entry and search of the backyard of appellant’s residence.
2. The Court of Appeals erred in expanding the implied consent principle of Robinson v. Commonwealth, 273 Va. 26, 639 S.E.2d 217 (2007) to allow a police officer to go beyond the pathway to the front door and to enter other areas of the curtilage of a dwelling to attempt to contact a resident for investigative purposes.
3. The Court of Appeals erred in holding that the law enforcement officer in this case had a right to enter Vaughn’s backyard under an implied consent theory without a warrant and without any exigent circumstances.
4. Assignment of Cross-Error: 1. The Court of Appeals erred in failing to find Vaughn’s challenge to the officer’s authority to enter the yard procedurally defaulted pursuant to Rule 5A:18.
5. Assignment of Cross-Error: 2. The Court of Appeals erred in failing to find procedurally defaulted pursuant to Rule 5A:18 Vaughn’s claim that his confession to the July 26, 2006 larceny was derivative of the allegedly unlawful seizure from his yard of evidence of the August 7, 2006 larceny.
6. Assignment of Cross-Error: 3. The Court of Appeals erred in failing to find Vaughn’s confession was not the result of the officer’s entry into the backyard.
Date Granted
7-21-2009
Burns v. Commonwealth – July 28, 2009
Burns asked the trial court to find him “mentally retarded within the meaning of Code § 19.2-264.3:1.1.” In a civil proceeding, the trial court found that he was not mentally retarded. Burns alleges 17 errors on the part of the trial court as to that decision.
Burns was convicted by a jury of capital murder in the commission of rape and/or forcible sodomy in violation of Code 18.2-31, statutory burglary in violation of Code 18.2-90, rape in violation of Code 18.2-61, and forcible sodomy (anal intercourse) in violation of Code 18.2-67.1.1. The jury fixed his punishment as death on the capital murder conviction, finding that “there is a probability that [Burns] would commit criminal acts of violence that would constitute a continuing serious threat to society” and that his conduct in committing the offense was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.” The jury also sentenced Burns to 18 years on the statutory burglary conviction, and to life imprisonment on each of the convictions for rape and forcible sodomy.
The SCV affirmed Burns’ convictions in 2001.
On habeas, the SCV remanded Burns’ case to the trial court for a mental retardation determination hearing pursuant to Code § 8.01-654.2. The judgment of the trial court summarily dismissing the question of Burns’ mental retardation prior to the issue going to the jury is the judgment Burns now appeals.
From
The Circuit Court of Shenandoah County; D.L. Hupp, Judge.
Counsel
James G. Connell, III, and Jonathan P. Sheldon (Devine, Connell & Sheldon, P.L.C.) for appellant.
Katherine B. Burnett (Office of the Attorney General) for appellee.
Assignments of Error
1. The trial court erred in granting summary judgment against Burns on the issue of whether he is mentally retarded within the meaning of Code § 19.2-264.3:1.1.
2. The trial court erred in granting summary judgment against Burns because the proceeding below was not a civil proceeding.
3. The trial court erred in granting summary judgment against Burns because the proceeding below was a criminal proceeding, or at least a quasi-criminal proceeding.
4. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his statutory right to a jury determination of his claim of mental retardation.
5. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Eighth and Fourteenth Amendment rights to a determination of his mental retardation in accordance with due process and equal protection.
6. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Fourteenth Amendment right to a jury determination of his claim of mental retardation.
7. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Eighth and Fourteenth Amendment right against execution of the mentally retarded.
8. The trial court erred in granting summary judgment against Burns because the proceedings below denied Burns his right to be present at critical phases of his trial.
9. The trial court erred in granting summary judgment against Burns because Code § 19.2-264.3:1.1 does not require expert testimony at trial on the issue of intellectual functioning.
10. The trial court erred in granting summary judgment against Burns because the summary judgment violated the mandate of this Court requiring a jury determination of Burns’ mental retardation claim.
11. The trial court erred in granting summary judgment against Burns because the Commonwealth was improperly represented by both the Commonwealth’s Attorney and the Attorney General.
12. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to be competent during the proceedings.
13. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to a hearing on his competence.
14. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to competence to be tested in conformity with accepted professional practice pursuant to Code § 19.2-263.3:1.1(B)(1), including administration of a standardized measure of intellectual functioning in conformity with professional practice.
15. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ Eighth and Fourteenth Amendment right to a mechanism to assert his claim of mental retardation.
16. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ due process right to the benefit of Virginia’s statutory procedure for asserting a claim of mental retardation.
17. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ right to rationally assist his counsel by participating in an intellectual functioning assessment.
18. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because the Commonwealth aggravated Burns’ mental illness and denied him access to professional testing of his intellectual functioning by subjecting Burns to solitary confinement and inadequate medication.
Date Granted
7-24-2009
Shilling v. Baker – July 28, 2009
Shilling contends the trial court erred in finding “burial” of human remains is necessary to be a cemetery under Virginia law.
From
The Circuit Court of Rockingham County; James V. Lane, Judge.
Counsel
Michael J. Melkersen, Esq. (Melkersen Law P.C.) for appellant.
Kevin M. Rose, Esq. (BotkinRose PLC) for appellees Brian C. Baker, Lisa S. Simons, and David R. Kelly; Thomas H. Miller, Jr., Esq. (Office of the County Attorney) for appellee Board of Zoning Appeals for Rockingham County.
Assignments of Error
1. The circuit court erred as a matter of law in concluding that “burial” of human remains is a required pre-requisite to establish a valid cemetery under Virginia law.
2. The circuit court erred as a matter of law in failing to hold that the defendants’ claims are barred under the doctrines of laches or estoppel.
3. [CROSS-ERROR] The trial court erred by not granting appellees’ demurrer and thereby not dismissing Shilling’s petition for appeal of the BZA determination, case no. Cl08-607, on the grounds that the BZA was not named as a party defendant as required under Va. Code § 15.2-2314.
Date Granted
7-27-2009
Kimble v. Carey – July 28, 2009
Kimble contends the trial court erred in denying her motion to amend her complaint and prohibiting her from presenting at trial evidence of Carey’s intoxication.
From
The Circuit Court of the City of Richmond; C.N. Jenkins, Jr., Judge.
Counsel
David O. Prince for appellant.
Carl R. Schwertz (Duane, Hauck & Gnapp, P.C.) for appellee.
Assignments of Error
1. The trial court erred in denying plaintiff’s Motion to Amend her Complaint.
2. The trial court erred in denying plaintiff the right to introduce evidence of the defendant’s intoxication at trial.
3. The trial court erred in granting defendant’s Motion to Strike plaintiff’s case.
Date Granted
7-22-2009
Hafner v. Hansen – July 28, 2009
Hafner contends the trial court erred in in treating an affirmative defense by Hansen as a counterclaim to grant and create a prescriptive easement, in favor of Hansen, for an underground sewer pipe. Hafner also contends the evidence was insufficient to support the creation of the prescriptive easement, and that the trial court erred in disregarding her damages claim.
From
The Circuit Court of Arlington County; J.P. Alper, Judge.
Counsel
Mark P. Friedlander, Jr. (Friedlander, Friedlander & Earman, P.C.) for appellant.
Robert J. Duffett (Baskin, Jackson, Hansbarger & Duffett) for appellee.
Assignments of Error
1. The Court erred in treating an affirmative defense by Appellee/Defendant as a counterclaim to grant and create a prescriptive easement in favor of Appellee.
2. The Court erred in applying circumstantial evidence from which inferences could be drawn equally for either side, to grant a party a prescriptive easement for a hidden, underground sewer pipe which requires proof by clear and convincing evidence when an equally probable inference supports a permissive use defeating a claim for prescriptive easement and no proof of being open and notorious for the tacking of ownership to support the required twenty years.
3. The Court erred in disregarding Plaintiff’s proof of damages.
Date Granted
7-27-2009
Goode v. Commonwealth – July 21, 2009
Goode contends the evidence was insufficient to prove he knowingly and intentionally possessed cocaine.
Around midnight, an officer saw a minivan parked in a bank parking lot. The two occupants said they were the only occupants of the van. The officer searched the bank perimeter and found Goode hiding behind a tree. The officer took Goode into custody and found a crack pipe approximately ten to fifteen feet from where he had been hiding.
Goode testified in his defense. He stated he hid because he did not want to be arrested for trespassing. Goode denied possession of the crack pipe. The trial court expressly found Goode’s testimony to be incredible.
In a one-judge order, CAV concluded the evidence was sufficient to prove Goode knowingly and intentionally possessed the cocaine residue found in the crack pipe, citing Goode’s “suspicious conduct of hiding, the location and time of the incident, and [Goode's] proximity to the crack pipe.”
From
The Court of Appeals of Virginia (one-judge order)
Counsel
Anastasia K. Jones for appellant.
Richard K. Cox (Office of the Commonwealth’s Attorney) for appellee.
Assignments of Error
1. The Court of Appeals erred in finding that there was sufficient evidence to prove beyond a reasonable doubt that Goode knowingly or intentionally possessed a Schedule II drug (cocaine) in violation of Virginia Code section 18.2-250(a).
Date Granted
7-16-2009
Archer v. Commonwealth – July 21, 2009
Archer contends the trial court erred in denying his pre-trial motion to suppress, arguing the officer did not have reasonable suspicion to stop him.
A police officer ran the license tags of the car driven by Archer. The DMV database returned that the registered owner of the car had a suspended driver’s license, and also returned the physical description of the registered owner. The officer “observed [Archer] from only a few feet away,” and determined he matched the physical description of the registered owner. The CAV concluded the officer had reasonable suspicion to stop Archer for driving on a suspended license.
From
The Court of Appeals of Virginia (one-judge order)
Counsel
Wallace W. Brittle, Jr. (Riddick Babineau, PC) for appellant.
C. Phillip Ferguson and Susan Walton (Office of the Commonwealth’s Attorney) for appellee.
Assignments of Error
1. The Court of Appeals erred when it affirmed the trial court’s denial of Archer’s Motion to Suppress, because the police officer did not have a reasonable, articulable suspicion for stopping the vehicle Archer was driving the night of the alleged offense.
Date Granted
7-16-2009
Commonwealth v. Brown – July 21, 2009
The Commonwealth contends the CAV erred in reversing Brown’s conviction on a basis not argued on appeal. The CAV concluded the trial court erred in denying Brown’s motion to suppress, finding that while the officer had reasonable suspicion to detain Brown, he did not have probable cause to arrest him for possessing cocaine.
After receiving a tip that two individuals were selling drugs in an area in which the he had previously made several narcotics distribution arrests, the officer found Brown, described by the officer as a “known narcotics dealer,” standing near another man on a pedestrian bridge. The officer observed Brown holding an open container of alcohol and the other man urinating on the bridge. After Brown made a furtive gesture, the officer handcuffed and frisked him and the other man. He found ashes in a folded lottery slip in the second man’s pocket, and remembered having seen a similarly folded lottery slip on the pedestrian bridge where the men had been standing. The officer recovered that folded lottery slip, and found cocaine in the fold. He arrested Brown for possession of cocaine.
From
The Court of Appeals of Virginia (unpublished decision)
Counsel
William C. Mims and Virginia B. Theisen (Office of the Attorney General) for appellant.
Paul F. Fantl for appellee.
Assignments of Error
1. The Court of Appeals erred in reversing the circuit court’s judgment on a basis not argued on appeal.
2. The Court of Appeals erred in ruling that the police lacked probable cause to arrest Brown for possession of the cocaine found in the folded lottery slip on the ground.
Date Granted
7-20-2009
Johnson v. Hart – July 21, 2009
Appellant contends the trial court erred in ruling the beneficial owner of a legal malpractice claim accruing to an estate did not have standing to bring action, with cross-appeal as to whether the trial court erred in applying Virginia Code § 8.01-13 to the facts in the case.
From
The Circuit Court of the City of Virginia Beach; F.B. Lowe, Judge.
Counsel
Moody E. Stallings, Jr., and Jonathan L. Stone (Stallings & Bischoff, P.C.) for appellant.
William D. Bayliss and M. Eve G. Campbell (Williams Mullen, P.C.) for appellees.
Assignments of Error
1. The trial court erred in sustaining the Summary Judgment, as Johnson, as a beneficial owner of a legal malpractice claim accruing to the estate, had standing to maintain this action against the respondents.
2. Assignment of Cross-Error: The trial court erred in applying Virginia Code § 8.01-13 to the facts in this case.
Date Granted
7-17-2009