In a jury trial, Neria was found guilty of driving under the influence, fourth or subsequent offense in a ten-year period, in violation of Code §§ 18.2-266 and 18.2-270. The jury fixed Neria’s punishment at a fine of $2,500 and a sentence of four years and six months incarceration under Code § 18.2-270(C), a Class 6 felony. On appeal, Neria argued that “the imposition of th[e] fine exceed[ed] the lawful range of punishment set by Code § 18.2-10(f) for Class 6 felonies.” After attempting to harmonize Code §§ 18.2-270(C) AND 18.2-10(f), the CAV concluded that since “the provisions of Code § 18.2-270(C) address the specific subject of enhanced punishments for criminal defendants who commit multiple violations of Code § 18.2-266 in a given time frame,” and “Code § 18.2-10(f) addresses the subject of punishments available for Class 6 felonies in general,” then “to the extent that the two statutes conflict, Code § 18.2-270 prevails as the more specific statute.”

Neria also contends that “Instruction No. 12 was facially incorrect. The instruction provided that, ‘you shall fix his punishment at, one, a specific term of imprisonment, but not less than one year nor more than five years, and two, a fine of not more than $2,500.’” The CAV concluded that “while Instruction No. 12 erroneously left out the mandatory minimum fine of $1,000,….because the punishment fits within the statutory requirements of Code § 18.2-270(C) and d[id] not prejudice [Neria], [he] [was] not entitled to a new sentencing proceeding.”

From
The Court of Appeals of Virginia (unpublished opinion)

Counsel
Patrick M. Blanch (Office of the Public Defender) for appellant.

Jennifer C. Williamson (Office of the Attorney General) for appellee.

Assignments of Error
1. The Court of Appeals erred by holding that Virginia Code §§ 18.2-10 and 18.2-270(C) permitted a maximum fine of $2500 where the defendant was sentenced to imprisonment in excess of 12 months.

2. The Court of Appeals erred when it held that Appellant was not entitled to a new sentencing proceeding pursuant to Virginia Code § 19.2-295.1 because the trial court imposed a permissible fine under Virginia Code §§ 18.2-10 and 18.2-270(C).

3. The Court of Appeals erred when it required Appellant to demonstrate prejudice in order to obtain a new sentencing hearing pursuant to Virginia Code § 19.2-295.1, notwithstanding its finding that the contested sentencing instruction was facially erroneous.

Date Granted
8-24-2009

In a published opinion, the CAV concluded that the affidavit was non-testimonial, because it “was prepared in a non-adversarial setting, and is not ‘accusatory.’ The affiant simply generated the document from objective facts already in existence. The sex offender registry is a ‘neutral repository of information that reflects the objective results of a search of public records.’”

Steve Emmert provided analysis of the CAV published opinion at virginia-appeals.com.

From
The Court of Appeals of Virginia (published opinion)

Counsel
Jessica M. Bulos (Office of the Appellate Defender) for appellant.

Robert F. McDonnell and Alice T. Armstrong (Office of the Attorney General) for appellee.

Assignments of Error

1. The Court of Appeals erred by holding that admission of the Virginia State Police affidavit, pursuant to Code § 18.2-472.1(D), did not violate Mr. Harris’s Sixth Amendment right to confrontation because the affidavit was non-testimonial.

2. The trial court and Court of Appeals erred by failing to find that admission of the Virginia State Police affidavit, pursuant to Code § 18.2-472.1(D), violated Mr. Harris’s Sixth Amendment right to confrontation.

Date Granted
7-29-2009

From
The Circuit Court for the City of Alexandria; D.M. Haddock, Judge.

Counsel
Patrick A. Malone, Leonard W. Dooren (Patrick Malone & Associates, P.C.) and Bernard J. DiMuro (DiMuro Ginsberg, P.C.) for appellant.

Robert G. Harrington (Robert Harrington & Associates) for appellee.

Assignments of Error

1. The trial court erred as a matter of law in concluding that an off-duty police officer can never act as a dual agent at any one time, and further erred in finding that the officer in this case acted solely in his public capacity, where the uncontradicted evidence proved that his sole purpose in confronting the vehicle was to collect a bill for the private employer.

2. The trial court erred as a matter of law when it ruled that the officer was not defendant J-W Enterprises’ servant, but rather was an independent contractor, and further erred in determining that any such independent contractor status must necessarily lead to the conclusion that J-W Enterprises could not be held liable for the officer’s actions.

3. The trial court erred as a matter of law in determining that the sole proximate cause of injury was the combined actions of the car’s driver and the officer at the precise time of the shooting, and not the officer’s negligent actions in moving himself into a place of danger in front of a speeding car.

4. The trial court erred as a matter of law in concluding that the parties’ stipulation that the officer acted in self-defense necessarily absolved him of liability for negligently causing the injury.

5. The trial court erred as a matter of law in deciding that the City had no right to seek contribution because the City had “absolute” immunity for the officer’s actions and so, in settling the underlying dispute, the City acted as a “volunteer.”

Date Granted
7-29-2009

From
The Circuit Court of Prince William County; R.A. Potter, Judge.

Counsel
Amy L. Hermansen (Law Office of Amy L. Hermansen, PLLC) for appellants.

H. Jan Roltsch-Anoll (Szabo, Zelnick and Erickson, P.C.) and Lawrence Dayton Black (pro se) for appellees.

Assignments of Error

1. The trial court erred in holding that American Asphalt’s prior trial counsel, Miriam Ebrahimi, had express authority to agree to the settlement agreement and Mutual General Releases on its behalf.

2. The trial court erred in holding that there was a final acceptance by American Asphalt to the terms of the settlement agreement and Mutual General Releases.

Date Granted
7-29-2009

From
The Circuit Court of Arlington County; W.T. Newman, Jr., Judge.

Counsel
John H. Foote and Michael J. Coughlin (Walsh, Colucci, Lubeley, Emrich & Walsh, P.C.) for appellant.

John Foster (Office of the City Attorney, Falls Church) for appellee.

Assignments of Error
1. The trial court erred in holding that Zoning Ordinance 1799 of the City of Falls Church does not on its face violate the requirement of Va. Code Ann. § 15.2-2282 that “[a]ll zoning regulations shall be uniform for each class or kind of buildings and uses throughout each district . . .”, when the Ordinance plainly imposes height regulations on the Petitioner’s property that are more restrictive than the height regulations applicable to other – identically zoned – properties.

2. The trial court erred in holding that the City was entitled to a dismissal of Petitioner’s equal protection claim, where Ordinance 1799 was facially discriminatory and the City had failed to establish that Ordinance 1799 was substantially related to the public health, safety, or welfare.

Date Granted
7-28-2009

From
The Circuit Court of Arlington County; W.T. Newman, Jr., Judge.

Counsel
Howard B. Silberberg for appellant.

Natasha M. Zech and Steven D. Cundra (Roetzel & Andress, LPA) for appellee.

Assignments of Error

1. The trial court erred by dismissing Tir Conaill’s Complaint based on a ground not pleaded by 2401 Wilson.

2. The trial court erred by allowing 2401 Wilson, on the day of trial and for the first time in the litigation, to argue that Tir Conaill had no standing to and could not maintain this action.

3. The trial court erred by summarily dismissing the Complaint after taking into consideration and using a discovery deposition without all the parties agreeing to such consideration and use.

4. The trial court erred by ruling that compliance with the Virginia trade name statute creates an issue of subject matter jurisdiction which can be raised at any time.

Date Granted
7-28-2009

From
The Circuit Court of Washington County; C. Randall Lowe, Judge.

Counsel
James R. Henderson IV (Henderson & Forster, PLLC) for appellant.

Christen W. Burkholder(Christen W. Burkholder, P.C.) for appellee.

Assignments of Error

1. Where a 1909 Agreement and a 1909 Deed between the predecessors in title of the parties were executed on the same day; where the 1909 Agreement stated that the deed was to convey a “right of way;” where the Deed and Agreement both specified that the conveyance was for a “single-track railway;” and where the property conveyed by the 1909 Deed was described by a center-line course and widths, but not by a metes-and-bounds description, the Circuit Court erred in holding that the 1909 Deed conveyed a fee simple interest to the railway company.

2. Where the established meaning of the term “right of way” at the time of the 1909 transaction here at issue held that the conveyance of a “right of way” to a railway company conveyed only an easement, and not a fee, the Circuit Court erred in holding that the 1909 Deed, even when considered with the 1909 Agreement, conveyed a fee simple interest to the railway company.

3. The Circuit Court of Washington County erred in determining the intention of the grantors in a 1909 agreement and 1909 deed conveying a “right of way” for a “single-track railway” by reference to a case decided by the Supreme Court of Oregon in 1956 holding that a particular right of way was a conveyance in fee, where such a rule of decision had not been adopted in Virginia prior to the 1909 transaction here at issue.

4. The Circuit Court of Washington County erred in determining the intention of the grantors in a 1909 Agreement and 1909 Deed conveying a “right of way” for a “single-track railway” by reference to Federal cases based on Federal law and dissimilar circumstances holding that a “right of way” included a conveyance in fee, where such a rule of decision had not been adopted in Virginia prior to the 1909 transaction here at issue.

Date Granted
7-28-2009

Will provide more detail as to the offense when I get the one-judge order to post online.

From
The Court of Appeals of Virginia (one-judge order)

Counsel
Jerry E. Waldrop for appellant.

Lezlie S. Green (Office of the Commonwealth’s Attorney) for appellee.

Assignments of Error
1. The Court of Appeals and the Trial Court erred in ruling that Defense Motions in Limine numbered nine and ten, and the Defense Ex Parte Motion pursuant to § 19.2-389, Code of Va., regarding criminal record checks, including juvenile criminal records, of prospective Commonwealth witnesses were not required to be furnished to the Defense by the Commonwealth and also in denying the Defense the ability to question such witnesses as to juvenile convictions of felonies or moral turpitude misdemeanors for general impeachment purposes because the 5th Amendment due process guarantee, 6th Amendment right of confrontation and effective assistance of counsel guarantees, and 14th Amendment, as well as similar provisions of the Virginia Constitution, trump any preference for confidentiality of juvenile records.

2. The Court of Appeals and the Trial Court erred in overruling the Defense Motion to Strike at the conclusion of the Commonwealth’s Case-in-Chief, the Defense Motion to Strike at the conclusion of all the evidence, the Defense Motion to Set Aside the Verdict, and in granting principal in the second degree and concert of action jury instructions over Defense objection, because the evidence was insufficient to convict Defendant of first degree murder under § 18.2-32, and of use of firearm/murder under § 18.2-53.1, Code of Va.

3. The Court of Appeals and the Trial Court erred in overruling the Defense Motion at the conclusion of the Commonwealth’s Case-in-Chief to allow the case to proceed on an accessory after the fact murder theory and in refusing to grant a requested Defense instruction on that theory because the plain language of Va. Code § 19.2-286 and Supreme Court of Virginia Rule 3A:17(c), as well as the legislative history behind Code § 19.2-286, would plainly require a submission in the instant case to the jury on an accessory after the fact theory of liability and because the end result was inconsistent with Appellant’s right to a fair trial.

4. The Court of Appeals and the Trial Court erred in denying the Defense Motion to Quash or Dismiss Indictment and in granting, over Defense objection, jury instructions permitting an inference of malice because the law as stated in these jury instructions unlawfully permits a conviction to be had based upon a presumption rather than proof and unlawfully shifts the burden of proof to an accused and are unconstitutional.

5. The Court of Appeals and the Trial Court erred in disallowing Defense proposed voir dire questions numbered 17 and 28 because the same were within Code of Va. § 8.01-358, Virginia Supreme Court Rule 3A:14, and resulted in a denial of due process, equal protection, effective assistance of counsel, and trial by impartial jury in violation of the 5th, 6th, and 14th Amendments of the U.S. Constitution and the equivalent guarantees of the Virginia Constitution.

6. The Court of Appeals and the Trial Court erred in overruling the Defense Motions to Strike for Cause prospective jurors David Heizer and Lois Finch because bias in favor of a government witness is grounds for a challenge for cause; and juror bias, whether presumed or proven, requires automatic reversal; and for the same grounds as set forth in number 5, supra.

7. The Court of Appeals and the Trial Court erred in denying the Defense to refer to punishment ranges as to offenses in voir dire questioning of prospective jurors or in opening or closing argument because neither the Defense nor Prosecution could effectively screen prospective jurors for peremptory or for cause challenges and for the same constitutional grounds as set forth in numbers 5 and 6, supra.

8. The Court of Appeals and the Trial Court erred in overruling the Defense objection to the jury instruction regarding natural and probable consequences of one’s acts. The inference in such jury instruction eliminates the burden of proof on the Commonwealth to prove every element of an offense beyond a reasonable doubt, and unconstitutionally shifts the burden of proof regarding a defendant’s criminal intent.

9. The Court of Appeals and the Trial Court erred in overruling the Defense objection to the flight instruction and, after deciding to give that instruction, in denying the proffered flight instruction from the Defense because the granting of the proposed Commonwealth flight jury instruction was an improper comment on the evidence, drew specific attention to something in evidence, amounted to the functional equivalent of a directed verdict, and unconstitutionally shifted the burden of proof regarding a defendant’s criminal intent.

10. The Court of Appeals and the Trial Court erred in overruling the Defense objection to the testimony of Officer Brian Roberts as to incriminating statements allegedly made by defendant not within the three written statements or two audio recorded statements furnished by defendant to the police authorities because mitigating or exculpatory portions of statements made by defendant outside the three written statements and two recorded statements did not come into evidence along with the selected portions of such statements being testified to by Officer Roberts, the end result being a fundamental unfairness in trial.

11. The Court of Appeals and the Trial Court erred in denying the Defense request for the assistance of a private investigator because the same resulted in a denial of the 5th, 6th, and 14th Amendments guarantees of the U.S. Constitution and equivalent guarantees of the Virginia Constitution and Va. Code § 10.2-163.

12. The Court of Appeals and the Trial Court erred in not sustaining the Defense request for a pre-trial ruling prohibiting the Commonwealth from using in the jury’s presence the word “murder” other than in argument, as the same is conclusive, argumentative, should be properly restricted to only opening or closing arguments, was the ultimate issue with such testimony invading the province of the jury, resulting in fundamental unfairness of the trial.

13. The Court of Appeals and the Trial Court erred in allowing the Commonwealth to display to the jury and introduce into evidence autopsy photographs of the deceased and photographs portraying the condition of the body of the deceased because the prejudicial effect of displaying such photographs outweighed the probative value.

14. The Court of Appeals and the Trial Court erred by allowing statements attributed to the co-defendant, Cardell Avent, into evidence over Defense objection which tended to incriminate or inculpate defendant because the same violated the pre-trial ruling regarding same and resulted in a violation of 5th Amendment due process, 6th Amendment right of confrontation, 14th Amendment, and the equivalent guarantees of the Virginia Constitution.

15. The Court of Appeals and the Trial Court erred in allowing the introduction into evidence by the Commonwealth in its Case-in-Chief and in its first closing argument of an alleged previous assault or assault and battery by appellant against the deceased because the prejudicial effect of this testimony and this argument outweighed its probative value and the same resulted in a violation of 5th Amendment due process, 6th Amendment right of confrontation and effective assistance of counsel, 14th Amendment, and the equivalent guarantees of the Virginia Constitution.

Date Granted
7-22-2009