SCOVA granted 9 appeals in recent days, 5 criminal and 4 civil. Highlights include

Complete information about the writs is available on the Court’s website. Here is a summary of the cases, lawyers, and issues involved:

BROOKS v. COMMONWEALTH, Record Number 091047, on appeal from the Court of Appeals of Virginia

Counsel

  • Daniel W. Hall (Office of the Public Defender) for appellant.
  • Cheryl J. Wilson (Office of the Commonwealth’s Attorney) for appellee.

Assignments of Error

  1. The Court of Appeals erred by upholding the trial court’s refusal to suppress the evidence where the consent given for a search for a gun did not justify the search of a folded NTelos bag, rendering the further search a violation of petitioner’s rights under the U.S. and Virginia Constitutions.
  2. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements as the immediate fruit of the unlawful search of the NTelos bag.
  3. The Court of Appeals erred by upholding the trial court’s refusal to suppress defendant’s statements where they were made in violation of his Miranda rights under the Fifth and Sixth Amendments.
  4. The Court of Appeals erred by upholding the trial court’s ruling permitting the introduction of a certificate of analysis in violation of the appellant’s rights under the Confrontation Clause.

 

SCHUMAN v. SCHUMAN, Record Number 100967, on appeal from the Court of Appeals of Virginia

Counsel

  • Scott A. Surovell (Surovell Markel Isaacs & Levy PLC) for the appellant.
  • William B. Reichhardt and Colleen C. Sweeney (William B. Reichhardt & Associates) for the appellee.

Assignments of Error

  1. The Court of Appeals erroneously disregarded the trial court’s interpretation of the agreement.
  2. The Court of Appeals erroneously affirmed the trial court’s equitable distribution of the Arlington condominium.
  3. The Court of Appeals erroneously affirmed the trial court’s refusal to equitably distribute the wife’s deferred compensation earned entirely during the marriage.

RUSSELL v. CRANE, Record Number 101407,on appeal from the Circuit Court of Chesterfield County

Counsel

  • John R. Newby (Tronfeld, West & Durrett) for appellant.
  • Lawrence A. Dunn, Sandra S. Gregor and Christopher K. Jones (Morris & Morris, P.C.) for appellee.

Assignments of Error

  1. The trial court erred in giving jury instruction no. 10, the defendant’s proffered instruction concerning the duties of a driver facing a green light, because the instruction incorrectly stated the law, placed a higher duty on the plaintiff than required by Virginia law, placed undue emphasis on the defendant’s position, and was quoted directly from an appellate opinion.

TURNER v. COMMONWEALTH, Record Number 101457, on appeal from the Court of Appeals of Virginia.

Counsel

  • David B. Hargett (Hargett Law, PLC) and Mary Fitzgerald Kelly (University of Richmond School of Law) for appellant.
  • Robert H. Anderson, III (Office of the Attorney General) for appellee.

Assignments of Error

  1. The Court of Appeals erred in refusing to grant the writ of actual innocence and vacate Turner’s convictions for murder and abduction with intent to defile.
  2. The Court of Appeals erred in ruling that “a rational fact finder could have found that Turner abducted Evans by deception—meaning no finding of force or restraint would have been required—and that the abduction ended with Evans’ murder.”
  3. The Court of Appeals erred in ruling that “it cannot be said that Brown’s credible recantation provides this Court with clear and convincing evidence that no rational fact finder could have found that Turner used deception to abduct Evans with the intent to have sexual intercourse with her against her will. Therefore, Turner was properly convicted of abduction with intent to defile and murder.”

Assignment of Cross-Error

  1. The Court of Appeals wrongly held that it was bound by the circuit court’s finding that the co-defendant’s post-trial statements were “credible.”

WATERGATE AT LANDMARK CONDOMINIUM UNIT OWNERS ASSOCIATION v. STORY, Record Number 101726, on appeal from the Circuit Court of the City of Alexandria

Counsel

  • James M. Mansfield (HARTSOE, MANSFIELD & MORGAN, P.L.L.C.) for appellant.
  • J. Brincefield, Jr., Esquire, and Donald F. King (ODIN, FELDMAN & PITTLEMAN, P.C.) for appellees.

Assignments of Error

  1. The Trial Court erred in not approving the sale of the property free and clear of all liens and encumbrances.

RIX v. COMMONWEALTH, Record Number 101737, on appeal from the Court of Appeals of Virginia

Counsel

  • Michael J. Woods (Michael J. Woods, P.C.) for appellant.
  • John W. Blanton (Office of the Attorney General) for appellee.

Assignments of Error

  1. Whether the facts and/or evidence were sufficient to find the Appellant guilty of the offense?

HOME PARAMOUNT PEST CONTROL COMPANIES, INC. v. SHAFFER, Record Number 101837, on appeal from the Circuit Court of Fairfax County

Counsel

  • Alexander Francuzenko and Zachary A. Kitts (Cook Kitts & Francuzenko, PLLC) for appellant.
  • Charles W. Sickels and Holly Parkhurst Essing (Hall, Sickels, Frei & Mims, P.C.) for appellees.

Assignments of Error

  1. The Circuit Court erred in finding the non-compete overly broad, because the Court focused only on the scope of the restricted activities and did not consider that portion of the agreement in light of the narrow geographic scope of the restriction which applied only to certain limited geographic boundaries within Fairfax County, and did not prevent employee from working for Connors in the exact same office in which he is employed.
  2. The Court erred in failing to consider the specific facts of this case in interpreting the non-compete; for example, the Court failed to consider Shaffer’s academic training and work experience in the area of pest control and entomology when it determined whether the scope of the restricted activity was broader than necessary to protect Home Paramount’s interests.
  3. The Court erred in disregarding the specific facts put into evidence at the plea in bar hearing, which established that Shaffer and Connors had solicited Home Paramount customers.

KELSO v. COMMONWEALTH, Record Number 101866, on appeal from the Court of Appeals of Virginia

Counsel

  • Melissa W. Friedman and Anthony F. Anderson (Anderson & Friedman) for appellant.
  • Rosemary V. Bourne (Office of the Attorney General) for appellee.

Assignments of Error

  1. The Circuit Court for Hanover County lacked jurisdiction and venue to prosecute crimes of distributing to a juvenile or causing any person under 18 years of age to assist in such distribution in violation of Virginia Code Section 18.2-255(A) when such crimes were committed in Henrico County.
  2. The Court of Appeals erred in holding that the defendant had waived his objection to territorial jurisdiction, in holding that the evidence established a strong presumption that the crimes occurred in Hanover County and that therefore the trial court had jurisdiction and venue, and in affirming the defendant’s convictions.
  3. The Court of Appeals erred in holding that Virginia Code Section 18.2-255(A) is a “continuing offense” for purposes of venue.
  4. The Circuit Court erred in deciding that the Commonwealth presented sufficient evidence to prove that the defendant committed a violation of Virginia Code Section 18.2-255(A)(II) where there was no evidence that on the dates alleged in the indictments the defendant caused a juvenile to assist in distribution to a juvenile or that the defendant had knowledge that any such distribution was to a juvenile, and the Court of Appeals erred in refusing to grant an appeal of this issue.
  5. The Court of Appeals erred in holding that the elements of Virginia Code Section 18.2-255(A) do not include proof that the ultimate recipient of the drug distributed must be a juvenile and in holding that the defendant’s insufficiency claim was waived.

COMMONWEALTH v. McNEAL, Record Number 101933, from the Court of Appeals of Virginia

Counsel

  • Benjamin H. Katz (OFFICE OF THE ATTORNEY GENERAL) for appellant.
  • David C. Smith (OFFICE OF THE PUBLIC DEFENDER) for appellee.

Assignments of Error

  1. In finding the evidence insufficient to support the defendant’s conviction, the Court of Appeals erred and failed to view the evidence in the light most favorable to the Commonwealth.