Home / 2005 / January

Monthly Archives: January 2005

RAYMOND BRIAN THOMAS, SR. v. COMMONWEALTH

Trial court did not err in admitting into evidence 46 plastic baggies described by an expert narcotics officer as indicative of drug distribution; appellant waived all but one of his appellate arguments by failing to make specific and timely objections at trial

Read More »

AHMER SHAIKH v. COMMONWEALTH

Trial court did not err in excusing two veniremen from the jury panel as the trial court had the discretion to remove any venireman who might be ?prevented from or impaired in performing the duties of a juror?; trial court had no affirmative duty to fashion its own definitional instruction to accompany the model concert of action instruction

Read More »

TRACY D. PARIS v. CITY OF VIRGINIA BEACH DEPARTMENT OF SOCIAL SERVICES

Summary affirmance ? trial court did not err by denying appellant?s motion to dismiss the Norfolk petition for termination of residual parental rights; the original petition from Virginia Beach Juvenile and Domestic Relations District Court was dismissed and the defect of that petition has no effect on the jurisdiction and validity of the Norfolk petition and order before this Court

Read More »

THOMAS v. COMMONWEALTH

Trial court did not err in admitting into evidence 46 plastic baggies described by an expert narcotics officer as indicative of drug distribution; appellant waived all but one of his appellate arguments by failing to make specific and timely objections at trial

Read More »

SHAIKH v. COMMONWEALTH

Trial court did not err in excusing two veniremen from the jury panel as the trial court had the discretion to remove any venireman who might be ?prevented from or impaired in performing the duties of a juror?; trial court had no affirmative duty to fashion its own definitional instruction to accompany the model concert of action instruction

Read More »

PARIS v. CITY OF VIRGINIA BEACH DEPARTMENT OF SOCIAL SERVICES

Summary affirmance ? trial court did not err by denying appellant?s motion to dismiss the Norfolk petition for termination of residual parental rights; the original petition from Virginia Beach Juvenile and Domestic Relations District Court was dismissed and the defect of that petition has no effect on the jurisdiction and validity of the Norfolk petition and order before this Court

Read More »

JASON A. JETER v. COMMONWEALTH

Trial court did not err in admitting into evidence a lock-sealed envelope containing a substance later identified as cocaine as the Commonwealth established a proper chain of custody; because appellant failed to cite any authorities in his opening brief to support his argument that the trial court erred in denying his motion to strike, appellant waived this issue on appeal

Read More »

AVERY MARTEZ LAMPKINS v. COMMONWEALTH

Circuit court properly retained jurisdiction of this case; pursuant to the cooperation/immunity agreement, the Commonwealth is barred from prosecuting this case and the indictments are dismissed as the Commonwealth did not prove a breach of the agreement

Read More »

JOAN COPPEDGE v. COMMONWEALTH

Trial court did not err in admitting appellant?s statements and physical evidence as the officer effected an ?actual custodial arrest? and then conducted a search incident to the arrest

Read More »

TYRONE ALPHONSO WILSON v. COMMONWEALTH

Trial court erred by refusing to consider the proffered plea agreement reached by parties the morning of trial; as trial court had sufficient evidence to conclude that appellant was a convicted felon and in constructive possession of contraband, remanded for new trial

Read More »

COPPEDGE v. COMMONWEALTH

Trial court did not err in admitting appellant?s statements and physical evidence as the officer effected an ?actual custodial arrest? and then conducted a search incident to the arrest

Read More »

WILSON v. COMMONWEALTH

Trial court erred by refusing to consider the proffered plea agreement reached by parties the morning of trial; as trial court had sufficient evidence to conclude that appellant was a convicted felon and in constructive possession of contraband, remanded for new trial

Read More »

JETER v. COMMONWEALTH

Trial court did not err in admitting into evidence a lock-sealed envelope containing a substance later identified as cocaine as the Commonwealth established a proper chain of custody; because appellant failed to cite any authorities in his opening brief to support his argument that the trial court erred in denying his motion to strike, appellant waived this issue on appeal

Read More »

LAMPKINS v. COMMONWEALTH

Circuit court properly retained jurisdiction of this case; pursuant to the cooperation/immunity agreement, the Commonwealth is barred from prosecuting this case and the indictments are dismissed as the Commonwealth did not prove a breach of the agreement

Read More »

MID-ATLANTIC BUSINESS COMMUNICATIONS, INC. v. VIRGINIA DEPT. OF MOTOR VEHICLES

In litigation under the Virginia Public Procurement Act, the trial court correctly dismissed plaintiff's motion for judgment seeking a contract payment and sustained the defendant state agency's demurrer and plea in bar based on the statute of limitations. Plaintiff's motion was not filed within six months from the date of the agency's letter embodying its final decision to deny plaintiff's demand for payment, as required under the Act, and no conduct warranting tolling of the limitations period under Code § 8.01-229(D) was committed. The trial court's judgment is affirmed.

Read More »

CARTER v. COMMONWEALTH

Defendant's conviction for assault on a police officer in violation of Code § 18.2-57(C), under circumstances where there was no showing that he had the present ability to inflict bodily injury, is affirmed. The applicable definition of assault does not require that an assailant have the actual ability to inflict bodily harm.

Read More »

ZELNICK v. ADAMS

In litigation concerning legal services provided on a minor's behalf, the trial court erred in holding that because the minor was approaching the age of majority he had a legal right to approve a retainer agreement before it could become effective, but correctly held that services provided thereunder were not necessities where the minor was less than one year from attaining the age of majority and counsel was aware that he would not be eligible to receive the trust distributions at issue for at least another 17 years. Under these circumstances, postponing the services would not have compromised the minor's rights. The trial court's judgment is affirmed.

Read More »

PETTUS v. GOTTFRIED, et al.

In a wrongful death case alleging medical negligence it was error for the trial court to receive certain portions of deposition testimony from treating physicians offered by the defense that were not based upon reasonable medical probability. Arguments concerning waiver of objections by offering proof of the same nature and the impact of Code § 8.01-399 on proof relating to medical diagnoses and treatment are also discussed. The judgment is reversed and the case is remanded.

Read More »

VASQUEZ, et al. v. MABINI

Because expert testimony concerning damages in a wrongful death case was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken. The defendants made a timely motion to strike the evidence and did not waive their objections, and the trial court erred in denying their motion. Since no error is assigned to the jury's finding for the plaintiff on the issue of negligence, the judgment is reversed and the case is remanded for a new trial limited to the issue of damages.

Read More »

MARTIN v. ZIHERL

In a private tort suit alleging transmission of herpes virus in consensual sexual conduct between unmarried adults, the trial court erred in sustaining a demurrer based on prior Virginia case law barring recovery for injuries suffered in private sexual conduct between consenting unmarried adults that was illegal under the fornication statute. Virginia Code § 18.2-344, which prohibits sexual intercourse between unmarried persons, is unconstitutional under Lawrence v. Texas, 539 U.S. 558 (2003), as an infringement of the Due Process rights of adults to engage in private sexual conduct. The judgment is reversed and the case is remanded.

Read More »

LZM, INC. v. VIRGINIA DEPT. OF TAXATION

In a dispute concerning the collection and remittance of sales tax on charges for portable toilet pumping services, the trial court did not err in holding that the true object test embodied in 23 VAC 10-210-4040 applies to lease/service transactions, or in concluding that the maintenance contract exemption embodied in Code § 58.1-609.5 was inapplicable, where those services were inseparable from the taxpayer's toilet rental transactions. Further, the trial court's factual misstatements did not produce a judgment contrary to the testimony and stipulated facts. The judgment is affirmed.

Read More »

CORRELL v. COMMONWEALTH

In a trial for felonious abuse or neglect of an incapacitated adult in violation of Code §§ 18.2-33 and 18.2?369, the evidence supported a finding beyond a reasonable doubt that the defendant guardian's failure to obtain timely medical treatment for her mother's chronic starvation, dehydration, and infected decubiti constituted knowing and willful conduct resulting in a serious threat to health and safety, and that the pneumonia ultimately causing her mother's death was a foreseeable and expected consequence of such conduct. The Court of Appeals' judgment upholding the defendant's conviction is affirmed.

Read More »

DRINKARD-NUCKOLS v. ANDREWS, et al.

In a medical malpractice case, the trial court did not err in admitting evidence, over the plaintiff's objection, concerning what the defendant doctors expected from other physicians regarding the interpretation of an x-ray, thereby suggesting that physicians other than the defendants were negligent, where plaintiff presented testimony of the same nature in her case-in-chief. Under these circumstances, plaintiff's objection was waived and Code § 8.01-384(A) does not require a different result. The judgment is affirmed.

Read More »

CAPELLE, et al. v. ORANGE COUNTY, et al.

The circuit court erred in holding that zoning provisions in a county code permitted construction of an access road to transport materials mined under a special use permit on land zoned for agricultural use across another portion of that land that was zoned for residential use. The judgment of the circuit court regarding the proposed access road is reversed and final judgment is entered.

Read More »

HUDSON v. JARRETT, et al.

The trial court erred in granting intervention to a stevedore company and its insurer in a tort action by one of the stevedore's employees against another stevedore and its employee, and erred in dismissing the action pursuant to the exclusive remedy provision of the Workers' Compensation Act. Neither stevedore had a contractual relationship with the marine terminal where they operated sufficient to make their employees statutory fellow employees, and the intervenors failed to show that their asserted federal lien claim was a right involved in the employee's tort action. The judgment is reversed and the case remanded for further proceedings.

Read More »

NATIONAL BANK OF FREDERICKSBURG v. VIRGINIA FARM BUREAU FIRE AND CASUALTY INS. CO.

The trial court correctly ruled that, when the owners of a vehicle covered by insurance failed to renew the policy by timely payment of the premium, it expired and the bank holding a security interest in the vehicle had no contractual rights against the insurer, even though the policy contained a ?union mortgage clause? specifying the bank as a lienholder. The bank's rights under the clause were subject to the terms of the original policy; thus, the renewal declaration sent to the bank was ineffectual to create new insurance in the bank's favor where no contract of insurance existed between the insurer and the insureds. The judgment is affirmed.

Read More »

HINKLEY v. KOEHLER, et al.

In a medical malpractice action, the circuit court erred in concluding that one of the defendants? witnesses was qualified under Code § 8.01-581.20(A) to give expert testimony with regard to the standard of care because this witness had not had an active clinical practice in the defendant doctors? specialty or a related field within one year of the alleged negligence. Because this error was not harmless, the judgment of the circuit court is reversed and the case remanded for a new trial.

Read More »

COLLINS v. COMMONWEALTH

The trial court correctly revoked a defendant's suspended sentence after he committed a second offense while free on bond pending appeal of the original conviction. The second offense violated the condition of good behavior to which the suspension of the sentence and probation imposed for the prior offense were subject. Because defendant was subject to a final judgment of conviction and sentence on the initial charges at the time second offense, the trial court's revocation of the suspension was mandatory under Code § 19.2-306(C). The Court of Appeals' judgment upholding the trial court's ruling is affirmed.

Read More »

JEFFERSON v. COMMONWEALTH

The Court of Appeals of Virginia did not err in affirming a circuit court's judgment revoking a suspended sentence where the sentencing order was entered at the revocation hearing nunc pro tunc as of the date of the original sentencing hearing. The judgment is affirmed.

Read More »

EL-AMIN v. COMMONWEALTH

In a prosecution for possession of cocaine with intent to distribute and possession of a firearm while in possession of a controlled substance, the trial court did not err in refusing to suppress evidence found as a result of a pat-down search of the defendant following discovery of a hand gun on the person of one of his three companions while they were located in a known high crime area. Under these circumstances, the search was reasonable given legitimate safety concerns of the investigating officers. The defendant's convictions are affirmed.

Read More »

MORRIS v. COMMONWEALTH

The trial court correctly concluded that a flare gun is a firearm and properly convicted the defendant of knowingly and intentionally possessing or transporting a firearm after having been convicted of a felony, in violation of Code § 18.2-308.2, as well as for misdemeanor brandishing of a firearm in such manner as to reasonably induce fear in the mind of another, in violation of Code § 18.2-282. The Court of Appeals' judgment denying defendant's appeal from these convictions and upholding defendant's conviction in the trial court is affirmed.

Read More »

MAYFIELD v. COMMONWEALTH

Trial court did not err in denying appellant?s motion to suppress as the search of a tissue appellant intentionally and voluntarily discarded during a consensual encounter with police and the officer?s recovery of the tissue and its contents was not an unreasonable search or seizure

Read More »

RICKS v. COMMONWEALTH

No error in trial court's finding that the affidavit contained sufficient allegations to constitute probable cause for the issuance of the challenged search warrant and that the evidence was sufficient to prove appellant exercised constructive possession of the firearm

Read More »
Scroll To Top