Undisclosed Victim Interview Violates Brady

Prior Depression Defense Bars New Termination Claim

By Deborah Elkins
Published: May 29, 2013
Tags: Judge Jean Harrison Clements, Virginia Court of Appeals, Workers' Comp

With an appeal pending from a deputy commissioner’s denial of its 2009 application to terminate benefits, employer filed a second protective application in 2010; the Court of Appeals says the law of the case doctrine bars the second application: employer had opportunities to argue Ilg v. United Parcel Serv., 284 Va. 294 (2012), to the [...]

Prior Md. Crime Is ‘Violent Felony’

By Deborah Elkins
Published: May 16, 2013
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

Defendant’s prior conviction under a Maryland statute for assault with intent to maim qualifies as a predicate violent offense under Va. Code § 18.2-308.2, and the Court of Appeals affirms defendant’s conviction of possession of a firearm after being convicted of a violent felony. Under Code § 19.2-297.1(B), the commonwealth could rely on defendant’s Maryland [...]

Employer Had Too Few Employees

By Deborah Elkins
Published: April 25, 2013
Tags: Judge Jean Harrison Clements, Virginia Court of Appeals, Workers' Comp

The Court of Appeals affirms a commission finding that employer lacked the requisite three employees for jurisdiction under Va. Code § 65.2-101: the record supports that at most two employees were required considering the established performance of the work of the business. Employer hobby shop operates daily with one store clerk on the premises, normally [...]

Defendant Talked After Asking for Lawyer

By Deborah Elkins
Published: November 19, 2012
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

Although the trial court erred in holding defendant did not invoke his right to counsel when he said, “Let me talk to my lawyer,” defendant reinitiated conversation with a detective and his statements related to being a suspect in an attack on a woman were admissible; the Court of Appeals also says prosecuting defendant for [...]

Reopening Trial Fixes Certificate Problem

By Deborah Elkins
Published: October 25, 2012
Tags: Criminal, Judge Jean Harrison Clements, Melendez-Diaz, Virginia Court of Appeals

Although defendant had yet to be sentenced on his marijuana and firearms convictions when the Melendez-Diaz decision came down, the trial court did not err in allowing the commonwealth to reopen its case and bring in the forensic scientists who signed certificates of analysis, and the Court of Appeals upholds defendant’s convictions. We find the [...]

Bigamist Waived Objection

By Deborah Elkins
Published: October 15, 2012
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

Defendant cannot set aside his bench trial convictions for bigamy and perjury by asserting a new theory of inadmissibility for another state’s marriage record, the Court of Appeals says: defendant did not raise his argument under Va. Code § 8.01-390(A) in the trial court precluding its consideration on appeal. Defendant married first wife in 2001 [...]

Post-Sentence Plea Withdrawal Denied

By Deborah Elkins
Published: October 15, 2012
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

Defendant cannot withdraw her guilty plea based on misunderstanding the three strikes rule, the Court of Appeals says; defendant’s arrest warrant expressly charged a felony offense and defendant admitted stealing the items, and no manifest injustice appears as required for post-sentence plea withdrawal under Va. Code § 19.2-296. Defendant has two convictions for petit larceny. [...]

Sleeping No Defense to Indecent Proposition

By Deborah Elkins
Published: October 4, 2012
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

The Court of Appeals says defendant is not entitled to reversal of his conviction for taking indecent liberties with a minor based on the trial court’s denying his request for a sleep disorder expert; the evidence proving his indecent proposal to his girlfriend’s teenage daughter is sufficient and his allegedly being asleep during intercourse is [...]

Collision Was Assault and Battery

By Deborah Elkins
Published: April 12, 2012
Tags: Criminal, Judge Jean Harrison Clements, Virginia Court of Appeals

The Court of Appeals affirms defendant’s conviction for assault and battery of a law enforcement officer; the dashcam video and testimony about defendant’s manner of driving during a 13-mile chase proved the intent required for assault and battery under Va. Code § 18.2-57(C). At 9:00 a.m. one Sunday morning in September, a Department of Game [...]