Appeals court allows do-over for procedural defaults

Preliminary Breath Test Inadmissible, Not Harmless

By Deborah Elkins
Published: May 16, 2013
Tags: Judge Stephen R. McCullough, Traffic Offenses, Virginia Court of Appeals

At defendant’s trial for reckless driving, the trial court erred in admitting testimony of the preliminary breath test with a BAC of 0.04 when no evidence was presented concerning whether such a result signified that the driver was intoxicated and driving recklessly, and the Court of Appeals reverses defendant’s conviction. We further hold that, in [...]

Guardian’s Appeal Fails, Parent Reclaims Child

By Deborah Elkins
Published: May 3, 2013
Tags: Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

The Court of Appeals affirms the trial court returning child to mother and dissolving two protective orders after mother relocated to another state; mother has maintained stable employment and housing with only one positive drug screen in 2012 after completing a drug court program; although guardian’s arguments lack merit, we decline to impose attorney’s fees [...]

Complaint Stricken After Husband’s Appearance

By Deborah Elkins
Published: May 3, 2013
Tags: Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

Although wife tried to use a 2012 statute allowing divorce by deposition or affidavit in certain circumstances, husband, who was living in Saudi Arabia when served, entered a special appearance and moved to dismiss on the ground of bigamy, and the Court of Appeals affirms the trial court order striking wife’s divorce case. In 2012, [...]

Employer Had No Duty for Employee Parking

By Deborah Elkins
Published: April 25, 2013
Tags: Judge Stephen R. McCullough, Virginia Court of Appeals, Workers' Comp

The Court of Appeals affirms the commission’s determination that employee’s fall in her employer’s parking lot is not compensable: employer was not responsible for maintaining the lot and did not control employee’s selection of parking places. Employee worked as an overnight receptionist at a 24-hour emergency veterinary clinic. At the conclusion of her shift at [...]

No Guilty Plea Withdrawal After Colloquy

By Deborah Elkins
Published: April 22, 2013
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

A defendant was warned in a plea agreement and by the trial court that the court did not have to accept the prosecutor’s recommended sentence of eight years for sexual offenses against an 11-year-old girl that carried possible multiple life terms plus 20 years, and the Court of Appeals affirms the trial court’s denial of [...]

Wife’s Summary Contempt Conviction Reversed

By Deborah Elkins
Published: April 15, 2013
Tags: Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

A trial court erred in holding wife in summary contempt for her “vindictive” testimony describing her husband’s threats against her during a custody exchange, as the court’s finding that wife was untruthful depended on husband’s sound recording of the exchange and testimony from an observer arranged by husband; the en banc Court of Appeals further [...]

Appeal Dismissed for Inexact Page References

By Deborah Elkins
Published: April 1, 2013
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

A defendant who repeatedly failed to correct his omission of “exact” page references in his petition for appeal has his appeal dismissed by the en banc Court of Appeals. Compliance with the exact reference requirement of Rule 5A:12(c)(1) enables this court to identify the argument of the appellant at the trial level and the ultimate [...]

Amendment Allowed for ‘Exact’ Page Reference

By Deborah Elkins
Published: April 1, 2013
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

After allowing petitioner to amend his timely petition for appeal to remedy an “exact reference” defect under Rule 5A:12(c)(1), the en banc Court of Appeals grants defendant an appeal and affirms his conviction for the abduction and aggravated malicious wounding of his wife, whom he beat with his fists and an iron, leaving her permanently [...]

Amendment Allowed for Timely Appeals Petition

By Deborah Elkins
Published: April 1, 2013
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

The en banc Court of Appeals says a petitioner may amend his timely filed petition for appeal to state an assignment of error that complies with court rules, and the appellate court grants his petition; however, the court upholds his conviction on two counts of attempted capital murder of a law enforcement officer, based on [...]