‘Two-Step’ Interrogation Guidelines Set

Appeals court allows do-over for procedural defaults

By Deborah Elkins
Published: March 27, 2013
Tags: Civil Procedure, Judge Glen A. Huff, Judge Robert J. Humphreys, Judge Robert P. Frank, Judge Stephen R. McCullough, Judge William G. Petty, Virginia Court of Appeals

Some procedural errors that may have meant dismissed appeals will no longer be fatal, a divided Virginia Court of Appeals said today in a trio of en banc cases. Specifically, in two cases, the court allowed amendments to retool assignments of error and to specify page references to show an appellate claim had been preserved. [...]

Good Faith Omission Avoids Suppression

By Deborah Elkins
Published: February 27, 2013
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

On the commonwealth’s appeal, the Court of Appeals reverses and remands the trial court’s suppression of evidence based on a search warrant obtained without the officer indicating on the form that an informant named in the affidavit was his source of information; the trial court erred in not applying the good faith exception to the [...]

Partly-Lit Brake Light Was ‘Defective’

By Deborah Elkins
Published: January 7, 2013
Tags: Judge Stephen R. McCullough, Search & Seizure, Virginia Court of Appeals

Although a deputy admitted he could see the brake lights illuminate on defendant’s vehicle, he nevertheless could stop the vehicle for a defective brake light based on a portion of the multi-part light being unlit; the Court of Appeals upholds denial of defendant’s motion to suppress marijuana found in defendant’s vehicle. A deputy conducting surveillance [...]

No Guilty Plea Withdrawal on Drug Charge

By Deborah Elkins
Published: December 19, 2012
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

A trial court did not abuse its discretion in refusing to allow defendant to withdraw his guilty plea to a drug distribution charge, the Court of Appeals holds. In exchange for defendant’s guilty plea, the prosecution agreed to nolle prosequi two firearm charges and to reduce the drug distribution charge from a third offense to [...]

Mom’s Huffing Not Felony Neglect

By Deborah Elkins
Published: December 6, 2012
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

The Court of Appeals reverses mother’s jury trial convictions for felony child neglect for insufficient evidence; mother huffing computer cleaner in her apartment in the presence of her two young sons does not show the boys were exposed to a probability or substantial risk of injury required for conviction under Va. Code § 18.2-371.1(B)(1). Mother [...]

Joint Title for Inherited Parcel Upheld

By Deborah Elkins
Published: November 29, 2012
Tags: Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

Although husband testified at trial that a parcel of property was inherited by his relatives and he did not realize wife’s name was on a loan and deed for the property, both parties also stated on the record that they wanted the trial court to leave the property jointly titled and not do anything else [...]

Proximity Insufficient for Possession

By Deborah Elkins
Published: November 29, 2012
Tags: Criminal, Judge Stephen R. McCullough, Virginia Court of Appeals

Defendant is entitled to reversal of her conviction for felon possession of ammunition, the Court of Appeals says; no record evidence shows defendant was even aware of the ammunition concealed in a magazine within a holster pouch; defendant had only known the car owner a few days and no evidence shows she had ever been [...]

Consent Order Did Not Control Child Support

By Deborah Elkins
Published: November 20, 2012
Tags: Domestic Relations, Judge Stephen R. McCullough, Virginia Court of Appeals

Although the parties’ consent order included a detailed revision of their custody arrangement, provided for payment of GAL fees and stated that “all other provisions” of the final divorce and the PSA “not inconsistent” with the consent order would remain in effect, the Court of Appeals agrees with husband that the trial court erred in [...]

JDR ‘Dispositional Order’ Was Final

By Deborah Elkins
Published: November 9, 2012
Tags: Civil Procedure, Judge Stephen R. McCullough, Virginia Court of Appeals

A “dispositional order” transferring legal and physical custody of appellant’s grandchild to DSS and granting visitation to the child’s mother, after appellant was observed passing fraudulent prescriptions in the child’s presence and was charged with prescription fraud, was a “final order” and the circuit court had no jurisdiction to review the JDR order because appellant [...]