Justice Cleo E. Powell

Sep 20, 2019

Supreme Court gives outline for Batson challenges

The Supreme Court of Virginia offers a tutorial on Batson challenges to jury strikes while affirming a first-degree murder conviction in a case decided last month. The justices split 5-2 on whether a prosecutor’s race-neutral explanation for striking a juror was implausible. The decision upheld the life sentence imposed on a Prince William County man […]

Sep 18, 2019

Professional discipline is usable for impeachment

Lawyers need to choose their medical experts with care. That’s a key lesson from a new Supreme Court of Virginia decision, one lawyer said. The justices refused to overturn a patient’s verdict even though the jury was told that a defense expert had been reprimanded for lapses in his practice. In affirming an $800,000 verdict […]

Sep 17, 2019

‘Batson’ challenge properly rejected in murder case

Where counsel made a Batson challenge after the Commonwealth used a peremptory strike to excuse an African-American juror from defendant Bethea’s retrial on a first-degree murder charge, the lower courts correctly determined the strike was not racially motivated. Defendant’s conviction is affirmed. ‘Crucial concession’ The prosecutor gave a race-neutral reason for exercising the challenge:[...]

Sep 16, 2019

Altered assignments of error disapproved in trust case

Even though appellant altered her assignments of error after her appeal petition was granted, the appeal will be heard. The original assignments of error were adequately addressed on brief. As to the merits, the circuit court incorrectly delegated its authority to approve or deny the final accountings submitted by a trustee and conservator to the […]

Aug 12, 2019

Statute of limitations defense was jury issue

The circuit court should have set aside a $3 million award in this business dispute because it did not instruct the jury on appellant’s statute of limitations defense. Background Ferguson distributes Trane heating and cooling equipment. Ferguson made a rebate deal with Trane, under which Ferguson would qualify for “claim-backs” if it sold the equipment […]

Jul 15, 2019

No speedy trial tolling without objection to continuance

Where defendant did not object when his trial date was moved beyond the statutory five-month speedy trial period, the delay was attributable to defendant and his convictions are affirmed. Background Young was arrested for robbery, held without bond and later indicted for that crime and several others. Under Code § 19.2-243, a jailed felony defendant […]

Jul 8, 2019

Any error in evidence proffer was harmless

Any error relating to the prosecutor’s proffer of evidence at appellant’s probation revocation hearing was harmless. The proffered evidence, a newspaper article that quoted the victim’s description of appellant’s actions, was not the only evidence of the nature of the acts. The major violation report provided to the court noted convictions for abduction by force/intimidation, […]

Apr 23, 2019

High court, 4-3, approves ‘rehabilitated’ med-mal juror

The Supreme Court of Virginia, by a 4-3 vote, has deferred to a trial judge who allowed a juror to remain trial-eligible, despite the man’s expressed doubts about the fairness of medical malpractice litigation. The decision leaves in place a victory by a doctor in a Richmond trial involving complications from knee surgery. The potential […]

Jan 14, 2019

Trustees must go beyond four corners of document

Foreclosure trustees have fiduciary duties that go beyond those enumerated by a deed of trust, the Supreme Court of Virginia has ruled in a split decision, reminding trustees that they must also consider their duty to serve as a neutral arbiter between a lender and a borrower. Justice Cleo E. Powell, writing for the majority, […]

Jan 12, 2019

Dangerous dog’s custodian liable for veterinarian bill

Even though a dog in appellant’s custody may have begun to attack a neighbor’s dog while on appellant’s property, the circuit court correctly ruled that the dangerous dog statute’s safe harbor provision does not apply. There was sufficient evidence to find that the “final element” of the attack, in which the neighbor’s dog was seriously […]

Jan 8, 2019

Trustee owed implied duties under trust deed

Where a trustee accepted a $20,900 bid at a foreclosure sale for property assessed at $436,800, the debtor has stated a claim for breach of implied fiduciary duties arising from a deed of trust. The circuit court erred by characterizing the debtor’s claim as sounding in common law negligence, and further erred by ruling that […]

Oct 15, 2018

High court upholds arbitration win for Alexandria lawyer

The Supreme Court of Virginia will not disturb an arbitration decision that absolved an Alexandria attorney of ethics accusations and slammed a plaintiff with more than $900,000 in sanctions. The decision by five justices could end a protracted battle over a daughter’s share of her father’s financial legacy. The litigation involved several court challenges and […]