Alan and Lois Biddison live on Mathews County land that has been in the family for many, many generations for as long as records have been kept in the county, according to Mrs. Biddison. The five-acre property features a significant frontage on a body of water called Milford Haven, which eventually stretches out into the
The Biddisons werent the only ones who appreciated the view; the owners of the neighboring parcel built a marina, and in 2007 applied for a VMRC permit to create new piers and slips, to dredge 3,700 cubic yards from the bottom lands, and to deposit the spoil material somewhat inland from the shore. The plans for the spoil site called for water runoff to return to Milford Haven by means of a ditch that divided the marinas property from the Biddisons.
Trouble ensued, as it usually does before appellate opinions surfaced. After the dredging, boats form the marina began to skim the Biddisons beach while headed out to the bay. That produced a significant shoreline wash, and prompted the owners to curtail the use of their property for swimming. And the water running downstream from the spoil site evidently threatened to overwhelm the boundary ditch. The Biddisons accordingly opposed the VMRC-permit request.
The commission issued the permit anyway, so the Biddisons appealed to circuit court. There, they met with unexpected failure when the trial court ruled that they werent aggrieved parties who are entitled to appeal. The court dismissed their appeal. Yesterday, in Biddison v. VMRC, the Court of Appeals reversed and reinstated the case. It holds that an adjoining landowner is precisely the sort of interested party that the General Assembly had in mind when it empowered aggrieved parties to appeal. While the court expresses no views as to the ultimate merits of the case, it holds that the conditions alleged by the Biddisons were sufficient to grant them standing to appeal, since the marinas activities affected their riparian rights. That gives them an immediate, pecuniary and substantial interest in the litigation.
Another standing issue arises in the domestic relations context. This one implicates the most recent amendment to the Constitution of Virginia. The case is Damon v. York.
Mother and father became well, a mother and a father in 1996 when their daughter was born. Connubial bliss proved all too short-lived, however, and the marriage ended in divorce four years later. Three years after that, mother furnished a possible explanation for the demise of the union when she traveled to
Since the mother had custody of the little girl, the new marriage gave the child a somewhat-unorthodox step-parent arrangement. This arrangement, too, proved less than durable; the couple separated not long after the Canadian marriage. The girl shared a household with her step-mother for a total of 21 months, including about a year before the Canadian trip.
When this union fell apart, the childs father and maternal grandmother (both of whom felt that they had been alienated form the child by the stepmom) sought custody in
The court decided that, under
The court takes up the sad case of
His widow filed a claim for death benefits, claiming that the decedent had led her to believe that he was going to deliver some billing statements to the companys bookkeeper. If true, that makes it a work-related trip, and therefore compensable.
The problem is that there was no corroboration at all of this less-than-definitive assertion. The bookkeeper didnt testify that the decedent was expected to drop by. The widow acknowledged that the decedent didnt usually ride his motorcycle on business matters. The commission ultimately ruled that the widow had failed to meet her burden of showing that the death arose out of and in the course of the employment.
As an appellate lawyer, I always cringe just a little when I read a sentence like this one in the introductory paragraph of an appellate opinion, such as Brittle v. Commonwealth: Because Brittles questions presented are procedurally defaulted, we affirm his conviction. I expect to hear ominous background music when I see words like that. Procedural defaults are the bane of appellate practice; they are the primary reason why many trial lawyers absolutely hate going into appellate courts.
They shouldnt hate it; appellate practice is extraordinarily rewarding and intellectually challenging. In this appeal, a very capable appellate advocate (my friend Jane Chittom, the Appellate Defender for the Commonwealth) confronted the challenge of appealing an issue that clearly had not been raised at trial, in violation of Rule 5A:18.
And yet Jane got a writ; a rare victory in a criminal appeal. She chose to grab for one of the two thin lifelines in the contemporaneous objection rule. The first, for good cause shown, wasn’t helpful, but the other one to enable the Court of Appeals to attain the ends of justice just might do the trick.
Brittle was convicted of a third-offense petit larceny. The first two offenses are misdemeanors, but by the time you get to #3, youre up in the land of felonies. At trial, the prosecutor offered certified copies of not two but three priors; one in 2005 and the other two from 1997. The two copies from 97 were demonstrably inadmissible because of minor but fatal defects (such as the absence of the judges signature on one of the copies), but Brittles trial lawyer evidently neglected to object. At the close of the evidence, the same lawyer challenged the sufficiency, but made no mention of the infirmities in the copies.
And that, my loyal readers, is a waiver. As we all know, in order to preserve an issue like that for appellate review, it must be timely raised in the trial court, and the trial lawyer didnt do that. Now, on to that ends-of-justice exception.
This is a very important opinion for appellate lawyers, in that it contains a detailed explication of the ends-of-justice exception in criminal cases. The court notes that there are two components to the rule that the trial court made an error, and that a grave or manifest injustice will occur or the appellant will be denied essential rights.
That language isnt exactly a detailed recipe for easy legal analysis, but it does illustrate one point well: There has to be more than simply a demonstrable error below. Otherwise, every appeal would permit invocation of the exception, and there would be nothing left of the contemporaneous objection rule.
The court examines prior caselaw on this exception, and comes up with several helpful criteria. The appellant has to prove more than just that the prosecution failed to prove an element of the offense. Manifest injustice includes convicting someone of conduct that isnt an offense at all; it also includes a case in which the trial court instructed the jury on three of the necessary elements of the offense, but not the fourth. This is a different animal from the usual sufficiency analysis; the court is looking for things like evidence of actual innocence in the record. Under such circumstances, an appellant might expect a review on the merits of his otherwise-defaulted arguments.
That doesnt happen here. The defects in the copies didnt render Brittle actually innocent. Indeed, there was other evidence, albeit indirect, in the record to support those convictions. (In the 2005 conviction, Brittles pleaded guilty to second-offense larceny. That wouldnt cut it in a sufficiency analysis, but in this context, it helps to defeat Brittles claim, since its a judicial admission that he has a prior conviction.) In the end, the court declines to apply the exception, and affirms the conviction because Brittles objections to the conviction records have been (cue the ominous music) procedurally defaulted.