This morning, March 3, 2005, the Supreme Court of Virginia handed down thirteen published opinions on a variety of topics. Two additional cases were decided by order, one of which is published. All of the cases decided today are analyzed below.

Thoughts on Today’s Rulings

Perhaps the biggest news from today’s opinions from the Supreme Court is what the Court didn’t decide. For the second consecutive session, the Court passed Muhammad v. Commonwealth, the sniper appeal, onto the next session without deciding it. The case was argued in November. Those following the case will now circle the next opinion day, April 22, in anticipation of a ruling on the case. This second consecutive deferral is highly unusual for the Court, but this is admittedly a highly unusual case.

The Court also postponed a ruling on XL Specialty Ins. Co. v. VDOT, a civil case involving an important issue of sovereign immunity. In that case, one of the issues briefed and argued to the court involves whether the Commonwealth and its agencies are immune from contract liability. Sovereign immunity for tort liability is nothing new, but the Supreme Court has never held that this immunity extends to contract claims against the state. If that immunity is established, it could have a dramatic effect on government contracts, many of which the state could disregard without fear of court enforcement action. This case, too, will presumptively be decided in April.

Today will probably be best known for the first Supreme Court treatment of the Sexually Violent Predator Act. The Court takes pains to analyze the statutory scheme in the McCloud opinion, and that one will probably be cited most often in future cases. The jurisdictional issue in the Townes case is sufficiently unique that the fact pattern probably won’t recur in future cases. As well, McCloud and Allen both turn in part on an evidentiary issue (who qualifies as an expert for the defendant) that has been superseded by statute. Those cases certainly contain other issues that will be cited from time to time, but their legacy for the field of expert testimony in this context will be short-lived. The analysis of expert testimony in Allen cites expert testimony principles that will be familiar to trial lawyers in other fields.

The theme of this morning’s opinions is overwhelmingly criminal. The Court decided five criminal appeals, two death penalty habeas corpus cases, and the three SVPA cases (which are quasi-criminal) out of the fifteen rulings issued today.

In the civil context, the Court affirmed one decision and reversed two; the other two were affirmed in part and reversed in part. One may detect a refrain in several of these opinions: “We don’t write the damned things; we just interpret them.” The Court exercises its customary degree of restraint from judicial activism in a number of cases where the parties invited them to do some judicial legislating, or at least rewriting. For example, the Court specifically declines to craft a judicial exception (as the trial court had done), based on public policy, to the protection afforded spendthrift trusts in Jackson. In doing so, the Court notes that exceptions are contained in the statute authorizing such trusts, and rules that the Court has no authority to rewrite the statute to include another exception. in Bentley Funding, the Court reverses an expansive definition of the word Property in a contract, holding that the courts could not rewrite the contract for the parties.

Even the dissenters get into the act: Justice Agee understandably chides the majority in City of Galax for “effectively rewrit[ing] Galax City Code §160-93(E) . . .” One could easily argue that the ordinance in issue would read the way the majority held today, by eliminating the word designated, so that it merely related to property “fronting on streets.” This, the dissent points out, is exactly what the majority decision has done by surgically removing any meaning from the word designated.

The session was also notable for the number, and spirit, of dissents. One of the Court’s hallmarks is its remarkable unity of voice. The overwhelming majority of the Court’s opinions are decided by unanimous opinion or order. But this time, one or more justices swims against the tide in five of the fifteen decisions handed down today. The argument conferences in January must have been something to behold.

While the dissents are never strident, they sometimes display more than a tinge of conscience. This is nowhere more evident than in Justice Koontz’s lone dissent in Emmett, the death penalty case where the majority acknowledges that jury instructions were wrong, but nonetheless refuses to remand for resentencing. As Justice Koontz writes, “While it may not be reasonable to require a perfect trial in all cases, a death case is materially different from all other criminal cases.”

One is accustomed to seeing litigants, and sometimes even justices, arguing over dollars or property rights. But as this urgent dissent notes, there is much more at stake here. Of course, as with most such cases, there will be another petition, another argument, another courtroom.


Green v. Ingram – The Court permitted a wrongful death case to be maintained against a police officer who killed a person inside a house when he fired “frangible” shotgun rounds at a locked door in order to open it to execute a search warrant for drugs and weapons. After five rounds were fired into the area of the door’s deadbolt lock, officers used a battering ram to open the door, and found the decedent lying dead on the floor, her body shielding her unharmed three-year-old child.

The Court explained that frangible rounds are made of compressed zinc powder, and are designed to disintegrate when they strike metal. But these rounds were fired at a wooden door. The decedent, a visitor in the home, was killed by one or more fragments shot from the gun, after they penetrated the door.

The decedent’s administrator sued the SWAT team captain who planned and led the raid, and the sergeant who fired the fatal rounds. Both were sued under a theory of gross negligence, recognizing that they enjoyed immunity from simple negligence under the line of cases that includes Colby v. Boyden. The administrator also sought punitive damages against both officers.

At trial, the court struck the plaintiff’s evidence against the captain, but allowed the case to go to the jury on the claims against the sergeant. The jury was unable to reach a verdict, and the trial judge then struck the plaintiff’s evidence as to the sergeant as well. The administrator appealed the ruling in favor of the sergeant.

The Supreme Court reversed this finding, holding that the allegation of gross negligence was properly a jury issue. Viewing the evidence in a light most favorable to the administrator (since the trial judge had taken the issue away from the jury), the Court held that the evidence could prompt a jury to find that the sergeant disregarded his training and the proper use of the frangible rounds, and fired knowing that a person might have been on the other side of the door.

The Court then turned to the claim for punitive damages. It noted the difference between gross negligence (the want of even scant care) and the willful and wanton conduct, recklessness, or intentional conduct that must be shown in order to recover punitive damages. Citing a 1999 decision, the Court noted that in order to create a jury issue on punitive damages, the administrator had to establish “actual or constructive consciousness that injury will result . . .” The sergeant knew that a person might be on the other side of the door; that opened him up to the possibility of a gross negligence finding for indifference to others. But he did not actually or constructively know someone was there. That precluded punitive damages. The court accordingly sent the case back to the trial court for a new trial on the compensatory damage claim alone.

This case serves to remind the practitioner that an allegation of gross negligence is not sufficient to enable a plaintiff to claim and recover punitive damages. Willful and wanton conduct, a knowledge that one is going to do harm, must be pleaded and shown in order to recover punitives.

Civil litigation

Bentley Funding Group LLC v. SK&R Group LLC – This case, revolving around the rights to over $300,000 in escrow funds, involves fairly straighforward issues of contract interpretation and construction. The Court reaffirms that unambiguous documents do not need to be interpreted; they are merely enforced according to their plain terms. But the real meat of this decision is the Court’s treatment of the doctrine of judicial estoppel (sometimes referred to as “estoppel by inconsistent positions”).

The Court begins with a first-impression discussion of the standard of review for the application of judicial estoppel. In accord with findings from other jurisdictions, the Court determined that the application of the doctrine is reviewed for abuse of discretion. The opinion next discusses the four elements required for application of the doctrine against a party: (1) The party must be taking a stance that is inconsistent with a position it took in a prior proceeding. (2) The position must be one of fact, not of law or legal theory. (These two elements had been unambiguously reaffirmed last year in Lofton Ridge LLC v. Norfolk Southern.) (3) The parties to the two proceedings must be the same. (The Lofton Ridge opinion also mentions this element, although it recognized exceptions not applicable here.) (4) The party adopting the inconsistent position must have succeeded on the merits of the relevant theory in the earlier case.

This last element is the key to today’s holding. One of the reasons for the doctrine is to avoid inconsistent judicial determinations, engendered by a party’s assertion of inconsistent theories in successive suits. But where a party takes a position in an earlier proceeding and loses on that argument, common sense (and, thankfully, Virginia law) do not weld him to that unsuccessful strategy in the next case. The party is free to accept the earlier court’s ruling and file his later suit in acknowledgement of the incorrectness of his earlier position.

And that is what happened here; the Court found that in the earlier case, a bankruptcy proceeding, the court had “placed no reliance on” the allegedly inconsistent assertion. That meant there was no reason to apply the doctrine, and the trial court erred in using it below. The case was reversed and remanded for a determination of the underlying issue on the merits.

Sexual predator commitment

The Court decided three cases involving the recent Sexually Violent Predators Act, which prescribes procedures to be used to treat sexually violent predators in an inpatient setting.

The Act applies to inmates who are serving terms of incarceration for sexually violent acts. Prior to the inmate’s anticipated release date, if the Director of the Department of Corrections believes that the inmate might pose a danger if he is released as scheduled, it may seek a civil commitment for treatment. A psychiatrist is then appointed to evaluate the inmate and report his findings to a review committee. If that group believes commitment is warranted, it makes an appropriate recommendation to the Attorney General, who is authorized to file a petition for commitment in a circuit court. The inmate is entitled to appointed counsel and a mental health professional to assist him in his defense.

The trial court conducts a probable cause hearing; if appropriate, it certifies the petition for trial, at which either the inmate or the Commmonwealth may request trial by jury. The issue for the jury (or the trial judge, if appropriate) is whether the inmate meets the statutory definition of a sexually violent predator. If the jury so finds, then the trial judge determines the nature of appropriate treatment.

Of the three such cases decided today, one was decided on jurisdictional grounds; in Townes v. Commonwealth, the Court acknowledged that to be within the coverage of the Act, a defendant must be currently incarcerated for a sexually violent offense. As Townes had completely served his prison sentence for statutory rape, and was in prison for unrelated non-sexual crimes, the statute did not apply to him.

Two other such cases were decided on their merits. In the most detailed discussion of the statute and its procedural requirements, the Court affirmed a commitment and several evidentiary rulings in the commitment proceedings, in McCloud v. Commonwealth. The Court found that the trial court’s determination (that commitment was appropriate) was supported by the evidence adduced. It left to the trial judge’s discretion the admission of evidence related to the defendant’s history of sexual crimes, and affirmed (on the Commonwealth’s assignment of cross-error) the trial court’s decision to exclude evidence of institutional violations, since they were nonsexual in nature. The Court also declined to impose upon the Commonwealth a straw-man obligation; McCloud had argued that the Commonwealth should be required to propose alternative treatment methods, and then demonstrate that all such plans were inappropriate. The Court also noted that the statutory framework gives defendants certain protections normally afforded criminal defendants, but stopped short of calling the process quasi-criminal. Nevertheless, it is overwhelmingly likely, in light of the discussion in these three holdings, that trial courts will treat the defendant in many ways as though it were a criminal proceeding.

In the other SVPA case decided today, Commonwealth v. Allen, a sharply divided court affirmed a trial court’s denial of the Commonwealth’s commitment petition, affording deference to the trial judge’s assessment of the credibility of the expert witnesses presented by the two sides. The principal holding in this case relates to the trial court’s qualification of a Pennsylvania psychologist who was not licensed in Virginia (but whom the Court found otherwise eminently qualified). The Supreme Court ruled that the psychologist’s testimony was appropriately received, but noted that a subsequent statutory amendment would limit the applicability of its ruling. (Defense experts are now subject to the same standard of qualification as the Commmonwealth’s.) A parallel argument, raised on cross-error in McCloud, was ruled moot as a result of the amendment.

These cases represent the Court’s first discussion of this new statutory framework.


Jackson v. F&D Co. of Maryland – This decision reaffirmed the insulated position of spendthrift trusts, as they relate to claims of creditors of the beneficiary.

A woman’s will created two companion trusts, one for each of her sons. The trust for one son, Craig, was to get 75% of her residuary estate; the other trust, in favor of her son Bradford, would receive the other 25%. Both trusts were established as spendthrift trusts, to take advantage of statutory protections against the brothers’ creditors.

Bradford qualified as the executor of the will, and proceeded to divert over $100,000 from his brother’s larger trust, to his own use. He was removed as administrator and ordered to file a final accounting. But he never filed that accounting and never repaid the money. His bonding company paid off the defalcation, and was awarded a judgment against Bradford.

The bonding company then attempted to garnish the assets of Bradford’s trust to collect the money that Bradford had taken from his brother. In a hearing, the trial court essentially carved out a judicial exception to the statutory exclusion of such trusts from garnishment by creditors. It did so because, it found, public policy favored the creation of an excption to the provisions of the spendthrift statute. The trial court found it inconceivable that the public policy of the Commonwealth “would allow one beneficiary, through his or her misconduct, to deprive the other beneficiaries of their entitlements.” The trial court thus permitted the execution.

But today the Supreme Court reversed, holding that the courts are without authority to create an exception to a statute where the General Assembly had declined to do so. Finding that the trial court’s ruling “ignores the plain language of the will,” it noted that the spendthrift protections in the will could be avoided “only if a rule of law requires it.” Finding further that spendthrift provisions are to be liberally construed, it then observed that the General Assembly has created several specific exceptions from protection. Unfortunately for the bonding company, none of these exceptions fit Bradford’s actions. The Supreme Court reaffirmed that where the General Assembly creates a list within a statute, the courts are not free to add to that list, regardless of how compelling the circumstances may be.

Given the results occasioned by this case, it seems highly likely that the General Assembly will have occasion to consider legislation to address this omission in the 2006 session.

Criminal law

The Court decided five criminal appeals today, affirming three, remanding one for a new trial, and reversing the other completely. Viney v. Commonwealth – Viney was washing his car near an elementary school playground. He caught the eye of two girls who were playing there: He look at the girls; the girls looked at him. He looked down; the girls followed his eyes downward, at which point he exposed himself to them.

In the subsequent prosecution for indecent liberties, the trial court acknowledged that the Commonwealth had to show that the defendant had “made gestures to himself or to the child” in order to infer the required lascivious intent. The only proof of any gesture was when Viney made eye contact with the children and then looked down. The issue, then became as simple as this: Can one “gesture” by moving only his eyes?

Viney argued on appeal that the term gesture indicates a motion of the limbs, or the body as a whole. The Court disagreed, in memorable language. It cited a dictionary definition of gesture as “a movement usually of the body or limbs that symbolizes or emphasizes an idea, sentiment, or attitude.” It then reasoned, “While Viney apparently disagrees, we have little trouble concluding that the eyes are a part of the body and that they are used for non-verbal communicative purposes.” That meant that the eye movement qualified as a gesture, and the Court affirmed the trial court’s subsequent inference of lascivious intent. Viney’s conviction was affirmed.

This ruling may come as a surprise to many who perceive that a gesture necessarily involves a movement of the arms or hands. But the dictionary definition proved dispositive here; there is no way to earnestly deny that “the eyes are a part of the body.”

Lewis v. Commonwealth – During a murder trial, Lewis offered an alibi witness who admittedly had a felony conviction for cocaine distribution. On cross examination, the prosecutor asked the witnessabout his conviction: “Is that your connection [to Lewis]?” Lewis’s trial lawyer objected, but the objection was overruled. The prosecutor pressed on, but the witness answered, “No, it isn’t.”

That, you would think, would be the end of the matter. But the prosecutor kept going. “He’s not tied into that with you at all?” “No, he isn’t.” The defense lawyer rose again to object, and made a subsequent mistrial motion. During the argument of that motion, the prosecutor acknowledged that one basis for admission of the evidence could be to establish a motive for the murder (of which he had no other evidence), namely, to obtain money for drugs. Lewis’s contention that this argument injected an improper issue into the trial fell on deaf ears in the trial court.

But not in the Supreme Court. By a bare 4-3 majority, the Court reversed, holding that the cross-examination was improper. Finding the connection between the murder and any drug activity to be “purely speculative,” the Court concluded that the line of questioning was “an attempt to elicit inadmissible evidence of other crimes that were unrelated to the crimes charged.”

The Court then turned to whether the improper line of questioning prejudiced Lewis. Here, the prosecutor’s repetition of his question, persisting even after a denial, persuaded the Court to reverse. Acknowledging the current public climate of abhorrence for drug-related offenses, the Court determined that only a reversal and a new trial would suffice.

A three-justice minority opined that there was nothing wrong with the cross-examination.

Palmer v. Commonwealth — Here, the Court reversed two convictions of possession of a firearm by a person who had been convicted of a delinquent act as a juvenile. The statute requires that the predicate (juvenile) offense be one that would have been a felony if the defendant had been an adult. The defendant had been charged with four such acts while under the age of eighteen (two each of grand larceny and burglary) but the disposition orders from the JDR Court, while stating that the juvenile had to pay restitution and was to be confined for six months, did not specify the offense of which the juvenile was found not innocent.

The Supreme Court, while acknowledging that these circumstances might suggest that the offenses for which the juvenile had been sentenced were satisfactory predicates, held that they were not proven to be so beyond a reasonable doubt. As such, the Commonwealth’s evidence failed in one essential respect, and the weapons possession convictions were reversed.

While the effects of this decision may be sharply limited given the facts of the case — most juvenile orders are not similarly ambiguous or incomplete — it still will be worth while for a criminal defense attorney to scan carefully the underlying juvenile records, to ensure that the fact and nature of the JDR adjudication is clearly set out. If not, this opinion suggests that a subsequent prosecution may be impaired.

Hood v. Commonwealth — In a case of first impression, the Court interpreted an “immunity/cooperation” agreement. In exchange for his cooperation against another defendant, the Commonwealth had reached an agreement with Hood regarding Hood’s own prosecution. Specifically, Hood agreed to provide a statement, or proffer, that could not be used in Hood’s own trial, as long as Hood did not present evidence different from the proffer. At his trial, Hood’s lawyer cross-examined the medical examiner in such a way as to suggest a conclusion that was different from the proffer (that is, that the crimes were committed by someone else).

Today, the Supreme Court affirmed the trial court’s determination that that inference was sufficient to breach the agreement, since the alternative-perpetrator theory thereby suggested was inconsistent with the proffer. In this appeal, as in many others, the standard of review was probably decisive. The Supreme Court reviewed the terms of the agreement de novo, but reviewed the trial court’s factual findings using the far more lenient clearly erroneous standard. The Court thus specifically ruled that it was not error to introduce the proffer in the Commonwealth’s case in chief.

The key issue here was the fact that the cross examination only implicitly undermined or contradicted the proffer. Hood himself never recanted his statement. But the implication of the question, the Court found, was clear — Hood was attempting to cast suspicion on another person, in a manner inconsistent with his proffer and his agreement.

Standard of review is unquestionably an unsexy topic for most people (with the exception of appellate lawyers, which fact may say something about us). But here, it probably was dispositive of the entire appeal.

The Court also summarily affirmed a conviction in Parker v. Commonwealth, a case involving a food manufacturing plant that had not been inspected by the Department of Agriculture and Consumer Services. The Supreme Court adopted the reasoning of the Court of Appeals, whose opinion may be accessed here.


The Court decided two zoning cases today. In Patton v. City of Galax, it ruled that one portion of a building could not be “grandfathered” into a legal nonconforming use under Galax’s B-2 (business) zoning classification.

The Court considered here where an established use in one portion of a building would preserve the owner’s right to extend that use to the remainder of the building after the passage of a zoning ordinance. The Pattons owned a two-story building in downtown Galax. The second floor was used for residential purposes, but the first was principally commercial. When the city enacted a zoning ordinance a few years later, the property fell in the B-2 (Business General) District, meaning that residential uses would not be permitted without a conditional use permit.

Since the second floor had been residential from before the passage of the ordinance, that use was grandfathered, and could continue. But when the Pattons began to convert the first floor into apartments, the city stepped in, halting the work and seeking an injunction against further residential construction without a CUP. The trial court issued a temporary injunction to stop construction, at which point the Pattons and the city agreed to continue the proceedings, to allow the Pattons to apply for a CUP that would moot the injunction suit.

Unfortunately, the Planning Commission wasn’t persuaded; it denied the application. The Pattons then filed an appeal with the Board of Zoning Appeals, but that, too was unavailing. The next step was an appeal to the Circuit Court (technically on a writ of certiorari). That court considered simultaneously the BZA appeal and the city’s request for a permanent injunction. It ruled in favor of the city in both cases. The Pattons appealed both to the Supreme Court.

The Court today affirmed both decisions. In the injunction suit, it held that the use of a portion of a building does not grandfather the right to extend the nonconforming use to the rmainder of the building. While this is, as the Court noted, a question of first impression, it had little difficulty in ruling that such a use does not entitle the owner to expand the nonconformity. This part of the Court’s ruling was unanimous.

A more contentious portion of the case was the trial court’s separate denial of the conditional use permit. The ordinance prohibited residential uses that “front on designated streets.” A bare majority of the Supreme Court affirmed the denial of the permit, holding that the phrase “designated street” in the City Code included all streets in the B-2 area. The dissent contended that the phrase “designated street” was nowhere defined, and the City had never “designated” any streets. The opinions comprise an interesting debate on statutory construction.

Gas Mart Corp. v. Loudoun County — When Loudoun County implemented comprehensive revisions of its zoning ordinance in 2003, over 200 chancery suits followed, filed by landowners complaining about the sufficiency of the notices given by the County, and several other aspects of the amendments. The cases were consolidated under the Multiple Claimant Litigation Act. Two of the common questions were certified for interlocutory appeal.

The first question was whether the County had to comply with both of two separate state code requirements for advertising changes to zoning ordinances. One such requirement deals with ordinance changes generally; the other specifically applies to zoning ordinances. The Court this morning applied the familiar doctrine of statutory construction that prefers a narrow, specific provision over a broad, general one. On this issue, the Court found that the County was only required to fulfill the requirements of Code §15.2-2204 and -2285 (changes to zoning ordinances), and need not send out a separate notice pursuant to §15.2-1427(F) (changes to ordinances generally).

The second question was the adequacy of the notices. In two respects, the Court found that the notices did not comply with the statutory requirements. First, it found that the “descriptive summary” of the nature of the changes was too vague to be of any meaningful help to the citizenry in understanding what was being changed. The reference in the notices to “the Conservation Design policies” in the plan was held to be too non-specific, since those policies were not defined elsewhere in the notice. Second, the Court found that the geographic parameters of the area affected by the proposed ordinance were insufficiently set forth. The notices had only specified that “most of” certain zoned areas “in the Western portion of the County” were covered by the proposed changes. In addition to its being nonspecific, the Court also found this description to be factually inaccurate, noting that some of the affected areas were in the northeastern portion of the County. The Court found that other challanged portions of the notices were sufficent, but nevertheless remanded the case due to the two deficiencies noted above.

Habeas corpus

Two habeas corpus cases were decided today, both involving death row inmates. In Emmett v. Warden, the Court dismissed by order a habeas corpus proceeding brought by an inmate who contended that the jury verdict form used in his capital murder trial was improper, given the state of the law at the time. The form omitted one sentencing alternative that was required by statute and by the Court’s 1999 decision in Atkins v. Commonwealth. The form given to the jury included provisions for the jury’s finding of either or both of the requisites for imposition of the death penalty (vileness or future dangerousness), and permitted the jury to recommend either life or death. But there was no specific provision for a finding that neither of the alternatives had been shown, with a concomitant recommendation of life in prison.

The Supreme Court agreed that the form was incorrect, but found that the error had no prejudicial effect. The Court reasoned that the jury had found both predicates to have been proven — so it indicated in the form it returned — so the omission of an alternative the jury had clearly rejected did not prejudice Emmett.

In dissent, Justice Koontz argued that the case should be remanded for resentencing. He noted as sharp distinction between death penalty cases and other cases, and urged that this clear error in the sentencing be rectified before the Commonwealth sends a man to his death.

The Court also dismissed the habeas corpus petition in Yarbrough v. Commonwealth, where the inmate had complained that his trial counsel had not sufficiently investigated and introduced evidence in mitigation of sentence, specifically relating to his hardship-filled upbringing.

The Court interpreted this claim under the two-part test enunciated by the U.S. Supreme Court in 1984 in Strickland v. Washington. In that case, the high court required two findings: (1) That the defense lawyer’s representation was objectively unreasonable; and (2) That but for the attorney’s errors, there is a reasonable probability of a different result.

The Court elected to consider the questions in reverse order. After weighing the proffered mitigation evidence against the evidence of aggravation adduced at trial, it determined that Yarbrough was not prejudiced by the alleged errors of his counsel, and that there was no reasonable probability of a result other than the one reached at trial. It therefore elected not to consider the allegations that the attorney’s investigation was objectively unreasonable.