I. IN GENERAL.

The object of this section is fourfold: (1) to compel the Commonwealth to inform the accused of the cause and nature of the charge; (2) to produce witnesses against him; (3) to enable him to obtain witnesses in his own behalf; and (4) to submit the evidence for and against the accused to an impartial jury within a reasonable time after the indictment has been returned. Howell v. Commonwealth, 186 Va. 894 , 45 S.E.2d 165 (1947).

The phrase "the law of the land" as used in this section means that no person in a criminal case shall be denied the right to the assistance of counsel of his own selection, and that no person indicted for an infamous offense who is financially unable to engage counsel shall be denied the aid of counsel if this fact is brought to the attention of the trial judge. It does not mean that the court, in the absence of request, must appoint counsel to assist the accused in the trial of every criminal case. Stonebreaker v. Smyth, 187 Va. 250 , 46 S.E.2d 406 (1948).

Defendant's right of confrontation is paramount to state's policy of protecting juvenile offenders, so that the right effectively to cross examine a witness to show bias, outweighs any embarrassment to the witness resulting from a disclosure of his juvenile court record. Bostic v. Commonwealth, 31 Va. App. 632, 525 S.E.2d 67 (2000).

However, a court may refuse the use of juvenile convictions in a general attack on witness credibility. Bostic v. Commonwealth, 31 Va. App. 632, 525 S.E.2d 67 (2000).

This constitutional provision expressly authorizes criminal trials by juries of fewer than 12 members. Moffett v. Commonwealth, 24 Va. App. 387, 482 S.E.2d 846 (1997).

Petitioner need not profit by retrial. - Even if the petitioner will not profit by a retrial, he is entitled to a trial which meets the constitutional requirement with respect to the assistance of counsel. Burley v. Peyton, 206 Va. 546 , 145 S.E.2d 175 (1965).

Court of record could correct jurisdictional defects previously existing in criminal proceeding involving juvenile defendant. - See Redmon v. Peyton, 420 F.2d 822 (4th Cir. 1969).

Writ of error to judgment of trial court not among inalienable rights. - The inalienable rights of a person accused of crime are stated in this section, but a writ of error to the judgment of a trial court is not among them. McCue v. Commonwealth, 103 Va. 870 , 49 S.E. 623 (1905).

Right to plead guilty is unambiguous and has no constitutional limitation. - This section states in clear and unambiguous terms that a criminal defendant may plead guilty; no limitation on this right is contained in the constitution. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Guilty plea tendered in mid-trial irrelevant to right to enter plea. - The fact that a plea is tendered mid-trial is irrelevant to the analysis regarding a defendant's right to enter a plea of guilty; no limitations either under the Virginia Constitution, statute or rules of court exist which provide a time by which a defendant must enter his plea of guilty. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Rejection of guilty plea to whole indictment only when plea constitutionally invalid. - Under the Virginia Constitution, the statutes and the Rules of the Supreme Court of Virginia, a trial court may reject a guilty plea to the whole of an indictment tendered without a plea agreement only when it determines that the plea is constitutionally invalid; further, this determination extends only to ensuring that a guilty plea is made voluntarily, intelligently and knowingly. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Preliminary hearing. - An accused who has been indicted in a court of record may be tried on the indictment without any preliminary hearing, since a defendant has no right, either statutory or constitutional, to be afforded a preliminary hearing prior to the finding of the indictment or to his trial thereon. Benson v. Commonwealth, 190 Va. 744 , 58 S.E.2d 312 (1950).

The requirement of a preliminary hearing (assuming no waiver) of one arrested on a charge of a felony is not jurisdictional, and its denial does not violate the "due process" and "equal protection" of the law clauses of § 1 of the Fourteenth Amendment to the Constitution of the United States and this section. Timmons v. Peyton, 240 F. Supp. 749 (E.D. Va. 1965), rev'd on other grounds, 360 F.2d 327 (4th Cir.), cert. denied, 385 U.S. 960, 84 S. Ct. 635, 11 L. Ed. 2d 480 (1966).

Where a defendant, arrested for engaging in a numbers racket and for paying protection money to police officers, requests a preliminary hearing, such preliminary hearing may be refused by the police justice of the court to which the warrant is returnable. Benson v. Commonwealth, 190 Va. 744 , 58 S.E.2d 312 (1950).

The function of an indictment is to give an accused notice of the nature and character of the accusations against him in order that he can adequately prepare to defend against his accuser. Davis v. Commonwealth, No. 2626-95-2 (Ct. of Appeals Apr. 1, 1997).

Failure to instruct on presumption of innocence. - In a prosecution for the offense of unlawfully and feloniously operating a motor vehicle after having been declared an habitual offender and while the order of court prohibiting such operation remained in effect, the refusal of the trial court to instruct on the presumption of innocence, even if assumed to be error, was harmless beyond a reasonable doubt where the evidence of guilt was uncontroverted and overwhelming, where the defendant's substantial rights were not affected in any way, and where there was no likelihood that the giving of the instruction would have altered the sentence, which was one year above the minimum; but the decision should not be taken as a signal that the Supreme Court has softened its adherence to the principle that the accused is entitled in most every case to an instruction on the presumption of innocence. Yager v. Commonwealth, 220 Va. 608 , 260 S.E.2d 251 (1979).

Certainty and definiteness required of act creating statutory offense. - An act creating a statutory offense, to be valid, must specify with reasonable certainty and definiteness the conduct which is commanded or prohibited, that is, what must be done or avoided, so that a person of ordinary intelligence may know what is thereby required of him. The enactment should define the acts to be done or not to be done which constitute such offense with such certainty that a person may determine whether or not he has violated the law at the time he does or fails to do the act, which is charged to be a violation thereof. Unless an act creating a statutory offense satisfies this requirement of certainty and definiteness it violates the due process clauses of the Virginia Constitution. Peacock v. Commonwealth, 200 Va. 464 , 106 S.E.2d 659 (1959), quoting Caldwell v. Commonwealth, 198 Va. 454 , 94 S.E.2d 537 (1956).

The third sentence of former § 54-504, relating to records to be kept under the Uniform Narcotic Drug Act, was, prior to its amendment in 1959, fatally defective in that it failed to specify the time when the dispenser of "exempted" narcotic drugs must record a sale thereof. Peacock v. Commonwealth, 200 Va. 464 , 106 S.E.2d 659 (1959).

Statute held too vague and indefinite. - The portion of the hit-and-run statute imposing on "occupant, witness or other person having knowledge of such an accident" a duty "to furnish as much of the information hereinbefore required as possible, if the driver is unable or unwilling to furnish it" is so vague and indefinite as to be unenforceable under the provisions of this section. Caldwell v. Commonwealth, 198 Va. 454 , 94 S.E.2d 537 (1956).

A claim that a statute on its face contains no requirement of mens rea or scienter is no ground for holding the statute unconstitutional, since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved. Maye v. Commonwealth, 213 Va. 48 , 189 S.E.2d 350 (1972).

The provisions of statute making possession of burglarious tools prima facie evidence of intent to commit burglary (now § 18.2-94) is not violative of this section. The statutory presumption arises only from possession of such tools as are ordinarily used in breaking and entering and does not arise from possession of common ordinary tools of a trade or calling. Burnette v. Commonwealth, 194 Va. 785 , 75 S.E.2d 482 (1953).

Commonwealth may appeal in any criminal case involving violation of a State revenue law. - Under both Va. Const., Art. VI, § 1, and this section the legislature may allow the Commonwealth an appeal in any criminal case involving the laws concerning the state revenue, regardless of the degree of punishment. But by virtue of the operation of Va. Const., Art. VI, § 1, such appeal does not lie in any other kind of criminal cases involving life or liberty. Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919).

Applied in Davis v. Commonwealth, 219 Va. 395 , 247 S.E.2d 681 (1978); Knight v. Johnson, 699 F.2d 162 (4th Cir. 1983); Stephens v. Commonwealth, 225 Va. 224 , 301 S.E.2d 22 (1983); Kelsoe v. Commonwealth, 226 Va. 197 , 308 S.E.2d 104 (1983); Godfrey v. Commonwealth, 227 Va. 460 , 317 S.E.2d 781 (1984); Rowe v. Grizzard, 591 F. Supp. 389 (E.D. Va. 1984); Educational Books, Inc. v. Commonwealth, 228 Va. 392 , 323 S.E.2d 84 (1984); Hairston v. Commonwealth, 2 Va. App. 211, 343 S.E.2d 355 (1986); Willis v. Commonwealth, 10 Va. App. 430, 393 S.E.2d 405 (1990); Moten v. Commonwealth, 14 Va. App. 956, 420 S.E.2d 250 (1992); Crawford v. Commonwealth, 23 Va. App. 661, 479 S.E.2d 84 (1996); Price v. Commonwealth, 24 Va. App. 785, 485 S.E.2d 655 (1997); Brown v. Commonwealth, 29 Va. App. 199, 510 S.E.2d 751 (1999); Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137 (1999); Fairfax County Dep't of Family Servs. v. Nordel, 29 Va. App. 400, 512 S.E.2d 830 (1999); Warmouth v. Commonwealth, 29 Va. App. 476, 513 S.E.2d 418 (1999); Humbert v. Commonwealth, 29 Va. App. 783, 514 S.E.2d 804 (1999); Wilson v. Commonwealth, 31 Va. App. 495, 525 S.E.2d 1 (2000); Gray v. Commonwealth, 37 Va. App. 353, 558 S.E.2d 545, 2002 Va. App. LEXIS 48 (2002); Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004); Grafmuller v. Commonwealth, 290 Va. 525 , 778 S.E.2d 114, 2015 Va. LEXIS 153 (2015).

II. PRIVILEGE AGAINST SELF-INCRIMINATION.

Precedent interpreting Fifth Amendment applicable to this section. - Precedent interpreting the Fifth Amendment to the U.S. Constitution right against self-incrimination is equally applicable to the challenges made under this section. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

This section is no broader than counterpart under federal Constitution. - The privilege against compelled testimony under this section is no broader in its application than its counterpart under the federal Constitution. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

This provision has existed in the Bill of Rights of Virginia as far back as June 12, 1776. Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110 (1892), overruled in part, on other grounds, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

And is not limited to those cases where witnesses are called to testify in criminal prosecutions against themselves. But the privilege is as broad as the mischief against which it seeks to guard, and insures that a person shall not be compelled, when acting as a witness in any investigation, to give testimony which may tend to show that he himself has committed a crime. Murphy v. Commonwealth, 64 Va. (23 Gratt.) 960 (1873); Cullen v. Commonwealth, 65 Va. (24 Gratt.) 624 (1873); Temple v. Commonwealth, 75 Va. 892 (1881); Kendrick v. Commonwealth, 78 Va. 490 (1884); Sprouse v. Commonwealth, 81 Va. 374 (1886); Litton v. Commonwealth, 101 Va. 833 , 44 S.E. 923 (1903).

The privilege against self-incrimination protects a person from any disclosure sought by legal process against him as a witness. Owens v. Commonwealth, 186 Va. 689 , 43 S.E.2d 895 (1947).

This section precludes the prosecution from using an assertion of the privilege against self-incrimination to discredit or convict the person who asserted it. Dean v. Commonwealth, 209 Va. 666 , 166 S.E.2d 228 (1969).

But defendant's conduct may open door to comment. - Even though a defendant does not testify, demonstrative conduct on his part in some circumstances may open the door to fair comment on his failure to testify. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

Defendant's broad and unfocused questions to law-enforcement officers, and continuous insistence on desiring to talk to them about his passenger's involvement in suspicious activity, despite numerous warnings given to him regarding his rights under Miranda, established that police did not violate his right to counsel and right to remain silent; thus, the trial court properly denied suppression of the evidence seized and his statements, and his convictions for possession with intent to distribute and transporting more than one ounce of cocaine into the Commonwealth with the intent to distribute were affirmed. Medley v. Commonwealth, 44 Va. App. 19, 602 S.E.2d 411, 2004 Va. App. LEXIS 453 (2004).

Proper comment under invited error doctrine. - It is generally error for the prosecutor to comment on the defendant's failure to testify. Such comment, however, may become proper under the invited error doctrine when the area has been opened to fair comment by the argument and comment of defense counsel or of a pro se defendant. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

Defendant's counsel, in his summation, represented to the jury that the defendant did not testify because "we don't feel . . . the jury are going to convict . . . on the evidence of two convicted felons" and because "we didn't think it was necessary." By so doing, the defense invited the prosecution's response, which did not go beyond meeting the argument advanced by the defendant. In these circumstances the response was fully justified and did not constitute error. Lincoln v. Commonwealth, 217 Va. 370 , 228 S.E.2d 688 (1976).

When witness cannot avail himself of this section. - Where the law gives to the witness full indemnity and assurance against any liability to prosecution for a disclosure he can be called upon to make as to his own implication or complicity in the unlawful act as to which he is sworn and called upon to testify, he is bound to answer and cannot shield himself under this section of the Constitution. Flanary v. Commonwealth, 113 Va. 775 , 75 S.E. 289 (1912).

Witness testimony should only be compelled if incrimination clearly impossible. - When a witness declares his belief that the answer to the question would incriminate, or tend to incriminate him, the court cannot compel him to answer unless it is perfectly clear from a careful consideration of all the circumstances in the case that the witness is mistaken and that the answer cannot possibly have such tendency. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Privilege not waived by witness who made incriminating statements after attempting to invoke privilege. - Witness, whose English was limited and who was compelled, under oath, to answer questions with incriminating responses, did not waive his constitutional privilege against self-incrimination where he clearly invoked the privilege before being so compelled. Nhi Al Tran v. Commonwealth, No. 2357-03-4, 2004 Va. App. LEXIS 441 (Ct. of Appeals Sept. 14, 2004).

Refusal of continuance as abuse of discretion where witness confessed. - Trial court abused its discretion by refusing to grant defendant a continuance, when a witness allegedly confessed on the morning of trial, and then the trial court refused to allow defendant to put the witness on the stand; the simple invocation of Fifth Amendment rights by a witness did not end the responsibilities of the trial court, as the court needed to determine whether the privilege was properly invoked. Carter v. Commonwealth, 39 Va. App. 735, 576 S.E.2d 773, 2003 Va. App. LEXIS 91 (2003).

Prosecutorial comment as violation of right. - As a general rule, any comment that the Commonwealth's attorney makes referring to defendant's election not to testify is a violation of his right against self-incrimination, as guaranteed by U.S. Const., Amend. V and this section and as explicated in § 19.2-268. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Prosecutor need not accept every asserted claim at face value. - The Fifth Amendment does not provide a blanket right to refuse to answer any questions. Once a witness asserts his Fifth Amendment right, some investigative questioning must be allowed, for it is well settled that the "prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous." By its language, the Fifth Amendment privilege pertains only to situations where an individual is compelled to become "a witness against himself." The Constitution of Virginia likewise confers a right to a witness to be free from being compelled "to give evidence against himself." Cunningham v. Commonwealth, 2 Va. App. 358, 344 S.E.2d 389 (1986).

Violation not shown. - In a burglary prosecution, where defendant chose not to testify and the prosecutor asked the jurors if they had "heard from that witness stand any evidence" that defendant had denied his guilt, any witness who had spoken with defendant could have supplied such evidence if, in fact, defendant had uttered such a denial. Hence, the prosecutor's reference to the lack of such evidence could not be characterized fairly as a remark that the jury naturally and necessarily would interpret as a comment on the fact that defendant had exercised his right not to testify. Johnson v. Commonwealth, 236 Va. 48 , 372 S.E.2d 134 (1988).

Marital privilege that barred admission into evidence of communications made during the marriage were creations of statute and common law, and did not have a constitutional basis. Therefore, in the case against defendant for allegedly raping and forcibly sodomizing defendant's teenage stepdaughter, defendant's claim that incriminating statements made to the victim's mother, defendant's wife, were protected by a self-incrimination privilege had to be rejected. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

Admission of statements defendant made to police after defendant indicated that defendant did not want to talk did not violate defendant's right to remain silent where defendant told the officers, as they were leaving, to remain and that defendant would tell the officers what they wanted to know. Hicks v. Commonwealth, No. 0430-06-4, 2007 Va. App. LEXIS 177 (May 1, 2007).

Although defendant invoked the right to remain silent, the statements made thereafter to police were properly admitted into evidence because defendant's question to police, "Can we just talk later?" was related generally to the pending investigation and thus the statements that followed were part of a conversation voluntarily reinitiated by defendant. Knox v. Commonwealth, 52 Va. App. 366, 663 S.E.2d 525, 2008 Va. App. LEXIS 332 (2008).

Trial court properly admitted defendant's statement to police after finding that defendant's confession was voluntary; among other things, there was no evidence that police used trickery or deceit, and the officer's promise to forgo a valid prosecution against defendant's sister, who had been lawfully charged with possession of cocaine based on the 50 to 60 grams found in the vehicle the sister was driving when stopped by the officer, was not coercive. Hill v. Commonwealth, 52 Va. App. 313, 663 S.E.2d 133, 2008 Va. App. LEXIS 328 (2008).

Trial court did not err in ruling that a prosecutor's remarks during rebuttal closing argument did not amount to an adverse comment on defendant's failure to testify because the prosecutor could properly comment on the fact that defendant was hiding or otherwise fleeing to avoid detection; without objection, the jury was instructed that if a person fled to avoid detection, apprehension, or arrest, that created no presumption that the person was guilty of having committed a crime, but it was a circumstance that the jury could consider along with the other evidence. Stockman v. Commonwealth, No. 0334-07-3, 2008 Va. App. LEXIS 143 (Mar. 25, 2008).

Defendant's failure to participate in sex offender treatment and subsequent revocation of part of defendant's suspended sentence for violating a condition of defendant's probation did not violate defendant's right against self-incrimination pursuant to Va. Const., Art. I, § 8. Even despite the fact that defendant had pled guilty to the underlying offenses while continuing to proclaim that defendant was innocent, the issue was not defendant's refusal to admit what defendant had done, but defendant's refusal to cooperatively participate in the sex offender treatment program. Davis v. Commonwealth, No. 0462-07-2, 2008 Va. App. LEXIS 122 (Mar. 11, 2008).

Trial court properly denied defendant's motion to suppress statements he made to a police detective on the ground that he mistakenly believed that the detective was interviewing him for the purposes of obtaining a plea bargain as it was defendant's mistaken belief, not any coercive activity by the detective, which led to defendant's statements. Young v. Commonwealth, No. 2143-07-4, 2008 Va. App. LEXIS 482 (Oct. 28, 2008).

Defendant's constitutional right under the Due Process Clause of the Fourteenth Amendment to remain silent was not violated by a detective testifying as a rebuttal witness to impeach defendant's testimony about defendant having acted in self-defense as a recent fabrication presented for the first time from the witness stand because the record did not show that defendant's silence was in response to any Miranda warnings that defendant received. Caprino v. Commonwealth, 53 Va. App. 181, 670 S.E.2d 36, 2008 Va. App. LEXIS 552 (2008).

With regard to defendant's convictions on two capital murder counts and the imposition of two death sentences against him, the trial court did not commit reversible error by permitting the prosecutor to comment on defendant's lack of remorse because several witnesses, including mental health experts, were asked during the resentencing proceeding whether defendant had expressed any remorse, and they said no, thus, the Commonwealth's comment on defendant's lack of remorse was not a comment on his failure to testify, but rather a comment on the evidence that had been presented. Prieto v. Commonwealth, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012), cert. denied, 133 S. Ct. 244, 2012 U.S. LEXIS 6641, 184 L. Ed. 2d 129 (U.S. 2012).

Trial court did not err when it found defendant in violation of the terms of his probation and revoked a portion of his suspended sentence because defendant's constitutional self-incrimination rights were not violated since "incrimination" was not present where any admission of guilt by defendant could not result in future prosecution and would be barred by the Double Jeopardy Clause of the Fifth Amendment, defendant faced no possibility of criminal prosecution for admitting the crimes for which he had already been convicted, and his Alford plea of guilty did not affect his obligation to comply with a treatment requirement that he admit his guilt. Zebbs v. Commonwealth, 66 Va. App. 368, 785 S.E.2d 493 (2016).

This section did not, as defendant insisted, protect an individual from having to give incriminatory evidence; rather, by its plain language, § 8 only protected an individual from being compelled to give evidence against himself, self-incriminating evidence. Shin v. Commonwealth, 294 Va. 517 , 808 S.E.2d 401 (2017).

The admission of testimony that an accused remained silent in the face of an accusation does not compel the accused "to give evidence against himself" within the meaning of this section. The accused is not testifying, nor is he compelled to take the stand to refute the accusation. Owens v. Commonwealth, 186 Va. 689 , 43 S.E.2d 895 (1947); Gardner v. Commonwealth, 195 Va. 945 , 81 S.E.2d 614 (1954).

Silence cannot be used to impeach subsequent explanation. - Supreme Court of the United States has reasoned that it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. Sluder v. Commonwealth, No. 2531-02-3, 2003 Va. App. LEXIS 605 (Ct. of Appeals Nov. 25, 2003).

Evidence that defendant failed to produce receipt held inadmissible. - In prosecution for grand larceny of store merchandise, trial court erred in admitting evidence that defendant had not produced a receipt for the stolen goods when confronted by store's loss prevention manager, whom the police brought to defendant while he was in custody; this was equivalent to proving silence in the face of an accusation, and impermissibly burdened defendant's exercise of his privilege against self-incrimination. Hartigan v. Commonwealth, 31 Va. App. 243, 522 S.E.2d 406 (1999).

The privilege is applicable to documents and papers, and therefore papers of the defendant found at the home of defendant's parents could not be used in evidence against him even though the parents consented to the search of their home where the papers were found. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Privilege is inapplicable to production of drugs. - Although defendant's act of producing his illicit drugs provided the officer with incriminating evidence, the drugs were not testimonial and were thus, exempt from the privilege against self-incrimination. Kiser v. Commonwealth, No. 2189-05-3, 2006 Va. App. LEXIS 584 (Dec. 28, 2006).

Only accused can waive privilege. - The privilege is highly personal and no one can waive this right for the accused except the accused himself. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

An arresting officer need not close his ears to voluntary statements made by a person in his presence. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

Defendant waives right against self-incrimination by pleading guilty. - By pleading guilty, a defendant waives his Fifth Amendment right against self-incrimination as to matters germane to the offense for which he has pled guilty and is to be sentenced. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him. Harbaugh v. Commonwealth, 209 Va. 695 , 167 S.E.2d 329 (1969).

The waiver of the right against compulsory self-incrimination is not unlimited; it does not allow the law-enforcement authorities to inquire about unrelated matters which have no bearing upon the disposition of the case before the trial court. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

Inquiry held within scope of waiver of right against self-incrimination. - Where the trial court was considering a presentence report in order to determine an appropriate sentence and disposition, and the defendant had given conflicting reports about the extent of his drug use or habit, the inquiry into the conflicting reports was relevant to the case for which he had pled guilty and within the scope of the waiver of his right against compulsory self-incrimination. Edmundson v. Commonwealth, 13 Va. App. 476, 412 S.E.2d 727 (1992).

It is the question, not the anticipated answer, that is relevant to a ruling on the privilege against self-incrimination, thus, defendant's proffer of expected responses from witness was correctly refused by the court. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Witness' silence correctly honored where trial court heard and considered several questions that defendant proposed to ask witness, recognized an incriminating dimension to the inquiries, and thereby declined to compel witness' testimony. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Statutory use immunity not bar to invocation of privilege. - Section 19.2-270 by its terms confers only use immunity, i.e., it protects the witness only from the use of the specific testimony compelled from him under the grant of immunity, but not from evidence obtained as a result of his testimony. Such limited protection is obviously not coextensive with the constitutional privilege against self-incrimination and cannot overcome the privilege once validly asserted. Gosling v. Commonwealth, 14 Va. App. 158, 415 S.E.2d 870 (1992).

Immunity/cooperation agreement breached by defendant. - Trial court properly held that defendant breached his immunity/cooperation agreement and opened the door to admission of his proffer statement after he elicited testimony that led to two inferences inconsistent with his proffer including: (1) that someone other than defendant and his accomplice murdered the victim, and which contradicted the proffer that the accomplice, aided by defendant, was the perpetrator, and (2) an inference that the accomplice was the Golden Years killer and that the murder was part of that string of sexual assaults, which was inconsistent with the proffer that the victim was murdered in retaliation for a theft by a drug dealer, who defendant thought was related to the victim. Hood v. Commonwealth, No. 2469-02-2, 2004 Va. App. LEXIS 82 (Ct. of Appeals Feb. 17, 2004), aff'd, 269 Va. 176 , 608 S.E.2d 913 (2005).

Confession obtained by erroneous methods not admissible. - Where the Commonwealth's attorney intentionally conducted his conversations with the accused so as to raise in the mind of said accused the hope and belief that if such accused testified in behalf of the Commonwealth he would not be prosecuted, a confession procured under such circumstances is not in law a voluntary confession, and is not admissible. Belcher v. Commonwealth, 160 Va. 891 , 168 S.E. 468 (1933).

The constitutional inhibition against self-incrimination does not apply to evidence of extrajudicial admissions or confessions. The privilege against self-incrimination protects a person from any disclosure obtained by legal process against him as a witness. The admissibility of an admission or a confession depends upon the application of a rule of evidence. Gardner v. Commonwealth, 195 Va. 945 , 81 S.E.2d 614 (1954).

Nor extend beyond testimonial compulsion. - This section, like its federal counterpart, is designed to protect an accused against the employment of legal process to extract an admission of guilt and does not extend beyond testimonial compulsion. Walton v. City of Roanoke, 204 Va. 678 , 133 S.E.2d 315 (1963).

The burden of proving that an extrajudicial confession is voluntarily made before it can be admitted into evidence is upon the Commonwealth. Ward v. Commonwealth, 205 Va. 564 , 138 S.E.2d 293 (1964).

Former § 18.1-55 (see now § 18.2-268.1 et seq.), the Implied Consent Statute, did not violate the provisions of this section. Walton v. City of Roanoke, 204 Va. 678 , 133 S.E.2d 315 (1963); Caldwell v. Commonwealth, 205 Va. 277 , 136 S.E.2d 798 (1964); Shumate v. Commonwealth, 207 Va. 877 , 153 S.E.2d 243 (1967).

Evidence that accused refused to submit to blood test admissible. - In a prosecution for drunken driving, to permit the arresting officer to testify that defendant at the time of the arrest refused to submit to a blood test was not error and did not violate defendant's constitutional privilege against self-incrimination. Gardner v. Commonwealth, 195 Va. 945 , 81 S.E.2d 614 (1954). See § 18.2-268.1

Protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution; thus, defendant's conviction under § 18.2-268.3 for unlawfully refusing to provide a breath sample after being arrested for driving under the influence of alcohol was affirmed as § 18.2-268.3 did not compel testimonial evidence under the Fifth Amendment. Rowley v. Commonwealth, 48 Va. App. 181, 629 S.E.2d 188, 2006 Va. App. LEXIS 167 (2006).

Taking blood for DNA analysis not self-incrimination. - The right against self-incrimination afforded by the Constitution of Virginia is not violated by the statutes providing for the taking of DNA samples from convicted felons because the taking of such a sample is not testimonial or communicative in nature. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused's right, under this section, not to "be compelled ... to give evidence against himself." Farmer v. Commonwealth, 10 Va. App. 175, 390 S.E.2d 775 (1990).

Neither the Fifth Amendment to the U.S. Constitution nor this section were violated by the admission in evidence of the fact of defendant's refusal to take a field sobriety test. Farmer v. Commonwealth, 12 Va. App. 337, 404 S.E.2d 371 (1991).

Privilege inapplicable under former § 46.1-176(a) (see now § 46.2-894). - Even though there may be a "real" possibility of self-incrimination to the "hit and run" habitual offender stemming from enforcement of former § 46.1-176(a) (see now § 46.2-894) and the information gained by compliance therewith in a prosecution under former § 46.1-387.8 (see now § 46.2-357), the state's vital interest in its self-reporting system compels rejection of an effort to extend the self-incrimination privilege to such a statutory framework. Banks v. Commonwealth, 217 Va. 527 , 230 S.E.2d 256 (1976).

Miranda rights. - Order granting defendant's motion to suppress a statement he gave to a police officer while in custody after invoking his right to counsel, without counsel present, was affirmed as the statement was obtained during the functional equivalent of an interrogation and was not a voluntary waiver of his Miranda rights where: (1) defendant was in custody in Maryland when he was read his Miranda rights and defendant invoked his right to counsel when asked about the Maryland offense; (2) the Virginia police officer arrived about three and one-half hours later, and told defendant that someone else had implicated him in a crime in Virginia; (3) defendant told the Virginia officer that he would tell him what happened; (4) the Virginia officer left the room to consult with others, and returned and advised defendant of his Miranda rights; and (5) defendant executed a written waiver and gave the officer the statement suppressed by the trial court. Commonwealth v. Davis, No. 2937-02-2, 2003 Va. App. LEXIS 276 (Ct. of Appeals May 6, 2003).

Suppression of defendant's statements was erroneous despite the detective's failure to give defendant Miranda warnings prior to questioning her because defendant was not in custody at the time the detective questioned her; defendant was free to leave and never indicated that she thought she was under arrest. Commonwealth v. Meyers, No. 2018-04-4, 2005 Va. App. LEXIS 57 (Ct. of Appeals Feb. 8, 2005).

Officer was not required to advise defendant of defendant's Miranda rights at the time defendant made incriminating statements to the officer following a traffic stop of defendant's vehicle. Even though the officer handcuffed defendant with defendant's hands in front of defendant, the officer informed defendant that it was done for "officer safety" and that defendant was free to leave, and defendant had not been formally arrested or deprived of freedom of movement such that defendant could be considered to be "in custody" for Miranda warning purposes. Anderson v. Commonwealth, No. 0163-07-2, 2008 Va. App. LEXIS 16 (Jan. 15, 2008).

Trial court erred in suppressing defendant's statements due to a lack of Miranda warnings, because she voluntarily went to the police station, was advised she was not under arrest, and left without hindrance at the end of the interview; the fact that the investigator said he believed she was guilty did not make the interview custodial in nature. Commonwealth v. Butcher, No. 0314-12-3, 2012 Va. App. LEXIS 223 (July 10, 2012).

Testimony properly excluded. - Trial court did not err in permitting victim to assert her Fifth Amendment right against self-incrimination because she had pending charges against her for felony child abuse/neglect, and the attorney for the Commonwealth who was prosecuting her on the pending child abuse/neglect charge was present in the courtroom. Palmer v. Commonwealth, 71 Va. App. 225, 835 S.E.2d 80, 2019 Va. App. LEXIS 276 (2019).

Evidence deemed inadmissible. - Appellate court's reversal of the trial court's denial of defendant's motion to suppress an incriminating statement made during police questioning was upheld on appeal, because defendant's third reference to an attorney during the police questioning was an unequivocal request for the presence of counsel and police questioning should have ceased, therefore, the trial court erred by refusing to grant defendant's motion to suppress the statement. Commonwealth v. Hilliard, 270 Va. 42 , 613 S.E.2d 579, 2005 Va. LEXIS 64 (2005).

III. DOUBLE JEOPARDY.

A. GENERAL CONSIDERATION.

Purpose of double jeopardy provision. - The double jeopardy provision is designed to serve as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and to the possibility that he may be found guilty even though innocent. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Guarantees provided by double jeopardy prohibition. - A person may not be put twice in jeopardy for the same offense. This prohibition provides three distinct guarantees. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

The double-jeopardy protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution. Bennefield v. Commonwealth, 21 Va. App. 729, 467 S.E.2d 306 (1996).

The guarantee against double jeopardy is a restraint on the officers of the court, not on the accused. Mack v. Commonwealth, 177 Va. 921 , 15 S.E.2d 62 (1941).

Effect of double jeopardy clause. - The double jeopardy clauses of the United States and Virginia Constitutions bar prosecution of a criminal charge against an accused already convicted of an identical or lesser included offense. Rouzie v. Commonwealth, 215 Va. 174 , 207 S.E.2d 854 (1974).

The double jeopardy clauses forbid not only subsequent punishment but subsequent prosecution. Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658, cert. denied, 435 U.S. 909, 98 S. Ct. 249, 55 L. Ed. 2d 500, 439 U.S. 892, 99 S. Ct. 249, 58 L. Ed. 2d 238 (1978).

The double jeopardy clause of the Constitution will act as a bar to prosecution only if the offenses are identical or if one offense is necessarily included in the other offense. Comer v. Commonwealth, 211 Va. 246 , 176 S.E.2d 432 (1970).

When double jeopardy clause applicable. - The double jeopardy clause applies when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense, and (3) the subsequent offense is lesser-included in the former offense. Martin v. Commonwealth, 221 Va. 720 , 273 S.E.2d 778 (1981).

The double jeopardy clauses of the federal Constitution and of the Virginia Constitution forbid not only subsequent punishment but subsequent prosecution, and those clauses apply not only when the two offenses are identical, but also when the former offense is lesser-included in the subsequent offense and also when the subsequent offense is lesser-included in the former offense. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Not applicable to reprosecution of one whose conviction is overturned on appeal. - The Double Jeopardy Clause is not an absolute bar to successive trials. The general rule is that it does not bar reprosecution of a defendant whose conviction is overturned on appeal save in the limited instance where reversal is required because of insufficient evidence. Robinson v. Commonwealth, 17 Va. App. 551, 439 S.E.2d 622, aff'd upon reh'g en banc, 18 Va. App. 814, 447 S.E.2d 542 (1994).

Not applicable to civil commitment of sexually violent predator. - Virginia's Sexually Violent Predators Act (SVPA) [see now § 37.2-900 et seq.], was affirmed because: (1) there were proper procedures and evidentiary safeguards; (2) the SVPA satisfied the requirement that there be a finding of dangerousness either to one's self or to others; and (3) proof of dangerousness and lack of control was linked to the condition of the person. Furthermore, the SVPA was a non-punitive, civil commitment statute and as such did not violate the guarantees against double jeopardy or ex post facto lawmaking. Shivaee v. Commonwealth, 270 Va. 112 , 613 S.E.2d 570, 2005 Va. LEXIS 68, cert. denied, 546 U.S. 1005, 126 S. Ct. 626, 163 L. Ed. 2d 509 (2005).

In a civil proceeding in which defendant was found to be a sexually violent predator, the introduction of evidence from an earlier criminal trial in which defendant had been tried for rape and acquitted by a jury did not violate double jeopardy protections. Ellison v. Commonwealth, 273 Va. 254 , 639 S.E.2d 209, 2007 Va. LEXIS 15 (2007).

In this State the rule of jeopardy is to be applied in all criminal cases, regardless of the character and degree of the punishment, except for appeals by the Commonwealth in state revenue cases. See Va. Const., Art. VI, § 1. Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919).

Where trial terminated for insufficient evidence. - In an appeal by the Commonwealth of a trial court's order dismissing an indictment against defendant on double jeopardy grounds, the appellate court concluded that the trial court correctly decided that defendant's trial was terminated because there was insufficient evidence to prove that defendant had stolen money from the victim. Defendant was acquitted of grand larceny, and the Commonwealth could not name a different victim and relitigate the issue at a second trial in hopes of achieving a conviction. Commonwealth v. Flythe, No. 0592-15-4, 2015 Va. App. LEXIS 251 (Sept. 1, 2015).

Suspension of driving privileges was civil sanction not subject to double jeopardy protections. - Defendant's conviction for driving under the influence after the suspension of her driving privileges pursuant to § 46.2-391.2 did not violate her double jeopardy rights because, notwithstanding any incidental punitive effect it may have had, the 60-day administrative suspension was a civil sanction and, thus, did not offend double jeopardy protections. Depsky v. Commonwealth, 50 Va. App. 454, 650 S.E.2d 867, 2007 Va. App. LEXIS 372 (2007).

When a person is in jeopardy. - The general rule, supported by the weight of authority and the best considered cases, is that when a person has been placed on trial, on a valid indictment, before a court of competent jurisdiction, has been arraigned, has pleaded, and a jury has been impaneled and sworn, he is in jeopardy. Rosser v. Commonwealth, 159 Va. 1028 , 167 S.E. 257 (1933).

If the Supreme Court were to "rehear, reverse and annul" a judgment of acquittal in a criminal prosecution for violation of a municipal taxing ordinance and enter an order of conviction against the accused, or direct that he be tried again by the lower court for the same offense of which he was there acquitted, the result would be to place the accused "twice in jeopardy" for the same offense, in violation of this section. City of Roanoke v. Donckers, 187 Va. 491 , 47 S.E.2d 440 (1948).

It is generally recognized that a nolle prosequi, if entered before jeopardy attached, does not bar further prosecution for the offense. Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997).

B. MULTIPLE PUNISHMENTS.

Constitutionality of punishment depends on what legislature authorized. - The question of what punishments are constitutionally permissible is not different from the question of what punishment the legislature authorized. The legislature in its discretion may determine the appropriate "unit of prosecution" and set the penalty for separate violations. The double jeopardy clauses prohibit the courts from exceeding the legislative authorization by imposing multiple punishments for the same offense. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

Legislative intent determines multiplicity of offenses. - To determine whether the firing of multiple shots from one vehicle towards another constitutes a single violation or multiple violations of the statutes against maliciously shooting at an occupied motor vehicle and intentionally discharging a firearm from a motor vehicle, the court must determine what punishment was intended and authorized by the legislature; it is judicial punishment in excess of legislative intent which offends the double jeopardy clause. Stephens v. Commonwealth, 35 Va. App. 141, 543 S.E.2d 609, 2001 Va. App. LEXIS 134 (2001), aff'd, 263 Va. 58 , 557 S.E.2d 227 (2002).

Where legislature has authorized cumulative punishments, regardless of whether the offenses are the "same," the prosecutor may seek and the trial court may impose cumulative punishments in a single trial. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

When considering multiple punishments for a single transaction, the controlling factor is legislative intent; although multiple offenses may be the same, an accused may be subjected to legislatively authorized cumulative punishments and it is only judicial punishment in excess of legislative intent which offends the double jeopardy clause. Stephens v. Commonwealth, 35 Va. App. 141, 543 S.E.2d 609, 2001 Va. App. LEXIS 134 (2001), aff'd, 263 Va. 58 , 557 S.E.2d 227 (2002).

Fine and jail sentence does not constitute double jeopardy. - The imposition of a jail sentence by the court, in addition to the fine fixed by the jury, does not constitute double jeopardy within the meaning of this section. Bracy v. Commonwealth, 119 Va. 867 , 89 S.E. 144 (1916).

Double jeopardy not violated. - Although defendant was convicted of five charges of capital murder, each based separately upon proof beyond a reasonable doubt, the jury fixed only one death sentence for each victim. Under these circumstances, he was not subjected to multiple punishments for what he claimed was the same act or offense. Williams v. Commonwealth, 248 Va. 528 , 450 S.E.2d 365 (1994), cert. denied, 515 U.S. 1161, 115 S. Ct. 2616, 132 L. Ed. 2d 858 (1995).

Because a jury determined that defendant engaged in a felony hit-and-run, § 18.2-33, when she fatally struck the pedestrian and that she was driving while intoxicated and in a manner so gross, wanton, and culpable as to show a reckless disregard for human life in violation of subsection B of § 18.2-36.1 when she struck and killed the pedestrian, while the separate criminal offenses each resulted in the death of a single victim, the convictions and punishments imposed did not violate the constitutional prohibition against double jeopardy. Payne v. Commonwealth, 52 Va. App. 120, 661 S.E.2d 513, 2008 Va. App. LEXIS 265 (2008).

Because the General Assembly clearly and unambiguously intended that grand larceny and larceny with intent to sell or distribute (in violation of §§ 18.2-95 and 18.2-108.01, respectively) were to be punished separately, no double jeopardy violation occurred. Tharrington v. Commonwealth, 58 Va. App. 704, 715 S.E.2d 388, 2011 Va. App. LEXIS 296 (2011).

Defendant's felony convictions for possession of materials with which explosive materials could be made with intent to manufacture such materials in violation of clause (i) of this section and possession of explosive materials in violation of clause (ii) of this section did not violate the Double Jeopardy Clauses of the United States and Virginia Constitutions even though defendant had been convicted of violating Norfolk City, Va., Code §§ 17.1-43 and 17.1-44(25) because each of the misdemeanor and felony offenses required an element of proof the other offenses did not; sections 17.1-43 and 17.1-44(25) required findings of a dangerous condition liable to cause or contribute to a fire and that a defendant possessed or manufactured fireworks, convictions under clauses (i) and (ii) did not, and a conviction under clause (ii) required a showing that defendant possessed prohibited items other than fireworks. Saunders v. Commonwealth, No. 1195-10-1, 2011 Va. App. LEXIS 384 (Dec. 6, 2011).

Circuit court properly found defendant guilty of violating the terms and conditions of his probation and revoked the remaining two years of his suspended sentence because the double jeopardy protections of the federal and state constitutions did not apply in probation violation proceedings and defendant did not provide a sufficient record for the appellate court to determine whether or not he was not provided his minimal due process rights required in the probation violation hearing. Green v. Commonwealth, 65 Va. App. 524, 779 S.E.2d 207, 2015 Va. App. LEXIS 352 (2015).

Firing multiple shots from one motor vehicle towards another. - The statute against maliciously shooting at an occupied motor vehicle and the statute against intentionally discharging a firearm from a motor vehicle do not proscribe a continuous course of conduct; rather, each offense is complete upon the firing of one shot when the life of another is endangered and a defendant who fires multiple shots from one motor vehicle towards another may thus be convicted of multiple violations of the two statutes. Stephens v. Commonwealth, 35 Va. App. 141, 543 S.E.2d 609, 2001 Va. App. LEXIS 134 (2001), aff'd, 263 Va. 58 , 557 S.E.2d 227 (2002).

C. ATTACHMENT.

Attachment of jeopardy in nonjury trial. - In a trial before a court without a jury, the danger of conviction or jeopardy of an accused begins when the trial has reached the stage where the Commonwealth begins to introduce its testimony. Greenwalt v. Commonwealth, 224 Va. 498 , 297 S.E.2d 709 (1982).

In this case, the district court's pretrial granting of the Commonwealth's motion to nolle prosequi the charges occurred before the Commonwealth presented any evidence, before any witnesses were sworn, and therefore, before jeopardy attached. Cummings v. Commonwealth, 24 Va. App. 248, 481 S.E.2d 493 (1997).

Pursuit of de novo trial after plea bargain. - A general district court's acceptance of a guilty plea to a lesser-included offense does not constitute an acquittal of a greater offense so as to preclude prosecution for the greater offense if the defendant pursues a de novo trial in the circuit court. Under such circumstances, the defendant does not suffer prosecution after acquittal and, therefore, his double jeopardy rights are not violated. Easter v. Commonwealth, 31 Va. App. 714, 525 S.E.2d 592 (2000).

Juvenile proceedings are civil, and jeopardy does not attach in such proceedings to bar subsequent prosecution on a grand jury indictment. Lewis v. Commonwealth, 214 Va. 150 , 198 S.E.2d 629 (1973).

Motion for nolle prosequi preceded the attachment of jeopardy. - Because motion for nolle prosequi on a misdemeanor petit larceny charge preceded the attachment of jeopardy, and because a finding that a conviction report did not establish probable cause of defendant's prior convictions was not a judgment that the prior convictions did not exist, the trial court properly dismissed defendant's claims of double jeopardy, collateral estoppel, and res judicata. Painter v. Commonwealth, 47 Va. App. 225, 623 S.E.2d 408, 2005 Va. App. LEXIS 521 (2005).

D. OFFENSES.

1. DETERMINATION AS TO WHETHER SAME OFFENSE.

The identity of the offense, and not of the act, is referred to in the constitutional guarantee against putting a person twice in jeopardy. Lawrence v. Commonwealth, 181 Va. 582 , 26 S.E.2d 54 (1943); Comer v. Commonwealth, 211 Va. 246 , 176 S.E.2d 432 (1970); Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964); Martin v. Commonwealth, 221 Va. 720 , 273 S.E.2d 778 (1981).

A test of the identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964).

In determining whether both indictments charged the same offense the test generally applied is that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second, but if the facts which will convict on the second prosecution would not necessarily have convicted on the first, then the first will not be a bar to the second, although the offenses charged may have been committed by the same state of facts. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964).

Offenses are identical if the facts required to convict of one would necessarily convict of the other. Rouzie v. Commonwealth, 215 Va. 174 , 207 S.E.2d 854 (1974).

In Virginia and elsewhere, the "same evidence" test is the standard for determining whether different offenses are deemed the same for double jeopardy purposes. To determine whether two offenses are different, the test is whether one offense requires proof of an additional fact which the other does not, even though each offense may arise from the same transaction and some of the same acts may be necessary to prove both. If proof of an additional fact is required, an acquittal or conviction under either is not a bar to prosecution and conviction under the other. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

Because defendant's murder and conspiracy offenses each required proof of a fact that the other did not, the Blockburger test was satisfied, the charged offenses did not constitute the "same offense" for purposes of double jeopardy, and the imposition of consecutive sentences for defendant's convictions did not violate the constitutional guarantee against double jeopardy. Schwartz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631, 2005 Va. App. LEXIS 156 (2005).

A single occurrence may constitute two or more distinct offenses and the accused may be prosecuted for each offense. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964).

An accused may be tried under separate indictments for different offenses arising out of the same incident without violating the constitutional provisions of double jeopardy. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

Two or more distinct and separate offenses may grow out of a single incident or occurrence, warranting the prosecution and punishment of an offender for each. Martin v. Commonwealth, 221 Va. 720 , 273 S.E.2d 778 (1981).

But the State cannot split up a single crime and prosecute it in parts. - Where defendant struck another person on the head with a gun and within 30 to 60 seconds thereafter, as a part and parcel of one encounter, shot the same person in the neck, a single crime was committed which could not be split and prosecuted in parts to conviction of more than one offense. Campbell v. Commonwealth, 201 Va. 507 , 112 S.E.2d 155 (1960).

If an accused is prosecuted for multiple offenses based upon distinct and separate acts, the offenses would be neither identical nor lesser-included for double jeopardy purposes. Martin v. Commonwealth, 221 Va. 720 , 273 S.E.2d 778 (1981).

The "same conduct" rule. - In Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), the Supreme Court held that, even though the second of two successive prosecutions may not be barred by the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), the second prosecution is barred if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

State conceded that defendant's convictions for possession of a firearm after having been convicted of a felony, as well as carrying a concealed weapon after having been convicted of a felony, both in violation of § 18.2-308.2, violated defendant's double jeopardy rights since the convictions were predicated on the same act; as a result, one of the convictions had to be reversed. Perez v. Commonwealth,, 2006 Va. App. LEXIS 436 (Oct. 3, 2006).

Obstruction of justice did not constitute "same conduct" to bar prosecution of attempted murder. Where defendant was first convicted of, inter alia, obstruction of justice by threats or force (a misdemeanor) and later convicted of attempted murder (a felony), the "same conduct" rule enunciated in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990), did not apply to bar prosecution of the charge of attempted murder on principles of double jeopardy. Martin v. Commonwealth, 242 Va. 1 , 406 S.E.2d 15, cert. denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 339 (1991).

"Unit of prosecution" in robbery cases is number of persons from whom property separately taken. - Because the essential character of both § 18.2-58 and common-law robbery is violence against a person for the purpose of theft, the appropriate "unit of prosecution" for double jeopardy purposes is determined by the number of persons from whose possession property is taken separately by force or intimidation. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

2. SEPARATE OFFENSES.

The common-law crime of robbery and the crime defined in § 18.2-53.1 (use or display of a firearm in committing certain felonies) are separate and distinct offenses for double jeopardy purposes. Jones v. Commonwealth, 218 Va. 18 , 235 S.E.2d 313 (1977).

Robbery and petit larceny. - Where the two offenses of which the defendant stands convicted were based upon distinct and separate acts and did not involve the same theft, the defendant has not suffered any deprivation of his double jeopardy guarantees, and his conviction of both robbery and petit larceny will be affirmed. Martin v. Commonwealth, 221 Va. 720 , 273 S.E.2d 778 (1981).

Robberies from coemployees of employer's money constituted separate offenses. - Where defendant pointed a gun at a restaurant employee and demanded that he turn over money in a cash register and he also threatened another employee and demanded that he turn over money from his pockets, although the money yielded by the two employees was the property of their employer, both employees were subjected to the threat of violence by the presenting of firearms as money was taken from each of them. Therefore, defendant committed the two robberies of which he was convicted; thus, the trial court's imposition of separate sentences for the robbery of each of the two employees did not punish defendant twice for the "same offense." Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E.2d 152 (1986).

Offenses occurred at separate times and places. - Because the felony obstruction of justice prosecution was not based on the same act as the misdemeanor obstruction of justice conviction, neither § 19.2-294 nor Va. Const., Amend. I, § 8, barred his prosecution for felony obstruction of justice. Roach v. Commonwealth, 51 Va. App. 741, 660 S.E.2d 348, 2008 Va. App. LEXIS 212 (2008).

Defendant was not prosecuted twice for the same offense of distribution of cocaine in violation of § 18.2-248 because all parties were aware at all stages of the proceedings that there were two transactions that occurred on the same date, in different locations, at different times, involving different drugs, which in turn led to separate certificates of analysis. Because defendant's second trial involved separate acts, the Blockburger test was inapplicable. Lappegard v. Commonwealth, No. 2111-08-4, 2009 Va. App. LEXIS 379 (Ct. of Appeals Aug. 25, 2009).

There were at least two separate and distinct attacks on the shooting victim, supporting two attempted malicious wounding convictions, when defendant and accomplices attempted to steal firearms and a gun battle erupted when the occupants of the property returned while defendant and the accomplices were still there. One of the accomplices fired shots at the victim when the victim arrived, while defendant fired shots at the victim when defendant drove off - which constituted separate acts at separate times of attempted malicious wounding. Blowe v. Commonwealth, No. 1189-18-2, 2019 Va. App. LEXIS 221 (Ct. of Appeals Oct. 8, 2019).

Reckless driving and involuntary manslaughter are two separate and distinct offenses, and acquittal of reckless driving does not constitute a bar to prosecution for involuntary manslaughter. Dykeman v. Commonwealth, 201 Va. 807 , 113 S.E.2d 867 (1960).

Reckless driving and felony eluding. - Defendant's conviction of felony eluding (subsection B of § 46.2-817) after he pled guilty to reckless driving arising out of the same incident did not violate the double jeopardy ban; as subsection B of § 46.2-817 states that a violation thereof is a separate offense, the legislature authorized the imposition of multiple punishments in conjunction with other statutes. Hall v. Commonwealth, No. 1731-11-2, 2012 Va. App. LEXIS 306 (Ct. of Appeals Oct. 2, 2012).

Reckless driving statute, § 46.2-852, and the felony eluding statute, subsection B of § 46.2-817, are not the "same offense" for double jeopardy purposes, as different facts are required to prove each; therefore, defendant's conviction of felony eluding after he pled guilty to reckless driving did not violate the double jeopardy ban. Hall v. Commonwealth, No. 1731-11-2, 2012 Va. App. LEXIS 306 (Ct. of Appeals Oct. 2, 2012).

Solicitation to commit murder and attempted capital murder for hire. - Defendant's double jeopardy rights under Va. Const., Art. I, § 8 were not violated in a case where defendant pled guilty to solicitation to commit murder in violation of § 18.2-29 and a jury then convicted defendant in a trial of attempted capital murder for hire in violation of subdivision 2 of § 18.2-31 and § 18.2-25. Double jeopardy did not apply because: (1) defendant's offenses were considered in a single proceeding and, thus, there were not successive prosecutions for the same offense; and (2) solicitation to commit murder and attempted capital murder for hire were not the same offenses and, thus, defendant could be convicted and punished for both offenses since solicitation for murder required that a defendant solicit another person whereas attempted capital murder for hire did not require such proof. Ostrander v. Commonwealth, 51 Va. App. 386, 658 S.E.2d 346, 2008 Va. App. LEXIS 126 (2008).

Prosecution for sodomy following a conviction for indecent exposure is not barred by the double jeopardy provisions of this section as the elements of indecent exposure are not included in the elements of sodomy. Ashby v. Commonwealth, 208 Va. 443 , 158 S.E.2d 657 (1958), cert. denied, 386 U.S. 1014, 87 S. Ct. 1364, 18 L. Ed. 2d 448 (1967); 393 U.S. 1111, 89 S. Ct. 884, 21 L. Ed. 2d 808 (1969).

Single criminal conspiracy to distribute drugs can be prosecuted as multiple, divisible conspiracies merely because several illegal drugs were distributed, and such prosecutions and convictions do not violate the double jeopardy guarantees against the imposition of multiple punishment for the same offense. Wooten v. Commonwealth, 235 Va. 89 , 368 S.E.2d 693 (1988).

Possession of drugs with intent to distribute. - Two convictions for possession of drugs with intent to distribute within 1,000 feet of a school under § 18.2-255.2 did not violate the Double Jeopardy Clause under U.S. Const., Amend. V and Va. Const., Art. I, § 8 as marijuana and cocaine were treated in the Virginia Code as separate and discrete illegal substances under §§ 18.2-250, 18.2-250.1, and 54.1-3448. Fullwood v. Commonwealth, 54 Va. App. 153, 676 S.E.2d 348, 2009 Va. App. LEXIS 224 (2009), aff'd, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Defendant's convictions of one count of possessing marijuana and one count of possessing cocaine with intent to distribute within 1,000 feet of a school while upon public property or property open to public use in violation of § 18.2-255.2 did not violate his rights against double jeopardy because there was one transaction involving marijuana in defendant's encounter in the parking lot with a driver of the pickup truck and a second transaction involving cocaine in defendant's meeting in the parking lot with the driver wearing a Hoyas jacket. Fullwood v. Commonwealth, 279 Va. 531 , 689 S.E.2d 742, 2010 Va. LEXIS 39 (2010).

Convictions for manufacturing PCC and PCP did not violate double jeopardy principles, since proof of each charge required evidence not required in proof of the other charge, in that each required evidence of the manufacture of a different final product. Witterman v. Commonwealth, No. 1313-85 (Ct. of Appeals Oct. 26, 1987).

Abduction and carjacking. - Where the acts constituting abduction and carjacking were separate and distinct, double jeopardy did not attach. Barron v. Commonwealth, No. 1798-02-3, 2003 Va. App. LEXIS 358 (Ct. of Appeals June 24, 2003).

Separate offenses of grand larceny. - Defendant did not show that defendant's Va. Const., Art. I, § 8, double jeopardy rights were violated when the trial court, after defendant pled guilty, denied defendant's motion to consolidate the separate grand larceny indictments filed against defendant. The indictments, which alleged separate offenses committed on the same day and against the same victim, did not on their face show a double jeopardy violation, no such violation was shown on the record, and defendant's guilty pleas to the separate offenses foreclosed consideration of a double jeopardy violation claim on appeal. Johns v. Commonwealth,, 2008 Va. App. LEXIS 74 (Feb. 12, 2008).

Cruelty to animals. - Pet owner's right to be free from being put in double jeopardy in violation of Va. Const., Art. I, § 8 was not at risk when the pet owner was tried in a bench trial for not adequately providing proper care to the pets in violation of § 3.2-6570. That statute's civil remedies were not sufficiently punitive in nature such that the pet owner was being criminally punished for providing inadequate pet care to 20 animals. Davis v. County of Fairfax, No. 1697-08-4, 2009 Va. App. LEXIS 346 (Aug. 4, 2009), rev'd, on other grounds, 282 VA. 23, 710 S.E.2d 466, 2011 Va. LEXIS 125 (2011).

3. LESSER-INCLUDED OFFENSES.

In general. - The double jeopardy clauses apply not only when the two offenses are identical, but also when the former offense is lesser-included in the subsequent offense. Jones v. Commonwealth, 218 Va. 757 , 240 S.E.2d 658, cert. denied, 435 U.S. 909, 98 S. Ct. 249, 55 L. Ed. 2d 500, 439 U.S. 892, 99 S. Ct. 249, 58 L. Ed. 2d 238 (1978), overruled in part by Commonwealth v. Hudgins, 269 Va. 602 , 611 S.E.2d 362 (2005).

Cruelty to animals and failure to provide care separate offenses. - Defendant's convictions in the circuit court for cruelty to animals in violation of § 3.1-796.122 after defendant had already been convicted in district court for failure to provide care for the same animals under § 3.1-796.68, did not violate the double jeopardy provisions of either the United States Constitution or the Virginia Constitution because the offenses were not the same offense and the failure to care offense was not a lesser included offense of the cruelty offense. Hillman v. Commonwealth, No. 1211-01-3, 2002 Va. App. LEXIS 195 (Ct. of Appeals Apr. 2, 2002).

Grand larceny and robbery. - Defendant's prosecution for grand larceny from the person, arising out of the same incident as a robbery charge of which he had been acquitted, was barred by the collateral estoppel element of double jeopardy because, when defendant was acquitted of robbery, he was necessarily acquitted of the lesser offense of petit larceny, and he, therefore, met his burden of showing that the issue he sought to preclude had been decided in the robbery prosecution. Hudgins v. Commonwealth, 40 Va. App. 1, 577 S.E.2d 505, 2003 Va. App. LEXIS 97 (2003).

After defendant was acquitted of robbery, the charge of grand larceny from the person was not a lesser included offense of the robbery charge because the robbery indictment did not allege the stolen property's value or that it was taken from the victim's person, while the grand larceny of the person indictment did allege that value and that the property was taken from the victim's person. Hudgins v. Commonwealth, 40 Va. App. 1, 577 S.E.2d 505, 2003 Va. App. LEXIS 97 (2003).

Trial court erred in reducing the robbery charge in the indictment against defendant to grand larceny because grand larceny was not a lesser included offense of robbery, as all the elements of grand larceny were not included in robbery. However, petit larceny was a lesser-included offense of robbery because all of the elements of petit larceny were contained in robbery. Dufresne v. Commonwealth, No. 0281-15-2, 2016 Va. App. LEXIS 38 (Feb. 9, 2016).

Forcible sodomy and carnal knowledge. - Convictions of both forcible sodomy and carnal knowledge violate the federal and State Constitutional protections against double jeopardy. Every instance of cunnilingus, fellatio, analingus, or anal intercourse in violation of subsection A of § 18.2-67.1 also constitutes a violation of § 18.2-361. Moreover, there is no indication that the legislature intended that two punishments be imposed for the same act. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

Rape and carnal knowledge. - The Commonwealth did not violate defendant's right against double jeopardy under the federal or state Constitutions by seeking an indictment for carnally knowing a child under 14 years of age without the use of force, in violation of § 18.2-63, after a rape charge that had been filed against defendant was dismissed on speedy trial grounds, as carnal knowledge is not a lesser included offense of rape. Ragsdale v. Commonwealth, 38 Va. App. 421, 565 S.E.2d 331, 2002 Va. App. LEXIS 366 (2002).

Child pornography. - Possession of child pornography is not a lesser-included offense of production of child pornography because one can commit the offense of production of child pornography without ever possessing that child pornography. Therefore, the offenses were not the same offenses for double jeopardy purposes and the trial court did not err in convicting and punishing defendant separately for each offense. Servais v. Commonwealth, No. 0297-19-3, 2020 Va. App. LEXIS 130 (Apr. 28, 2020).

E. DISCHARGE, DISMISSAL, AND ACQUITTAL.

Discharge of jury is not sufficient to support plea of former jeopardy. - A trial court may, in the exercise of a sound discretion, discharge a jury without the consent of the accused when there exists a manifest necessity therefor or the ends of public justice so require, and such discharge will not support a plea of former jeopardy. Mack v. Commonwealth, 177 Va. 921 , 15 S.E.2d 62 (1941).

Counsel for accused, by his misconduct, voluntarily injected into the case illegal evidence highly prejudicial to the rights of the Commonwealth, whereupon, the court, on motion of the Commonwealth, discharged the jury. On the second trial accused interposed the plea of former jeopardy. It was held that there was no merit in this plea. Mack v. Commonwealth, 177 Va. 921 , 15 S.E.2d 62 (1941).

A legal dismissal might not qualify as an acquittal for double jeopardy purposes because its effect could result in a termination of the proceedings against the defendant on a basis unrelated to factual guilt or innocence. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Dismissal based on factual defense qualifies as acquittal. - The double jeopardy provisions of the federal and state Constitutions protect against a second prosecution for the same offense after an acquittal. A dismissal qualifies as an acquittal for double jeopardy purposes when it is granted pursuant to a factual, as opposed to a legal, defense. Greenwalt v. Commonwealth, 224 Va. 498 , 297 S.E.2d 709 (1982).

Dismissal of lesser-included offense not required upon vacation of felony conviction. - Dismissal of lesser-included offense of misdemeanor distribution was not required where the appellant was not acquitted of that charge for double jeopardy purposes by the trial court's post-trial ruling; jury's verdict of guilty on the felony charge established that sufficient evidence was presented at trial to sustain a verdict for misdemeanor distribution; the trial judge committed reversible error in not granting the initial motion to strike the felony charge and allowing the matter to be submitted to the jury only on the lesser-included charge; and the appellant successfully moved the trial judge to set aside the original verdict in this case because of trial error and, therefore, jeopardy continues on the lesser-included charge until the matter is completed in a defect-free proceeding. Gorham v. Commonwealth, 15 Va. App. 673, 426 S.E.2d 493 (1993).

A defendant is acquitted for double jeopardy purposes where the ruling of the trial judge represents a resolution in the defendant's favor, correct or not, of some or all of the factual elements of the offenses charged. This permits a court to distinguish between a dismissal granted pursuant to a legal defense and a dismissal granted pursuant to a factual defense. The latter would qualify as an acquittal for double jeopardy purposes. Johnson v. Commonwealth, 221 Va. 736 , 273 S.E.2d 784, cert. denied, 454 U.S. 920, 102 S. Ct. 422, 70 L. Ed. 2d 231 (1981).

Nolle prosequi without consent of accused. - After the jury has been sworn, if a nolle prosequi is entered and the indictment is dismissed without the consent of the accused, it amounts to an acquittal and bars further prosecution for the same crime unless there be manifest an urgent necessity for the entry of the nolle prosequi. Rosser v. Commonwealth, 159 Va. 1028 , 167 S.E. 257 (1933); Mack v. Commonwealth, 177 Va. 921 , 15 S.E.2d 62 (1941).

Mistrial with acquittal on some charges. - Where defendant was acquitted of some charges in a prior trial and a mistrial was declared on the remaining charges, neither collateral estoppel nor double jeopardy precluded a second trial on the remaining charges. Page v. Commonwealth, 40 Va. App. 703, 581 S.E.2d 233, 2003 Va. App. LEXIS 317 (2003).

F. REINDICTMENT AND RETRIAL.

Reindictment on original offense after appeal de novo to circuit court. - Double jeopardy is not violated where a defendant is reindicted on the original offense after an appeal de novo to the circuit court because the plea-based conviction is thereby vacated and jeopardy continues until a final conviction is rendered. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

Reinstatement of original charges after appeal of guilty plea. - There is no prosecutorial vindictiveness where the prosecution merely reinstates the original charges after a defendant appeals his plea-bargained guilty plea. Therefore, the defendant's due process rights were not violated. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

Time of retrial. - When, as here, the trial of an accused has been commenced within the applicable time period prescribed by statute and, on appeal, a conviction is reversed and the case remanded for retrial, the time for retrial rests within the discretion of the trial court, a discretion measured and controlled by the constitutional standards of reasonableness and fairness; upon retrial following reversal on appeal, the right of the accused to a speedy trial is governed exclusively by the constitutional mandate. Johnson v. Commonwealth, 252 Va. 425 , 478 S.E.2d 539 (1996).

Unanimity requirement not bar to retrial. - Where defendant was convicted of intentionally discharging a firearm while in a motor vehicle, and where jury deadlocked in an earlier trial on the charge and a mistrial was declared, the jury unanimity requirement of this section does not prohibit the Commonwealth from trying him again on the charge. Holloman v. Commonwealth, 23 Va. App. 183, 475 S.E.2d 815 (1996).

Retrial for same or greater offense after appeal to circuit court. - When the defendant appealed her misdemeanor possession conviction to the circuit court, as she had a right to do under § 16.1-132, her conviction was vacated; therefore, the defendant could be retried for the same or a greater offense without double jeopardy being violated. Peterson v. Commonwealth, 5 Va. App. 389, 363 S.E.2d 440 (1987).

Where a petitioner challenged the sufficiency of the evidence used to convict him of possession of marijuana and LSD with intent to distribute, and where the district court upheld his challenge, the Commonwealth could not be permitted the option to retry the petitioner, for a retrial would be in violation of the double jeopardy clause. Bentley v. Cox, 508 F. Supp. 870 (E.D. Va. 1981).

Retrial precluded after swearing in of witness and dismissal on Commonwealth's refusal to proceed. - Where the trial court ruled against prosecuting defendant on a felony charge, but found probable cause supporting a misdemeanor charge, and accordingly swore in a witness, whom the Commonwealth attorney refused to question, stating he wished to secure a grand jury for a felony charge, after which the judge properly dismissed the case, the Commonwealth Attorney could not prosecute the case anew on a felony charge, as double jeopardy attached. The Commonwealth had the opportunity to question the sworn witness, the defendant had risked a determination of guilt, and absent manifest necessity defendant could not be retried for the same offense. Goolsby v. Hutto, 529 F. Supp. 92 (E.D. Va. 1981), aff'd, 691 F.2d 199 (4th Cir. 1982).

Retrial barred absent manifest necessity for mistrial. - Where there is no manifest necessity for granting the mistrial, defendant may not be retried for to do so would place defendant twice in jeopardy for the same offense in violation of the Fifth Amendment to the Constitution of the United States and this section. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

Trial court abused its discretion by declaring a mistrial over defendant's objection because the record was bereft of any evidence clearly reflecting that the trial court considered any less drastic alternatives and as a result, the record did not support a ruling that the mistrial was manifestly necessary at the time it was declared; Because the sua sponte mistrial during defendant's first trial was granted in error, defendant was twice placed in jeopardy when he was tried on the same indictments before a different jury during his second trial, and therefore the trial court erred by denying defendant's motion to dismiss the indictments. Minitee v. Commonwealth, No. 1054-19-2, 2020 Va. App. LEXIS 298 (Dec. 8, 2020).

Prosecutorial conduct, even if viewed as harassment or overreaching and sufficient to justify a mistrial, does not bar retrial absent proof of intent on the part of the prosecutor to subvert the protections afforded by the double jeopardy clause. Robinson v. Commonwealth, 17 Va. App. 551, 439 S.E.2d 622, aff'd upon reh'g en banc, 18 Va. App. 814, 447 S.E.2d 542 (1994).

Reindictment for capital murder permitted where subsequent indictment is based on a gradation offense. - Indictment for capital murder during the commission of or subsequent to attempted rape did not violate defendant's double jeopardy protection despite having been indicted once for capital murder since the first indictment was not based on a gradation offense. Powell v. Commonwealth, 267 Va. 107 , 590 S.E.2d 537, 2004 Va. LEXIS 6, cert. denied, 543 U.S. 892, 125 S. Ct. 86, 160 L. Ed. 2d 157 (2004).

G. PRACTICE AND PROCEDURE.

1. IN GENERAL.

The double jeopardy bar cannot be avoided by the merger theory, according to which upon return of felony indictments, misdemeanor convictions merged into the felonies and judgments of municipal court were thereby rendered null and void. Rouzie v. Commonwealth, 215 Va. 174 , 207 S.E.2d 854 (1974).

Objection must be raised in writing before trial. - Because the plain language of § 19.2-266.2 requires without exception that defense motions or objections seeking dismissal of an indictment on the ground that the defendant would be twice placed in jeopardy in violation of the provisions of the Fifth Amendment to the Constitution of the United States or Va. Const., Art. I, § 8, be raised in writing before trial, a defendant must raise such an objection in writing before trial to preserve his or her objection, even if the trial court may be incapable of ruling on the motion until after the defendant is convicted and sentenced. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Accused may waive his right to plead former jeopardy, and such waiver may be expressed or implied. Mack v. Commonwealth, 177 Va. 921 , 15 S.E.2d 62 (1941).

Defendant waived his objection that double jeopardy barred his multiple convictions for violations of § 20-61 because defendant failed to raise his double jeopardy objection in writing before trial, as required by § 19.2-266.2; defendant did not argue that the good cause or ends of justice exception to § 19.2-266.2 had to be invoked. Williams v. Commonwealth, 57 Va. App. 750, 706 S.E.2d 530, 2011 Va. App. LEXIS 96 (2011).

Attempted rape and abduction charges to jury. - Where trial court allowed charges of attempted rape and abduction to go to the jury, defendant was not placed in double jeopardy. Johnson v. Commonwealth, 221 Va. 872 , 275 S.E.2d 592 (1981).

Burden of proof is on defendant to show that second prosecution is barred by double jeopardy. Robinson v. Commonwealth, 17 Va. App. 551, 439 S.E.2d 622, aff'd upon reh'g en banc, 18 Va. App. 814, 447 S.E.2d 542 (1994).

Juvenile proceedings. - A 17-year-old defendant asserting double jeopardy was not denied the "essentials of due process and fair treatment" when his cases were removed to the court of record for a criminal trial after commitment by the juvenile court. Lewis v. Commonwealth, 214 Va. 150 , 198 S.E.2d 629 (1973).

Mistrial granted because of improper impeachment of witness. - The trial judge did not commit error in granting a mistrial when counsel for the petitioner attempted to cross-examine the complaining witness, using statements that the complaining witness made to a doctor concerning her use of birth control devices, in order to discredit her testimony that she delayed reporting of forcible sodomy because of shame and embarrassment. In re Fox, No. 0116-85 (Ct. of Appeals Mar. 19, 1985).

Federal court declining to intervene in double jeopardy question. - The courts of the Commonwealth of Virginia, including the Virginia Supreme Court itself, have determined in this particular case, and under the existing law of Virginia, that a stay is not warranted. Federal courts have no right to sit in judgment of such determinations of state constitutional law, where, as here, the federal right has been protected. They have even less right to do so (if that is possible) on the strength of nothing more than a guess, based upon a vote by an intermediate state court to rehear a case en banc, as to how state law might develop in the future. That ultimately the state double jeopardy right might develop so as to provide broader protection that the federal counterpart is of no moment for defendant's federal double jeopardy claim. Virginia v. Kelly, 29 F.3d 145 (4th Cir. 1994).

2. EVIDENCE.

Evidence of other offenses. - The safeguard to a fair trial for a defendant who is confronted with properly admitted evidence of offenses for which he is not then being tried, is in a clear and specific instruction explaining the purpose for which the evidence is admitted and the limited consideration it may be given by the jury. Marshall v. Commonwealth, 5 Va. App. 248, 361 S.E.2d 634 (1987).

Evidence offered at trial thereafter offered to prove related offense. - There is no constitutional or statutory guarantee that evidence offered upon the trial of an accused person for a different offense from that of which he was either convicted or acquitted may not thereafter be offered to prove a distinct but related offense. Miles v. Commonwealth, 205 Va. 462 , 138 S.E.2d 22 (1964).

Proof of rape as predicate offense for attempted capital murder. - Defendant's conviction in city for the rape that occurred there did not bar proof of that rape as a predicate offense in his prosecution in neighboring county for attempted capital murder. Curtis v. Commonwealth, 13 Va. App. 622, 414 S.E.2d 421 (1992).

Defendant failed to prove double jeopardy. - There was no double jeopardy violation in prosecuting defendant for embezzlement from her employer's clinic in Tazewell County after she pled guilty to embezzlement from a different clinic in Russell County owned by the same employer, because, although § 19.2-245 allowed a prosecution wholly in Russell County for the embezzlement occurring in both Tazewell County and Russell County, defendant failed to prove that the Russell County conviction encompassed same embezzlement for which she was indicted in Tazewell County. Hatfield v. Commonwealth, No. 1972-07-3, 2008 Va. App. LEXIS 486 (Ct. of Appeals Nov. 4, 2008).

H. APPEAL.

Rights of accused on appeal by Commonwealth. - This section incorporated for the first time, in the fundamental written law of the State, the well known common-law doctrine of former jeopardy. When the purpose of an appeal in a criminal case is to procure on behalf of the State a reversal of the judgment and a new trial of the accused (as distinguished from a mere review and decision of the legal question involved for use as a precedent in future cases), the rule against a second jeopardy for the same offense operates proprio vigore to destroy the right of appeal. The matter is jurisdictional, and the accused is not obliged, first, to abide the result of the appeal, and, in the event of a reversal, resort to his plea of former jeopardy to avoid a second trial. Commonwealth v. Perrow, 124 Va. 805 , 97 S.E. 820 (1919).

Appeal from conviction of lesser included offense. - When a warrant charges an accused with an offense of several grades, and on his trial in a court not of record he is acquitted of the greater offense and convicted of the lesser included offense, on appeal from that conviction the defendant is not placed in the same position as to the offense of which he was acquitted as if no trial had been had. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

One who was tried in a court not of record on a warrant charging him with driving under the influence of alcohol, and who was convicted of the lesser included offense of impaired driving, may not be tried and convicted of driving under the influence of intoxicants on an appeal of his conviction to the corporation court. Buck v. City of Danville, 213 Va. 387 , 192 S.E.2d 758 (1972).

Although a circuit court had discretion under § 16.1-137 to amend a defective warrant, defendant's double jeopardy rights were violated when the circuit court, in an appeal de novo under § 16.1-136, improperly amended the warrant to charge driving under the influence (DUI) second offense under § 18.2-266 after defendant had been acquitted of that charge by a district court, which had then convicted defendant of a lesser offense of DUI first offense. Turner v. Commonwealth, 49 Va. App. 381, 641 S.E.2d 771, 2007 Va. App. LEXIS 78 (2007).

Defendant preserved the double jeopardy issue for appeal. - Where defense counsel stated in a discussion with the judge that the indictments of sodomy and carnal knowledge ought to be struck, although the argument was not precisely framed as an objection, this colloquy sufficed to present the issue to the trial judge. Moreover, the trial judge's response was a clear acknowledgment that he understood the issue. Chaine v. Commonwealth, 17 Va. App. 179, 436 S.E.2d 187 (1993), aff'd upon reh'g en banc, 18 Va. App. 301, 443 S.E.2d 924 (1994).

IV. RIGHT TO DEMAND CAUSE AND NATURE OF ACCUSATION.

In all cases a person has the right to demand the cause of the complaint. - In all cases, civil as well as criminal, a person hailed into court has the right to demand that he be told in plain, intelligent language what is the cause of the complaint against him; and this right, insofar as it relates to crimes, is guaranteed by both the federal and state Constitutions. Pine v. Commonwealth, 121 Va. 812 , 93 S.E. 652 (1917).

An accused is entitled to be clearly informed of the charge against him. Baker v. Commonwealth, 225 Va. 192 , 300 S.E.2d 788 (1983).

A criminal defendant enjoys the right to be advised of the cause and nature of the accusation lodged against him and this right is fully honored by §§ 19.2-220 and 19.2-221. Simpson v. Commonwealth, 221 Va. 109 , 267 S.E.2d 134 (1980).

Every person accused of the commission of a crime and brought into court as a defendant has the right to demand and to be told in plain language the complaint against him, and where intent is an element of the crime charged, it must be set out in the indictment. Spear v. Commonwealth, 221 Va. 450 , 270 S.E.2d 737 (1980).

But the legislature may fix time of demand. - The Constitution gives to the accused the right to demand the cause and nature of his accusation, and this right cannot be taken away from him, but there is no inhibition on the legislature to fix a stage of the procedure beyond which he cannot go in the assertion of his constitutional right. Farewell v. Commonwealth, 167 Va. 475 , 189 S.E. 321 (1937).

While the Constitution guarantees every man the right to demand the cause and nature of his accusation, it does not prescribe the manner of compliance, and the legislature may satisfy the constitutional imperative by presentment, information, indictment or any other manner. Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001).

The manner in which demand is to be complied with is not prescribed. - While the Constitution guarantees to every man the right to demand "the cause and nature of his accusation," it does not prescribe the manner in which this demand shall be complied with. It does not require that it shall be by indictment, or in any other prescribed manner. It may be by presentment or information, or in any other manner the legislature may provide. Pine v. Commonwealth, 121 Va. 812 , 93 S.E. 652 (1917); Forester v. Commonwealth, 210 Va. 764 , 173 S.E.2d 851 (1970).

And the right to demand may be waived. - The right guaranteed by the Constitution is the right to demand the cause and nature of his accusation. If a person does not choose to demand it, he is under no obligation to do so. It is a right he may waive if he chooses, and which he will be held to have waived unless he asserts it. Pine v. Commonwealth, 121 Va. 812 , 93 S.E. 652 (1917); Forester v. Commonwealth, 210 Va. 764 , 173 S.E.2d 851 (1970); Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001).

There is no constitutional requirement in Virginia that felony prosecutions be by indictment; the indictment requirement is only statutory and may be waived. Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001).

When an indictment charges murder, the accused is informed of the cause and nature of his accusation within the provisions of this section, although he is not informed of the particulars of the offense in this section. If other information is desired by the accused, he has a right to require the Commonwealth to file a bill of particulars. Hurd v. Commonwealth, 159 Va. 880 , 165 S.E. 536 (1932).

Use of short form indictment. - Use of short form indictment for first degree murder adequately informed defendant of the nature and cause of the offense in accordance with the requirements of Va. Const., Art. I, § 8, and U.S. Const., Amend. VI. The record showed that, at his arraignment, defendant indicated that he understood the nature of the charges against him. Walshaw v. Commonwealth, 44 Va. App. 103, 603 S.E.2d 633, 2004 Va. App. LEXIS 483 (2004).

Amendment to indictment proper. - Indictments were properly amended to change the dates of the incidents under § 19.2-231 as the amendment did not change the nature or character of the offense charged; assuming that the amendments to an indictment were a surprise to defendant for purposes of Va. Const., Art. I, § 8, defendant was entitled to a continuance, which defendant refused. Haley v. Commonwealth, No. 0877-06-2, 2007 Va. App. LEXIS 402 (Ct. of Appeals Nov. 6, 2007).

Prior to former § 19-150 (see now § 19.2-231), there was no way to amend an indictment after return by the grand jury to remedy defects so as to comply with this section in acquainting the accused with the cause and nature of his accusation. Woods v. Commonwealth, 140 Va. 491 , 124 S.E. 458 (1924).

Former § 19.1-176 (see now § 19.2-231) authorized, before the general issue was pleaded, any amendment which did not change the nature of the offense charged. Thus the accused was given timely and ample opportunity to avail himself of his constitutional right to be informed of the nature and cause of the accusation against him. That satisfied such constitutional requirement. Forester v. Commonwealth, 210 Va. 764 , 173 S.E.2d 851 (1970).

Failure to raise quest of validity of indictment before verdict. - Where no question of the validity of the indictment was raised before verdict, the defendant, while imperfectly charged, was sufficiently charged by the indictment with the offense and has waived his right to be more fully advised of "the cause and nature of his accusation." Forester v. Commonwealth, 210 Va. 764 , 173 S.E.2d 851 (1970); Grier v. Commonwealth, 35 Va. App. 560, 546 S.E.2d 743, 2001 Va. App. LEXIS 297 (2001).

Uncharged crimes. - Accused cannot be convicted of a crime that has not been charged, unless the crime is a lesser-included offense of the crime charged under U.S. Const., Amend. XIV and Va. Const., Art. I, § 8; the crime of being an accessory after the fact is not a lesser-included offense of the crime of murder. Paxton v. Commonwealth, No. 3063-01-2, 2002 Va. App. LEXIS 785 (Ct. of Appeals Dec. 31, 2002).

Bill of particulars not required. - In a capital murder case, defendant failed to establish that the trial court erred by denying his request for a bill of particulars and by convicting him of capital murder based upon the theory that he drowned or suffocated the child victim because the record showed that defendant had notice of the existence of an alternate theory of the case that the victim died from suffocation rather than drowning in time to satisfy any due process right to notice of the precise manner in which he was alleged to have caused the victim's death; and he established no constitutional entitlement to notice of the precise manner in which the Commonwealth alleged that he caused the victim's death. Rams v. Commonwealth, 70 Va. App. 12, 823 S.E.2d 510, 2019 Va. App. LEXIS 45 (2019).

V. CONFRONTATION WITH ACCUSERS AND WITNESSES.

Fundamental liberties implicated when defendant physically restrained by shackles or gag. - A defendant is constitutionally entitled under both the United States and Virginia constitutions to confront the witnesses against him, to have a fair and impartial trial, and to receive due process of law; each of these fundamental liberties is implicated when a defendant is required to stand trial while physically restrained by shackles or by a gag. Martin v. Commonwealth, 11 Va. App. 397, 399 S.E.2d 623 (1990).

Abuse of discretion to require defendant to stand trial shackled and gagged. - Where defense counsel and defendant protested the shackling and gagging before the jury and defendant's inability to utilize his case materials and consult with his attorney in his defense, where no reasons were stated why he needed to remain in the courtroom and stand trial under these circumstances, and where although defendant was obnoxiously obstreperous, there was no evidence in the record that he was a security risk when the trial judge ordered him shackled, and the trial court did not make any finding to that effect; under these circumstances, it was an abuse of discretion to require defendant to stand trial shackled and gagged. Martin v. Commonwealth, 11 Va. App. 397, 399 S.E.2d 623 (1990).

Right to cross-examine adversary's witnesses. - This section guarantees to the defendant in criminal cases the right to cross-examination of the adversary's witnesses. Moore v. Commonwealth, 202 Va. 667 , 119 S.E.2d 324 (1961).

In criminal cases, the right of cross-examination of prosecution witnesses is preserved to the accused by the constitutional guarantee of confrontation. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980).

But right is subject to witness's privilege against self-incrimination. Although a witness who testifies to incriminating facts waives the privilege as to the details of the events he relates, he does not waive the privilege as to collateral criminal activity. Woody v. Commonwealth, 214 Va. 296 , 199 S.E.2d 529 (1973).

Where the attempted cross-examination of witnesses would have required them to admit involvement in crimes other than the one to which they testified on direct examination, they were entitled to invoke their privilege under the Fifth Amendment to the United States Constitution and this section to protect themselves against further self-incrimination. Woody v. Commonwealth, 214 Va. 296 , 199 S.E.2d 529 (1973).

Failure to timely disclose exculpatory evidence. - Defendant's due process rights were violated when the Commonwealth failed to timely disclose that a convicted felon and thief, who worked at defendant's place of employment, had been caught trying to steal from the cash drawer because the evidence was material and the prosecutor's disclosure at trial did not cure the violation, as it was made only after defendant had concluded his direct examination and did not allow defense counsel an opportunity to utilize the evidence in his preparation for trial. Stewart v. Commonwealth,, 2007 Va. App. LEXIS 16 (Jan. 16, 2007).

Commonwealth did not deprive defendant of due process by withholding or failing to preserve exculpatory evidence because the Commonwealth's failure to disclose a video tape and cell phones, which disappeared from an investigator's custody, did not constitute a Brady violation. Defendant did not meet his burden of showing that either the police or the Commonwealth acted in bad faith in losing the tape and cell phones, and nothing in the record indicated that the police had knowledge that those pieces of evidence were exculpatory. Gagelonia v. Commonwealth, 52 Va. App. 99, 661 S.E.2d 502, 2008 Va. App. LEXIS 271 (2008).

In an aggravated sexual battery and indecent liberties trial, defendant's Brady violation motion to dismiss was properly denied where evidence that the victim was allegedly the victim of more than one known sexual molester during the same general time frame was not exculpatory as to defendant. Katz v. Commonwealth, No. 1225-08-1, 2010 Va. App. LEXIS 100 (Ct. of Appeals Mar. 16, 2010).

Other crimes committed by prosecution witnesses. - A defendant was entitled to pursue the matter of other crimes committed by prosecution witnesses to reveal to the jury the full weight of any pressure brought to bear on these witnesses as they gave testimony that defendant, subsequently testifying in his own defense, categorically denied. Woody v. Commonwealth, 214 Va. 296 , 199 S.E.2d 529 (1973).

Police testimony that prosecution witnesses had implicated themselves in other crimes. - There is no constitutional inhibition against the admission of proffered testimony of police officers that prosecution witnesses who invoked their privilege against self-incrimination had implicated themselves in other crimes, since the proffered evidence tended to establish a predicate for bias on the part of the prosecution witnesses. Woody v. Commonwealth, 214 Va. 296 , 199 S.E.2d 529 (1973).

Use of juvenile convictions for impeachment. - A criminal defendant's constitutional right of confrontation is paramount to the state's policy of protecting juvenile offenders so that the right effectively to cross-examine a witness to show bias, which is a specific attack on credibility, outweighs any embarrassment to the witness resulting from a disclosure of his juvenile court record; however, a court may refuse the use of juvenile convictions in a general attack on a witness's credibility. Williams v. Commonwealth, No. 0170-03-1, 2003 Va. App. LEXIS 695 (Ct. of Appeals Dec. 30, 2003).

Documentary evidence not excluded. - The constitutional right of a defendant in a criminal prosecution to be confronted with his accusers and witnesses does not exclude proper documentary evidence. Cochran v. Commonwealth, 122 Va. 801 , 94 S.E. 329 (1917); Runde v. Commonwealth, 108 Va. 873 , 61 S.E. 792 (1908).

Hearsay evidence. - This section cannot be said to have incorporated the rule against hearsay evidence, as understood at the time of its adoption. This section was intended to prevent the trial of criminal cases upon affidavits, not to serve as a rigid and inflexible barrier against the orderly development of reasonable and necessary exceptions to the hearsay rule. Kay v. United States, 255 F.2d 476 (4th Cir.), cert. denied, 358 U.S. 825, 79 S. Ct. 42, 3 L. Ed. 2d 65 (1958).

Certificate of blood alcohol analysis not hearsay. - Trial court, in defendant's driving while intoxicated case pursuant to § 18.2-266, did not err in admitting into evidence a certificate of blood alcohol analysis based on the result, contained in a certificate of analysis, from a breath test; the breath test result contained in the certificate of analysis was not hearsay evidence, pursuant to § 18.2-268.9, and, therefore the admission into evidence of that result did not implicate defendant's constitutional right to confrontation. Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347, 2005 Va. App. LEXIS 329 (2005)substituted op., on reh'g, 48 Va. App. 58, 628 S.E.2d 74 (2006) (harmless error review, but declining to address the constitutional issue).

Where witness, after his testimony in chief, refuses completely to submit to cross-examination, a defendant's right of confrontation is violated and the witness's direct testimony should be stricken. But where a witness refuses to answer only one or a few questions on cross-examination, the right to confrontation is not necessarily violated. Whether the direct testimony should be stricken as violative of the confrontation clause is within the discretion of the trial court, considering factors such as the motive of the witness, the materiality of the answer, and the effectiveness of the cross-examination. Nichols v. Commonwealth, 6 Va. App. 426, 369 S.E.2d 218 (1988).

Where witness refused to reveal his source of cocaine in Florida, his motive for refusing to answer was purportedly because of threats he had received against his family. The judge could reasonably believe witness's reason in light of the fact that he had answered in detail every other question propounded to him by either the Commonwealth or the defendant and witness' source of cocaine was not relevant to the question of the defendant's guilt, and the defendant was given an opportunity on cross-examination and during closing argument to expose this infirmity "thereby calling to the attention of the fact-finder the reasons for giving scant weight" testimony. Therefore, the trial court did not abuse its discretion in refusing to strike witness's direct testimony. Nichols v. Commonwealth, 6 Va. App. 426, 369 S.E.2d 218 (1988).

Statute authorizing evidence of speed as measured by radar device. - Section 46-215.2 (now § 46.2-882), which authorizes the use of evidence of speed measured by radar device, is a constitutional and valid statute and does not violate this section. Royals v. Commonwealth, 198 Va. 876 , 96 S.E.2d 812 (1957).

A statute making the certificate of the state chemist as to the amount of alcohol contained in a beverage, when signed and sworn to by him, evidence in all prosecutions under the revenue laws of this State was held not to violate this constitutional provision. Bracy v. Commonwealth, 119 Va. 867 , 89 S.E. 144 (1916).

Laboratory reports. - The admission of a laboratory report in evidence under former § 19.1-45 (now § 19.2-188) violated no constitutional right of a defendant. The right to be confronted with one's accusers and witnesses does not operate to exclude proper documentary evidence. Robertson v. Commonwealth, 211 Va. 62 , 175 S.E.2d 260 (1970).

Identification evidence. - Trial court did not err in denying defendant's motion to suppress evidence regarding the photographic identification of defendant, even though the photograph was the only photograph that the police showed the woman who was attacked and the driver of a car who observed the woman's assailant, as the woman who was attacked had 25 minutes in a well-lit parking garage to observe her assailant, she was able to accurately describe her assailant's physical features, the witness had an ample opportunity to observe the assailant, the witness was able to describe the assailant's physical features, and both the woman attacked and the witness had no doubts about their identifications; under the circumstances the identification of defendant as the assailant was not unduly suggestive and did not violate defendant's procedural due process rights. Blevins v. Commonwealth, 40 Va. App. 412, 579 S.E.2d 658, 2003 Va. App. LEXIS 254 (2003).

Admission of evidence of a victim's selection of defendant's picture from a photo lineup did not violate defendant's due process rights as: (1) there was nothing impermissibly suggestive about the photographs themselves or the manner in which they were presented to the victim; (2) the photo array consisted of six head shots of "dark complected men with facial hair," well within the range of the description given by the victim; (3) neither the victim nor the trial court found defendant to be the darkest in skin tone and defendant was not the only "skinny or slender" individual in the photo lineup; (4) none of the photos showed paint-splattered shirts or jeans; and (5) the photo array had little, if any, impermissibly suggestive qualities. Clay v. Commonwealth,, 2006 Va. App. LEXIS 118 (Mar. 28, 2006).

Although a detective's identification procedure was unduly suggestive for Va. Const., Art. I, § 8 purposes, a victim's photographic identification of defendant was not so unreliable that there was a substantial likelihood of misidentification as: (1) the victim had a good opportunity to view the thief; (2) the crime took place in broad daylight, and the thief did not have anything obscuring the thief's face; (3) the victim chased the thief, giving the victim the opportunity to observe the thief's build; (4) the victim was concentrating on the thief's face during the struggle; and (5) the victim was 100 percent certain that defendant was the thief. Gantt v. Commonwealth, No. 2966-07-1, 2008 Va. App. LEXIS 430 (Ct. of Appeals Sept. 23, 2008).

Defendant's convictions for carjacking, robbery, abduction, and use of a firearm in the commission of those felonies were proper because, assuming without deciding that the Commonwealth violated a discovery order, defendant was not prejudiced either by the denial of the continuance or in the trial court's limited consideration of a detective's testimony concerning a photo spread identification. Thompson v. Commonwealth, No. 2427-09-2, 2010 Va. App. LEXIS 415 (Ct. of Appeals Oct. 26, 2010).

Defendant's due process rights were not violated and the trial court did not err by denying defendant's motion to suppress the victim's identification of defendant from a photo array because a police officer's statement that the suspect was in the array did not make it impermissibly suggestive, and defendant's elongated photo did not create a very substantial likelihood of irreparable misidentification. Smith v. Commonwealth, 61 Va. App. 112, 733 S.E.2d 683, 2012 Va. App. LEXIS 348 (2012).

Chain-of-custody witnesses not required to be called. - Virginia's statutory scheme provides a mechanism for governmental and judicial economy by obviating the need for the prosecution to call the preparer and chain-of-custody witness. The statutes provide a defendant with adequate notice that the prosecution intends to rely on the certificate and affords a defendant the absolute right to call the preparer or chain-of-custody witness as an adverse witness should he so desire. Wingfield v. Commonwealth, No. 3000-95-2 (Ct. of Appeals Apr. 1, 1997).

There was no abuse of the circuit court's discretion in admitting the certificate of analysis in evidence because neither the sheriff's captain nor the postal workers were "vital links" in the chain of custody; no contention was made at trial that the captain ever had any contact with the evidence and he was not shown to be a link in the chain. Branham v. Commonwealth, 283 Va. 273 , 720 S.E.2d 74, 2012 Va. LEXIS 18 (2012).

Provision does not apply on rule for alimony. - On a rule to show cause in an effort to enforce the payment of alimony, the rule is but ancillary to and in support of the suit for divorce and its decree, and therefore the provision of this section which in criminal prosecution gives to the accused the right to be confronted by witnesses, does not apply. Lindsey v. Lindsey, 158 Va. 647 , 164 S.E. 551 (1932).

Not reversible error where defendant never proffered what likely response would have been. - Trial court did not commit prejudicial error by disallowing two questions that defendant wanted to ask the first victim during cross-examination because counsel never proffered what first victim's likely response to first question would have been, and the record did not reflect that any proffer as to the second question was refused. Tynes v. Commonwealth, 49 Va. App. 17, 635 S.E.2d 688, 2006 Va. App. LEXIS 470 (2006).

Former testimony of a witness at a preliminary hearing was admissible as an exception to the hearsay rule, and defendant's right of confrontation under the Constitution of the United States and the Virginia Constitution was not violated where, although there was no transcript of the witness' testimony at the preliminary hearing, the record showed that the defendant was present at the hearing, that he was represented by court-appointed counsel, and that the witness was cross-examined by defendant's counsel on the crucial issues of breaking and entering and the identity of defendant as perpetrator of the crime. Shifflett v. Commonwealth, 218 Va. 25 , 235 S.E.2d 316 (1977).

Testimony given by a witness during a preliminary hearing on a murder charge was properly received as substantive evidence for the prosecution in the subsequent trial for both the murder and a robbery arising out of the same occurrence where the witness was deceased at the time of trial, since defendant's cross-examination at the hearing unavoidably dealt not only with the two issues common to both charges, identification of the defendant and credibility of the witness, but also with the details of the robbery. Fisher v. Commonwealth, 217 Va. 808 , 232 S.E.2d 798 (1977).

The constitutional right of confrontation does not attach where the prior testimony of a witness unavailable at trial bears sufficient indicia of reliability. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980).

Where prior testimony was not taken in a judicial proceeding, the interrogation was not adversary, the witness was not under oath, her statements positively incriminated the accused, the defendant was not present to conduct or assist his counsel in conducting cross-examination, and nothing of record indicates that the witness was unavailable to testify in person at trial; none of the indicia of reliability is present and the defendant had the right to invoke the constitutional guarantee of confrontation against the introduction of the transcript of the witness's interrogation. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980).

Prior testimony of witness was admissible. - Admission of the victim's transcribed testimony from a prior hearing was not error where the Commonwealth exercised that amount of prudence as was properly to be expected and defendant's lack of presence at the hearing was due to defendant's own choosing. Harris v. Commonwealth, 52 Va. App. 735, 667 S.E.2d 809, 2008 Va. App. LEXIS 479 (2008).

Waiver. - Counsel in a criminal case may waive his client's constitutional right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy. Bilokur v. Commonwealth, 221 Va. 467 , 270 S.E.2d 747 (1980).

On appeal, the defendant contended that the trial court's refusal to admit tax records of the witness violated her right to confront and cross-examine her accuser in derogation of the Sixth Amendment to the United States Constitution and Article I, § 8 of the Virginia Constitution. Because the defendant did not raise these issues at trial she was barred from asserting them for the first time on appeal. Evans v. Commonwealth, No. 0771-96-4 (Ct. of Appeals Feb. 4, 1997).

No violation of confrontation right found. - Trial court did not violate defendant's right of confrontation under the Sixth Amendment and the Va. Const., Art. I, § 8, by refusing to allow defendant to question a Commonwealth witness as to her arrest for possession of cocaine with intent to distribute. Booker v. Commonwealth, No. 2511-00-2, 2004 Va. App. LEXIS 137 (Ct. of Appeals Mar. 30, 2004).

Trial court erred in granting defendant's motion to suppress a report prepared by a Sexual Assault Nurse Examiner (SANE) on the ground that it violated his Sixth Amendment right to confront witnesses; Crawford factors that would compel suppression of the evidence were not present because the SANE report contained no accusations whatsoever, the report was the result of a physical examination of the sexual assault victim, and the report was not derived from information gathered in an adversarial setting. Commonwealth v. Brown,, 2006 Va. App. LEXIS 152 (Apr. 20, 2006).

Victim's two-way closed-circuit testimony did not violate defendant's federal or state confrontational rights in a sexual abuse case where federal case law authorized even greater limitations in the context of child witness testimony in cases involving sex crimes. Roadcap v. Commonwealth, 50 Va. App. 732, 653 S.E.2d 620, 2007 Va. App. LEXIS 445 (2007).

Defendant was properly convicted of driving while intoxicated because the trial court did not violate defendant's constitutional right to confrontation when it admitted his blood alcohol breath analysis into evidence in accordance with the terms of § 19.2-187; because defendant did not subpoena the booking tech who administered the blood alcohol breath analysis, he waived his opportunity to cross-examine potential witnesses. Ki-Ho Min v. Commonwealth,, 2008 Va. App. LEXIS 144 (Mar. 25, 2008).

Because the jury heard that defendant's estranged husband engaged in conduct resulting in protective orders, and was resentful of having been thus removed from his home, inquiry into an accusation of rape would not demonstrate his incentive or predisposition to falsify his testimony; therefore, defendant's cross-examination was properly limited. Sears v. Commonwealth, No. 2851-07-1, 2009 Va. App. LEXIS 196 (Apr. 28, 2009).

Although the trial court erred in denying defendant's motion to suppress a victim's affidavit, which was submitted to the trial court in conjunction with her application for a preliminary protective order because it incorrectly applied the forfeiture by wrongdoing doctrine, the statements contained in the affidavit were not testimonial, and thus, did not implicate the Confrontation Clause and the trial court's ultimate admission of the affidavit was not error. Crawford v. Commonwealth, 55 Va. App. 457, 686 S.E.2d 557, 2009 Va. App. LEXIS 591 (2009), aff'd, 281 Va. 84 , 704 S.E.2d 107, 2011 Va. LEXIS 20 (Va. 2011).

VI. RIGHT OF ACCUSED TO CALL FOR EVIDENCE.

Right of an accused to call for evidence in his favor includes the right to prepare for trial which, in turn, includes the right to interview material witnesses and to ascertain the truth. Bobo v. Commonwealth, 187 Va. 774 , 48 S.E.2d 213 (1948); Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

This section protects "the right to prepare for trial which, in turn, includes the right to interview material witnesses and to ascertain the truth," and is reinforced by the Virginia Code of Professional Responsibility (see now the Virginia Rules of Professional Conduct). "The prosecutor in a criminal case shall not discourage a person from giving relevant information to the defendants." DR 8-102 (A) (3) (see now Part 6, § II, Rule 3.8 (d) of the Virginia Rules of the Supreme Court). As qualified by writ of prohibition, the trial judge's order that the Commonwealth refrain from any interference with attempts by defense counsel to interview witnesses is fully consistent with those principles. Epperly v. Booker, 235 Va. 35 , 366 S.E.2d 62 (1988).

And this fundamental right cannot be accorded the accused if he is hampered in his interview of his material witnesses by a prohibitory order of the court which refuses to grant him a private interview. The constitutional provision is not satisfied by a public interview. Bobo v. Commonwealth, 187 Va. 774 , 48 S.E.2d 213 (1948).

The accused should be accorded the right to interview material witnesses who are in jail, in the absence of the prosecuting attorney. Bobo v. Commonwealth, 187 Va. 774 , 48 S.E.2d 213 (1948).

But policy of fundamental fairness in protecting the ability of the Commonwealth to prosecute is applicable to prevent what could be a fishing expedition into the Commonwealth's files at trial. Bellfield v. Commonwealth, 215 Va. 303 , 208 S.E.2d 771 (1974), cert. denied, 420 U.S. 965, 95 S. Ct. 1359, 43 L. Ed. 2d 444 (1975).

Need to investigate cannot be merely speculative. - A defendant's right to call for evidence in his favor guarantees him sufficient time to investigate and evaluate the evidence in preparation for trial. However, the need to investigate and evaluate the evidence and the prejudice allegedly resulting from the denial of a continuance cannot be based upon mere speculation. Cardwell v. Commonwealth, 248 Va. 501 , 450 S.E.2d 146 (1994), cert. denied, 514 U.S. 1097, 115 S. Ct. 1826, 131 L. Ed. 2d 747 (1995).

Denying defendant access to material records violated right to call for evidence. - Where the Commonwealth virtually conceded some of the bank records were "necessary and material to prove the Commonwealth's case," where the defendant produced witnesses, albeit at trial, who testified regarding the materiality of the records, and moreover, the Commonwealth's witnesses relied in part upon some of these very records, the records were material, and denying the defendant access thereto violated her constitutional right to call for evidence in her favor. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Written statements made by prosecution witness. - Defendant has no right to discover and examine written statements made by a prosecution witness to agents of the State for purposes of cross-examination and impeachment, after that witness has testified for the prosecution. Bellfield v. Commonwealth, 215 Va. 303 , 208 S.E.2d 771 (1974), cert. denied, 420 U.S. 965, 95 S. Ct. 1359, 43 L. Ed. 2d 444 (1975).

Where witness expected to testify, impeachment evidence must be disclosed. - Where a witness is expected to testify, impeachment evidence known to the Commonwealth must be disclosed. A defendant's constitutional due process right to a fair trial includes the right to call for evidence in his favor. Due process seeks to prevent a miscarriage of justice by ensuring to the defendant a fair and impartial trial, thereby assuring "the justice of the finding of guilt." A prosecutor may not avoid this discovery requirement by strategically mischaracterizing a witness held in abeyance as a "potential" witness. Moreno v. Commonwealth, 10 Va. App. 408, 392 S.E.2d 836 (1990).

Because a witness's criminal history was provided to defendant during trial and its contents were disclosed during cross-examination, defendant failed to establish actual prejudice or a Brady violation; consequently, the trial court did not err in denying defendant's motion to strike the witness's testimony. Harvey v. Commonwealth,, 2005 Va. App. LEXIS 403 (Oct. 11, 2005).

Presumption that testimony would be cumulative and corroborative impaired right to call for evidence. - Where the trial court presumed that a witness' testimony would be both cumulative and corroborative, this ruling impaired defendant's basic right to call for evidence which favored his cause. Proctor v. Town of Colonial Beach, 18 Va. App. 28, 441 S.E.2d 233 (1994).

Defendant may obtain exculpatory evidence known to the Commonwealth. Bellfield v. Commonwealth, 215 Va. 303 , 208 S.E.2d 771 (1974), cert. denied, 420 U.S. 965, 95 S. Ct. 1359, 43 L. Ed. 2d 444 (1975).

Due process requires disclosure when the evidence requested is such as would tend to exculpate the accused or reduce the penalty. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

In a case where there had been a Brady violation and defendant was convicted of robbery in violation of § 18.2-58, the trial court did not abuse its discretion when it refused to conduct an in camera review of the Commonwealth's file because the record did not contain any information to establish that exculpatory evidence was withheld from defendant, and defendant provided no reason for the trial court to conduct an in camera review, beyond defendant's speculative belief that there must have been more information in the file. Mitchell v. Commonwealth, No. 2606-07-4, 2009 Va. App. LEXIS 182 (Apr. 21, 2009).

Trial court erred by ruling that the evidence discovered by the defense during the jury trial, an audiotape, was not exculpatory in nature and therefore need not have been disclosed by the Commonwealth, as the statements on the recording contradicted, to varying degrees, the child's testimony, the only evidence supporting the charges, and thus, had impeachment value. Tuma v. Commonwealth, No. 0919-10-2, 2011 Va. App. LEXIS 337 (Nov. 8, 2011), reversed by, Commonwealth v. Tuma, 285 Va. 629 , 740 S.E.2d 14, 2013 Va. LEXIS 55 (2013).

Delay in advising defendant about exculpatory information did not prejudice defendant. - Trial court did not abuse its discretion in denying defendant a mistrial or continuance, although in the midst of the trial, the prosecutor for the first time advised defense counsel of the existence of certain exculpatory evidence; the delay in advising defendant of the information did not prejudice him since the outcome of the trial would not have been affected by an earlier disclosure of the exculpatory information. Robinson v. Commonwealth, 231 Va. 142 , 341 S.E.2d 159 (1986).

Defendant's due process rights and the discovery rules were not violated by the Commonwealth's failure to disclose its witness's criminal record and her relationship with police departments as: (1) the failure to disclose the misdemeanors was not material as they did not involve crimes of moral turpitude and could not be used to impeach the witness; (2) the felony convictions were in evidence at the trial; and (3) given that the witness admitted the felony convictions, her former drug use, and that she was a paid informant, there was no reasonable probability that disclosure of additional impeaching information would have led the trial court to a different conclusion. Johnson v. Commonwealth, 41 Va. App. 37, 581 S.E.2d 880, 2003 Va. App. LEXIS 399 (2003).

Relevant facts must be available. - In the adversary system of criminal justice, all relevant facts must be available to both the prosecution and the defense in order to preserve the system's integrity. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Availability of compulsory process. - The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Under this section, a prisoner may not be forced into trial in the absence of material witnesses, by issuing a summons for the witnesses, and assuring the prisoner that if they arrive before verdict they can testify and, if not, their testimony may be made the basis of a motion for a new trial. Cremeans v. Commonwealth, 104 Va. 860 , 52 S.E. 362 (1905).

Standard for determining materiality. - When a defendant seeks disclosure of evidence, the standard to be applied in determining its materiality is whether a substantial basis for claiming materiality exists. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Parole ineligibility. - The trial court's refusal to allow defendant to inform the jury of his parole ineligibility did not violate his federal Eighth Amendment rights nor his right under this provision "to call for evidence in his favor;" these arguments were procedurally barred, because defendant did not raise them on direct appeal. Mueller v. Murray, 252 Va. 356 , 478 S.E.2d 542 (1996).

Right to call for evidence in revocation hearing. - Refusal to entertain defendant's motion to reduce his sentence did not violate his state constitutional rights as he had ample opportunity to call for evidence in his favor, both at his underlying trial and in the revocation hearing; his federal procedural due process rights as he was provided with notice prior to his revocation hearing, and he received a hearing before a judge where he was represented by counsel, and where he had the opportunity to call for evidence in his favor; or his Eighth Amendment rights as its procedural component had not been extended to a situation where a hearing provided by state law to reconsider an otherwise final sentence was foreclosed because a precondition for the hearing was no longer satisfied. Akers v. Commonwealth, 298 Va. 448 , 839 S.E.2d 902, 2020 Va. LEXIS 31 (2020).

Documentary evidence. - The right "to call for evidence in his favor" applies with equal force to the procurement of documentary evidence. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Trial court did not err in denying defendant's motion for a new trial as the Commonwealth was not required to provide defendant with the investigative notes of either of two detectives since the notes would not have provided defendant with exculpatory evidence, would not have allowed defendant to impeach any of the witnesses to the shooting at issue, and would not have changed the outcome of defendant's trial. Taylor v. Commonwealth, 41 Va. App. 429, 585 S.E.2d 839, 2003 Va. App. LEXIS 462 (2003).

Material in hands of third parties. - Where materials in the hands of third parties could be used at the trial, they are the proper subject of a subpoena duces tecum. Cox v. Commonwealth, 227 Va. 324 , 315 S.E.2d 228 (1984).

Viewing, photographing, taking measurements of crime scene. - The due process rights of Va. Const., Art. 1, § 8, give a criminal defendant a right to view, photograph, and take measurements of the crime scene, provided that the defendant makes a showing that a substantial basis exists for claiming that the proposed inspection and observation will enable the defendant to obtain evidence relevant and material to his defense or to be able to meaningfully defend himself. Henshaw v. Commonwealth, 19 Va. App. 338, 451 S.E.2d 415 (1994).

Sufficient time must be allowed for evaluation of evidence. - An accused has a constitutional right to call for evidence in his favor, which includes the right to prepare for trial by procuring both testimonial and documentary evidence. In order to prepare for trial, an accused and his counsel must have sufficient time to investigate the case and to evaluate the evidence that is procured. Gilchrist v. Commonwealth, 227 Va. 540 , 317 S.E.2d 784 (1984).

A court must not exercise its discretion in a manner which would deny an accused a fair and impartial trial or deprive him of his constitutional right to call for evidence in his favor. This right guarantees an accused sufficient time to investigate and evaluate the evidence in preparation for trial. Lomax v. Commonwealth, 228 Va. 168 , 319 S.E.2d 763 (1984).

Continuance for purpose of obtaining evidence in accused's favor. - Although granting or denying a continuance is within the discretion of the trial court, it must exercise its discretion with due regard to the provisions of the Bill of Rights, which secures to one accused of crime a fair and impartial trial; and to that end safeguard his right to call for evidence in his favor. Gilchrist v. Commonwealth, 227 Va. 540 , 317 S.E.2d 784 (1984).

The trial judge may not exercise discretion whether to grant a continuance in a manner which would deny an accused a fair and impartial trial or deprive him of his constitutional right to call for evidence in his favor. Copeland v. Commonwealth, 13 Va. App. 450, 412 S.E.2d 468 (1991).

Where no meaningful discovery was possible within time constraints, defendant's rights were abridged. - While the Commonwealth may have made a good faith effort to comply with the discovery order, no meaningful discovery was possible within the time constraints imposed; both the spirit and the letter of Rule 3A:14 were violated; under the circumstances, the defendant was denied the right to call for evidence in his favor including the right to prepare for trial and to ascertain the truth. These rights lie at the heart of a fair trial, and when they are abridged, an accused is denied due process. Gilchrist v. Commonwealth, 227 Va. 540 , 317 S.E.2d 784 (1984).

Evidence tending to prove another person committed crime. - Only where there is a trend of facts and circumstances tending clearly to point out some other person as the guilty party, the defendant may introduce any legal evidence which is available tending to prove that another person committed the crime with which he is charged. Oliva v. Commonwealth, 19 Va. App. 523, 452 S.E.2d 877 (1995).

The admissibility of circumstantial evidence tending to prove that a third party committed the crime is left to the sound discretion of the trial judge. Oliva v. Commonwealth, 19 Va. App. 523, 452 S.E.2d 877 (1995).

If the evidence defendant presented and proffered clearly or directly pointed to another person as the guilty party, the trial judge was required to admit that evidence which was relevant and material, provided that it was otherwise admissible. Thereafter, other circumstantial evidence tending to prove the guilt of a third party was to be liberally received. Oliva v. Commonwealth, 19 Va. App. 523, 452 S.E.2d 877 (1995).

Since the evidence that defendant committed the crimes was overwhelming and any error by the trial court in refusing to admit the proffered evidence of third party guilt had no substantial influence on the verdict, the exclusion of that evidence did not entitle defendant to relief. Ramsey v. Commonwealth, 63 Va. App. 341, 757 S.E.2d 576, 2014 Va. App. LEXIS 171 (2014).

"Corroborative evidence." - Corroborative evidence is evidence that does not emanate from the defendant's mouth, does not rest wholly upon the defendant's credibility, but is evidence that adds to, strengthens, and confirms defendant's testimony. Massey v. Commonwealth, 230 Va. 436 , 337 S.E.2d 754 (1985).

Corroborative testimony and cumulative testimony are not same thing. Cumulative testimony is repetitive testimony that restates what has been said already and adds nothing to it. It is testimony of the same kind and character as that already given. Massey v. Commonwealth, 230 Va. 436 , 337 S.E.2d 754 (1985).

Where evidence is merely cumulative its introduction may be limited by the court. Yet, because of the constitutional right to call for evidence in one's favor, even cumulative evidence should sometimes be admitted. Where testimony is material even though cumulative to some extent it should nonetheless be considered. Massey v. Commonwealth, 230 Va. 436 , 337 S.E.2d 754 (1985).

Evidence not required upon plea of guilty. In accepting a plea of guilty, any trial judge is free to hear the evidence he deems necessary to an understanding of the case and to the fixing of an appropriate sentence. This does not mean that evidence must be heard upon a plea of guilty. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Not only is proof unnecessary to fix the degree of the crime upon a plea of guilty in a murder case, but the introduction of evidence to sustain a conviction upon a guilty plea is equally unnecessary in any criminal case. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Corroboration of defense of consent in rape trial. - In a prosecution for rape and sodomy, where the defense was that prosecutrix consented to the sexual acts, it was error for the court not to permit corroborative testimony suggesting that prosecutrix's conduct was sexually solicitous, not merely affectionate. Massey v. Commonwealth, 230 Va. 436 , 337 S.E.2d 754 (1985).

Information requested held not material in abortion case. - In a prosecution for violation of abortion statutes where the defendant complained that the Commonwealth withheld an extra-judicial statement the patient made to the police and the names of two important witnesses, one, the patient's boyfriend, and the other, the physician who examined her at a military hospital a few days after the fetus was expelled, the information requested was not constitutionally material to guilt or punishment since the evidence of record was sufficient to prove that the saline solution administered by the defendant caused the destruction of the fetus. Simopoulos v. Commonwealth, 221 Va. 1059 , 277 S.E.2d 194 (1981), aff'd, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

Judge erred in prohibiting defendant from calling witnesses to rebut testimony. - Where trial judge ruled that because Commonwealth was not required to disclose the location of surveillance post during discovery, defendant could not offer her own independent evidence at trial in an attempt to prove the location of the post and the obstructions, the trial judge erred in prohibiting defendant from calling witnesses to rebut the officer's testimony regarding his ability to view the place where the officer alleged defendant made the cocaine distribution. Davis v. Commonwealth, 25 Va. App. 588, 491 S.E.2d 288 (1997).

Any error was harmless. - Any constitutional error in the exclusion of the time stamp on a photograph was harmless, as the court was unable to say how similar the sneakers on the photograph were to those taken from the victim and the Commonwealth's evidence was overwhelming, making it so that the error did not contribute to the verdict. Ellis v. Commonwealth,, 2016 Va. App. LEXIS 18 (Jan. 26, 2016).

VII. RIGHT TO SPEEDY TRIAL.

This section is merely Virginia's version of the federal Sixth Amendment. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part and rev'd in part, 471 F.2d 648 (4th Cir. 1973).

Speedy trial statute was enacted to clarify and augment constitutional guarantees of the Sixth Amendment to the United States Constitution and this section. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Provision for speedy trial must be reasonably construed. - The provision of this section guaranteeing to an accused a speedy trial must be given a reasonable construction consistent with other provisions, such as that for an impartial jury, permitting statutes providing for change of venue or a jury from another county, and similar legislative provisions. Howell v. Commonwealth, 187 Va. 34 , 46 S.E.2d 37 (1948); Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

Section 19.2-243 is the statutory embodiment of the constitutional right to a speedy trial. Sheard v. Commonwealth, 12 Va. App. 227, 403 S.E.2d 178 (1991).

Section 19.2-243 is conceptually and functionally related to the constitutional guarantee of a speedy trial. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Former § 19.1-191 (see now § 19.2-243) was designed to implement the constitutional guarantee of a speedy trial under the provisions of this section. Brooks v. Peyton, 210 Va. 318 , 171 S.E.2d 243 (1969).

Former § 19.1-191 (see now § 19.2-243) was merely a codification of what the legislature deemed to be a speedy trial under this section. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part and rev'd in part, 471 F.2d 648 (4th Cir. 1973).

Section 19-165 (see now § 19.2-243), specifying the time within which an indictment for a felony must be tried, is the interpretation by the legislature of what constitutes a "speedy trial." Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945); Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part and rev'd in part, 471 F.2d 648 (4th Cir. 1973).

Duty of court under this section. - See Benton v. Commonwealth, 90 Va. 328 , 18 S.E. 282 (1893); Page v. Commonwealth, 68 Va. (27 Gratt.) 954 (1876).

Duty of prosecuting authority. - The burden rests with the prosecuting authority to ensure that an accused is accorded his or her constitutional and statutory right. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Prosecution's duty to implement guarantee. - It is the prosecution which has the duty of implementing the constitutional guarantee of a speedy trial. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Duty extends to society at large. - The prosecutor's duty to use due diligence in bringing an accused to trial extends not only to the defendant but also to society at large. The public has a substantial stake in speedy conviction of the guilty and prompt vindication of the innocent. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Commonwealth has the duty to explain the delay after defendant raises the issue. Without anything in a court order or elsewhere in the record to show that defendant agreed to or concurred in the delay of his trial, or instigated a proceeding which of necessity brought about a delay of his trial, the delay must be attributed to the Commonwealth. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Guarantee of speedy trial not applicable to appellate proceedings. - The guarantee of a speedy trial relates to prosecutions in trial courts, and not to appellate proceedings. Newsom v. Commonwealth, 207 Va. 844 , 153 S.E.2d 235, cert. denied, 359 U.S. 969, 79 S. Ct. 883, 3 L. Ed. 2d 837 (1959); 388 U.S. 918, 87 S. Ct. 2136, 18 L. Ed. 2d 1361 (1967).

The right to a speedy trial may be waived if the defendant is aware of his right. Delph v. Slayton, 343 F. Supp. 449 (W.D. Va. 1972), aff'd in part and rev'd in part, 471 F.2d 648 (4th Cir. 1973).

But Virginia has renounced the "demand rule," which would result in a waiver of the speedy trial claim unless a specific demand for a trial was made. Holliday v. Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987).

Accused does not waive his right to a speedy trial simply by failing to oppose a motion for a continuance made by the Commonwealth. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Opportunity to prove or document reason for delay does not expire after running of statutory time period. - While most reasons for delay will be documented in records or orders of proceedings prior to the speedy trial hearing, other documentation and the explanation for the delay may become a part of the record for the first time at the speedy trial hearing. The opportunity to prove or document the reason for the delay does not expire with the running of the statutory time period during which the trial must be had. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Factors in determining deprivation of right. - Some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right to a speedy trial are length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

A defendant who fails to demand a speedy trial does not forever waive his right. This does not mean, however, that the defendant has no responsibility to assert his right. The defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

While simple negligence on the part of the Commonwealth may be a "more neutral reason" than deliberate procrastination, administrative derelictions nevertheless should be considered in determining whether a defendant's right to a speedy trial has been denied since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Concerning the constitutional right to a speedy trial, the Supreme Court of the United States has defined a balancing test to be applied by the courts on an ad hoc basis. It identified four factors to be considered: (1) length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right and (4) prejudice to the defendant. The length of the delay is the triggering mechanism. Unless there is delay which is presumptively prejudicial, it is unnecessary to inquire as to the other factors. A process which results in a trial on the merits within the statutorily described time does not support a presumption of prejudice. Sheard v. Commonwealth, 12 Va. App. 227, 403 S.E.2d 178 (1991).

If a delay is not shown to be "presumptively prejudicial," there is no necessity for inquiry into the additional speedy trial factors; a defendant must be able to at least raise the presumption that the delay was so detrimental as to have endangered his right to a fair trial, which the defendant here was unable to do. Riddick v. Commonwealth, 22 Va. App. 136, 468 S.E.2d 135 (1996).

The failure to show actual prejudice to the defense is no longer fatal per se to a speedy trial claim. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Defendant's failure to make an evidentiary showing of actual prejudice to his defense was not fatal to his speedy trial claim. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Right applicable only to time between second indictment and trial. - Defendant's right to a speedy trial under U.S. Const. Amend. VI and Va. Const., Art. I, § 8 was not violated because the trial court granted a motion for nolle prosequi of the first indictment against defendant for good cause, and the time between the second indictment of defendant and defendant's conviction did not violate defendant's right to a speedy trial as he was not prejudiced by the delay. Jones v. Commonwealth,, 2008 Va. App. LEXIS 84 (Feb. 19, 2008).

Burden of proof. - When a defendant challenges the delay of his trial as unreasonable, the burden devolves upon the Commonwealth to show, first, what delay was attributable to the defendant and not to be counted against the Commonwealth and, second, what part of any delay attributable to the prosecution was justifiable. This rule accords with the holding in Flanary v. Commonwealth, 184 Va. 204 , 35 S.E.2d 135 (1945), that the burden is on the Commonwealth to show that the delay proscribed by § 19.2-243 resulted from one of the causes excepted by the statute. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Silence of defendant does not justify deprivation of the protections of § 19.2-243, or the constitutional guarantee of a speedy trial. Walker v. Commonwealth, 225 Va. 5 , 301 S.E.2d 28 (1983).

An accused may remain silent, making no demands, without forfeiting the right to have the charges against him or her timely heard. Bunton v. Commonwealth, 6 Va. App. 557, 370 S.E.2d 470 (1988).

Right to a speedy trial was denied. the defendant when almost 22 months elapsed between arrest and preliminary hearing. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

Delay of 279 days was sufficient to require further inquiry of other factors in order to determine if constitutional rights had been abridged. Moten v. Commonwealth, 7 Va. App. 438, 374 S.E.2d 704 (1988).

No violation of constitutional right where delay attributable to defendant. - Where primary and overriding cause of delay was attitude and lack of cooperation of defendant with doctor, and where nothing in record indicated any effort by Commonwealth to delay prosecution, delay was attributable to defendant and weighed against his claim that his constitutional rights had been violated. Moten v. Commonwealth, 7 Va. App. 438, 374 S.E.2d 704 (1988).

Right to speedy trial not denied. - Where the length of the delay, while perhaps unnecessary and a factor to be weighed against the Commonwealth, was not extraordinary, there was no showing that the delay was the result of intentional misconduct by the Commonwealth, the prejudice to defendant was minimal, defendant was represented by counsel, no question was raised as to the competency of counsel, and the record showed no action taken between the date counsel was appointed and when the trial commenced that could be construed as the assertion of a speedy trial right, defendant was not denied his constitutional right to a speedy trial. Holliday v. Commonwealth, 3 Va. App. 612, 352 S.E.2d 362 (1987); Rogers v. Commonwealth, 5 Va. App. 337, 362 S.E.2d 752 (1987).

Five and one-half year delay between the issuance of an arrest warrant and the date of defendant's trial did not violate his right to a speedy trial, where the Commonwealth's negligence in utilizing the procedures of the Interstate Agreement on Detainers was balanced by defendant's actions in resisting extradition from Maryland. Beachem v. Commonwealth, 10 Va. App. 124, 390 S.E.2d 517 (1990).

Defendant's constitutional right to a speedy trial was not denied, as the delay between the initial trial and final retrial was not of sufficient time to impair his constitutional right to a speedy trial, and even though he asserted his right to a speedy trial, he failed to demonstrate prejudice resulting from the delay. Thomas v. Commonwealth, No. 0155-03-1, 2004 Va. App. LEXIS 271 (Ct. of Appeals June 8, 2004).

Tolling provisions of § 19.2-243, the speedy trial statute, applied to a trial court order entered sua sponte continuing defendant's trial date where defendant did not object to the continuance. Accordingly, there was no basis to apply the ends of justice exception to allow consideration of defendant's claim of a violation of defendant's constitutional speedy trial rights claim under the federal constitution and Va. Const., Art. I, § 8. Howard v. Commonwealth, 281 Va. 455 , 706 S.E.2d 885, 2011 Va. LEXIS 47 (2011).

Delay from the time the capias was issued until the time of defendant's revocation hearing did not violate his right to a speedy trial guaranteed by both the Sixth Amendment of the United States Constitution and Article I, § 8 of the Virginia Constitution. The rights under both Constitutions are applicable by their terms only in criminal prosecutions, and probation revocation, like parole revocation, is not a stage of a criminal prosecution. Atkins v. Commonwealth, 2 Va. App. 329, 343 S.E.2d 385 (1986).

Remedy where right denied. - Dismissal of the indictment was the only remedy where the defendant was denied his right to a speedy trial. Fowlkes v. Commonwealth, 218 Va. 763 , 240 S.E.2d 662 (1978).

VIII. RIGHT TO PUBLIC TRIAL.

"Public trial" is a trial which is not limited or restricted to any particular class of the community, but is open to the free observation of all. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979); Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Criminal trial should be a "public trial" in the ordinary common sense acceptation of the term. Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Public freedom of access is one measure of public trial. - One measure of whether an accused has been deprived of his constitutional right to a public trial when the trial is held at a place other than an "open courtroom" is whether the public had freedom of access. Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Persons excludable from public trial not particularized. - The Supreme Court has not particularized those classes of persons who may properly be excluded without impairing the nature of a public trial either from a constitutional standpoint or under § 19.2-266. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

Pretrial suppression hearings should be open absent overriding interest. - Absent an overriding interest articulated in findings, pretrial suppression hearings should be open to the public. This holding is mandated by Va. Const., Art. I, § 12. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Overriding public interest for closure of trial. - Before the constitutional right of a defendant to a public trial can be jeopardized, the record must contain findings of fact showing some clear and present overriding public interest or justification. The party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure. Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Closure of hearing justified when fair trial jeopardized. - An "overriding interest" exists to justify closure of a pretrial suppression hearing when a fair trial for the defendant is likely to be jeopardized by an open pretrial hearing. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Alternatives must be considered before closure employed. - Before closing a pretrial suppression hearing to the public, the trial court should consider whether there are alternatives available which would eliminate the likelihood of prejudice to the accused. While there are fewer alternatives available at pretrial than at trial, they should be explored before closure is employed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Only part of hearing should be closed where possible. - When it is not possible to hold the entire pretrial suppression hearing in public, only that portion that would be prejudicial should be closed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Transfer of trial from courthouse to another location. - In order to justify a transfer of a trial from the courthouse to another location, the trial court must adopt and implement adequate measures that will not unduly infringe upon the public trial guarantee and will assure freedom of access to the trial. Provision should be made for reasonable notice to the parties and general population who have a right to expect the trial to be held at the courthouse in accordance with the statute. Furthermore, administrative convenience is insufficient, standing alone, to justify a transfer of a criminal trial from the courthouse. These standards govern the decision to transfer a criminal trial from a courthouse courtroom to a prison courtroom. Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Right of public to be heard on closure issue. - Before a pretrial suppression hearing is closed, interested members of the public should have the right to be heard, with the assistance of counsel if desired. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Notice to public of closure motion. - For intervention to take place, the public must have notice of the closure motion. For this reason, motions to close a pretrial suppression hearing should be made in writing and filed with the court before the day of the hearing involved, and the public must be given reasonable notice that a closure hearing will be conducted. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Receipt of information in camera at closure hearing. - There is the danger that the information sought to be kept from the public will be disclosed in the hearing on closure, thereby negating the purpose of closure. To protect against this, the trial court may hear or observe this information in camera in order to establish to what extent its release would be prejudicial to the defendant. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Burden at closure hearing. - At the hearing on closure of a pretrial suppression hearing, the burden will be on the moving party to show that an open hearing would jeopardize the defendant's right to a fair trial. The intervenors, however, shall have the burden of showing that reasonable alternatives to closure are available. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Burden of proof as to denial of public trial where held inside prison. - The burden was upon defendants to prove by a preponderance of the evidence that they were denied a public trial. However, upon a showing that the trial was held within the perimeter walls of a medium security prison, the defendants proved a prima facie case of denial of a public trial. Although the burden of persuasion remains upon defendant throughout the trial, once the prima facie case is made, the burden of going forward with the evidence shifts to the Commonwealth and it is incumbent upon it to produce evidence to justify the transfer of the trial from the regular courthouse to another location. Vescuso v. Commonwealth, 5 Va. App. 59, 360 S.E.2d 547 (1987).

Findings required upon entry of closure order. - Upon entering a closure order, the trial judge shall articulate on the record his findings that the evidence supports the moving party's contention that an open hearing would jeopardize the defendant's fair-trial rights, that alternatives will not protect these rights, and that closure will be effective in protecting them. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Locked courtroom doors. - Although the record disclosed that the trial court ordered the courtroom doors locked while the victim testified, the record did not disclose who remained in the courtroom during this period. Thus, the record did not disclose that defendant was denied a public trial. Washington v. Commonwealth, No. 0589-94-1 (Ct. of Appeals May 23, 1995).

Right to public trial abridged. - The defendant's constitutional right to a public trial was abridged where, at the beginning of his incest case and before the first witness, the prosecutor moved to remove spectators at least while the victim was testifying, where, in granting the motion, the trial court stated that the courtroom was to be cleared in view of the type of case, and thereafter and for the remainder of the trial, and where all persons except the actual participants in the proceedings were barred from the courtroom. Cumbee v. Commonwealth, 219 Va. 1132 , 254 S.E.2d 112 (1979).

IX. RIGHT TO JURY TRIAL.

A. GENERAL CONSIDERATION.

State and federal courts have upheld the constitutionality of the single-verdict jury system. Nail v. Slayton, 353 F. Supp. 1013 (W.D. Va. 1972).

An accused has a fundamental right to a trial by an impartial jury. Wilson v. Commonwealth, 2 Va. App. 134, 342 S.E.2d 65 (1986).

The right to a trial by an impartial jury is guaranteed under both the federal and Virginia Constitutions and this guarantee is reinforced by legislative enactment and by the rules of court. Gosling v. Commonwealth, 7 Va. App. 642, 376 S.E.2d 541 (1989).

It is the trial judge's duty to empanel jurors who are free from bias and prejudice against the parties. The trial judge's fulfillment of this duty involves the exercise of sound judicial discretion, which ordinarily is binding on appeal absent manifest error. The exercise of that discretion, however, is not without limits. Wilson v. Commonwealth, 2 Va. App. 134, 342 S.E.2d 65 (1986).

An impartial jury, being fundamental to a fair hearing in a fair tribunal, is a basic requirement of constitutional due process. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

There is no right more sacred to our institutions of government than the right to a public trial by a fair and impartial jury, no wrong more grievous than its denial, and no greater duty is enjoined upon the courts than to preserve that right untarnished and undefiled. The denial of a fair and impartial trial, as guaranteed by the Sixth Amendment to the federal Constitution, is also a denial of due process, demanded by the Fifth and Fourteenth Amendments, and the failure to strictly observe these constitutional safeguards renders a trial and conviction for a criminal offense illegal and void and redress therefor is within the ambit of habeas corpus. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposition of criminal cases. McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

This section means that the accused has a legal claim to a jury trial; that such is his privilege, but the presence of a jury in a criminal trial is not thereby made essential to the jurisdiction of the court. Brown v. Epps, 91 Va. 726 , 21 S.E. 119 (1895); Bowen v. Commonwealth, 132 Va. 598 , 111 S.E. 131 (1922).

Right to have jury decide guilt of lesser included offense. - A trial judge, after granting a defendant's motion to set aside a jury verdict based on insufficient evidence, may not sua sponte find the defendant guilty of a lesser charge where the defendant requested a jury trial for to do so would deprive the defendant of his right to have a jury decide guilt and sentence. Fitzgerald v. Commonwealth, 31 Va. App. 739, 525 S.E.2d 604 (2000).

Former § 17-139 was not unconstitutional. - Former § 17-139, giving to the corporation courts of the State concurrent jurisdiction with the circuit courts over criminal offenses committed within one mile of a city, was not unconstitutional, as violative of the constitutional right of the prisoner to have a jury of his vicinage. Karnes v. Commonwealth, 125 Va. 758 , 99 S.E. 562 (1919).

The rule requiring a jury in criminal trials in the first instance is a federal jury standard and applicable only to the federal courts. Manns v. Commonwealth, 213 Va. 322 , 191 S.E.2d 810 (1972).

The Sixth Amendment guarantee of the United States Constitution of a jury trial as extended to the state courts is adequately satisfied by the appeal of right and trial de novo procedure provided under Virginia law. Manns v. Commonwealth, 213 Va. 322 , 191 S.E.2d 810 (1972).

As right to trial by jury is right as it existed at time of adoption of Constitution. - There are many petty offenses which are triable without a jury, because they were so tried when the Constitution was adopted, and the right of trial by jury which is secured by the Constitution is the right as it existed at the time the Constitution was adopted. Ragsdale v. City of Danville, 116 Va. 484 , 82 S.E. 77 (1914); Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

The right to a jury trial is the same right to a jury trial that existed at common law. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Under common law, right was not absolute. - Under the common law as it was administered in England and the Colonies at the time of the adoption of our Bill of Rights in 1776, the right of an accused to a trial in the county in which the offense was committed and by a jury selected from that vicinage was not unconditional or absolute, but was limited by or subject to the authority of the court. Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

This section guarantees to an accused a trial by an impartial jury of his vicinage, one which is free from prejudice either for or against him. Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977).

This section was not designed as an avenue of escape for one charged with the commission of an offense where a fair and impartial jury cannot be secured in his vicinage. Nor was it intended, under such circumstances, to put the community beyond the protection of the law. Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977).

The word "vicinage," as used in the Constitution, corresponds with the territorial jurisdiction of the court in which the venue of the crime is laid. In the instant case the Corporation Court of the City of Roanoke, under former § 17-139 was vested with jurisdiction to try indictments for crime committed within the city and within one mile of its corporate limits, and this territory constituted the district over which the court had jurisdiction. Hence, a jury summoned from any part of that district was a jury of the "vicinage," or venue, of the crime. Karnes v. Commonwealth, 125 Va. 758 , 99 S.E. 562 (1919); Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

Compliance essential. - Compliance with the mandatory provisions of this section is essential to the jurisdiction of the court to try an accused without a jury. Cunningham v. Smith, 205 Va. 205 , 135 S.E.2d 770 (1964).

This section is aimed at the question of guilt or innocence of the accused. - The constitutional guaranty of a trial by jury is aimed at the trial of the question of the guilt or innocence of the accused, and not at the ascertainment of the punishment. The punishment may be fixed by the court, when allowed by the statute, subject only to the inhibition that it be not cruel or unusual. Bracy v. Commonwealth, 119 Va. 867 , 89 S.E. 144 (1916).

The constitutional right to a jury trial refers only to the right to have a jury determine guilt or innocence of an accused, not his sentence. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Convicted defendant has no constitutional right to jury trial limited to issue of punishment. - There is no constitutional right, either under the Constitution of Virginia or the Constitution of the United States, to a jury trial limited to the issue of punishment of one who has been found guilty of a crime. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Rather, third paragraph prohibits such trial. - When the court has found an accused guilty, the constitutional provision of the third paragraph of this section prohibits the court from then submitting the issue of punishment to a jury. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Language in the last paragraph of this section requires the court to determine the guilt or innocence of an accused and fix his punishment when an accused has pleaded not guilty and has voluntarily, knowingly and intelligently waived his right to a jury trial with the consent and concurrence of the Commonwealth's attorney and the court. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Defendant not entitled to jury trial on issue of punishment. - Since defendant voluntarily, knowingly and intelligently waived his right to a jury trial at his original trial, new trial on issue of punishment alone was in effect a continuation, or the second phase, of original trial, and he was thus not entitled to a jury trial on the issue of punishment. Fogg v. Commonwealth, 215 Va. 164 , 207 S.E.2d 847 (1974).

Guaranty applies to misdemeanors as well as felonies. - The guaranty of the right to a jury trial applies to misdemeanors as well as to felonies but one on trial for a misdemeanor may waive all irregularities as to the manner in which the jury is organized and instituted. Bowen v. Commonwealth, 132 Va. 598 , 111 S.E. 131 (1922).

But petty offenses are not regarded within purview of constitutional guaranties. - The general course of legislation, both in England and in this country, has been for centuries to confer summary jurisdiction upon mayors and police justices of cities and towns, and justices of the peace of counties, for the trial of minor offenses. Such offenses are not regarded essentially as crimes and misdemeanors within the purview of constitutional guaranties. Ragsdale v. City of Danville, 116 Va. 484 , 82 S.E. 77 (1914).

This section has no application to recidivist proceedings. Tyson v. Hening, 205 Va. 389 , 136 S.E.2d 832, cert. denied, 379 U.S. 867, 85 S. Ct. 139, 13 L. Ed. 2d 71 (1964).

Since a recidivist proceeding is not a criminal prosecution, it is evidence that, under this section, a defendant is not entitled to a felony jury consisting of 12 members. Tyson v. Hening, 205 Va. 389 , 136 S.E.2d 832, cert. denied, 379 U.S. 867, 85 S. Ct. 139, 13 L. Ed. 2d 71 (1964).

State's right to 12 jurors. - Virginia Const., Art. 1, § 8, contains no limitation on the time frame during which the consent of the Commonwealth and the trial court is required to proceed with fewer than 12 jurors; thus, despite the accused's willingness to proceed with a jury of less than 12 members following the illness of a juror, where the Commonwealth insisted upon its co-equal right to a jury of 12 members, the trial court properly declared that a mistrial was mandatory and a second trial for the same offenses did not violate double jeopardy principles. King v. Commonwealth, 40 Va. App. 364, 579 S.E.2d 634, 2003 Va. App. LEXIS 255 (2003).

No error in failure to strike visually impaired juror for cause. - Trial court's failure to strike a potential juror for cause based on the potential juror's impaired vision did not deny defendant of the right to trial by an impartial jury, because the potential juror was not without sight, the impairment was not obvious to those in the courtroom, and the court stated its intention to make accommodations for the juror. Clarke v. Commonwealth, No. 0930-08-2, 2009 Va. App. LEXIS 243 (May 26, 2009).

B. IMPARTIALITY.

The constitutional guarantee of a trial by impartial jury is reinforced by legislative mandate and by the rules of court: Veniremen must "stand indifferent in the cause." Breeden v. Commonwealth, 217 Va. 297 , 227 S.E.2d 734 (1976); Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

The constitutional and statutory guarantee of an impartial jury is no mere legal technicality, but a substantive right scrupulously to be observed in the day-to-day administration of justice. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

To be impartial, a juror must be indifferent as he stands unsworn. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Trial not impartial if juror has prejudged guilt of accused. - Where a juror has prejudged the guilt of an accused, before hearing the sworn testimony, it cannot be said that the accused has had a fair and impartial trial. Winn v. Commonwealth, 160 Va. 918 , 168 S.E. 351 (1933).

The courts must zealously guard the precept that only jurors free from partiality may sit at trials. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Ascertaining mental attitude of appropriate indifference. - Impartiality of a juror is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the federal Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

There are no settled rules for determining, in a particular case, whether a juror fulfills the requirement of impartiality. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

The disqualifying nature of a juror's impression that would show partiality lies not so much in the particular content of the impression as in its weight upon the juror's mind. The touchstone must be the juror's ability to lay the impression aside, whatever it may be, and to base his verdict upon the law and the evidence alone. The ascertainment of whether and to what extent a particular juror possesses this quality must, of necessity, depend almost entirely upon his own acknowledgments. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Light impressions which may fairly be supposed to yield to the testimony that may be offered, and which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, and which will combat that testimony and resist its force, do constitute a sufficient objection to him. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Where voir dire examination discloses that juror is leaning one way or the other and will not act with entire impartiality, the juror is biased and must be removed. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

Viewing the venire person's voir dire in its entirety, the record disclosed a series of tentative, equivocal responses to questioning intended to probe and ascertain the venire person's state of mind, leaving reasonable doubt of her partiality as a matter of law and requiring that she be removed for cause. Under such circumstances, it was reversible error to require defendant to exhaust a peremptory strike to remove the juror. Pennington v. Commonwealth, No. 1346-95-3 (Ct. of Appeals Feb. 4, 1997).

The juror is the best judge of whether or not his prepossessions amount to a decided opinion. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Declaration of impartiality. - If a juror is in a frame of mind which would enable him to render an impartial verdict, uninfluenced by his previous impressions, it is but fair to presume that he will so declare when questioned as to impartiality. The fact that he does not, or is unable to do so, and thus solve the doubt, is sufficient to disqualify him. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

In many cases in which the seating of a juror challenged for bias has been upheld, the challenged juror has, upon his voir dire examination, stated unequivocally in one form or another that he could render a fair and impartial verdict uninfluenced by his preformed impression. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

A juror who cannot unequivocally state, at the time of the trial, that he can give a defendant a fair and impartial trial, and whose answer, in response to questions concerning his bias, concludes with "Something would be there. I don't know.", is not an impartial juror within the meaning of the Sixth Amendment to the federal Constitution and this section. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

The material point for consideration in the answer of a juror as to the juror's impartiality is his inability or unwillingness to state how far his judgment would be affected by his preconceived opinions. Where his response to the inquiry of a court to his impartiality is that he could "not now say that he had such opinion that evidence would not remove it," and where he did not say that the opinion was of such a character that evidence would remove it, indicating that he was in doubt whether the opinion he had formed would yield to the testimony to be adduced on the trial, he has not removed doubt as to his impartiality. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Trial court did not abuse its discretion in refusing to strike a juror who worked with a sexual assault prevention team and with sexual assault victims in a trial where the defendant was accused of sexually assaulting a woman since the juror stated that he could be impartial and listen objectively to the evidence. Vance v. Commonwealth, No. 2450-00-4, 2002 Va. App. LEXIS 42 (Ct. of Appeals Jan. 29, 2002).

Jurors who declared their impartiality despite some exposure to newspaper coverage of a celebrated murder were properly allowed to sit on the jury in the absence of any evidence whatsoever that their impartiality had been impaired. Wolfe v. Commonwealth, 265 Va. 193 , 576 S.E.2d 471, 2003 Va. LEXIS 32, cert. denied, 540 U.S. 1019, 124 S. Ct. 566, 157 L. Ed. 2d 434 (2003).

Although a juror initially expressed some reservations about the juror's ability to decide defendant's case impartially, because the juror ultimately indicated that the juror could be impartial, the trial judge's failure to strike the juror for cause did not amount to an abuse of discretion. Lovell v. Commonwealth, No. 2402-04-3, 2005 Va. App. LEXIS 519 (Dec. 20, 2005).

Trial court did not err in failing to strike juror one for cause under Va. Const., Art. 1, § 8, § 8.01-358 , and Va. Sup. Ct. R. 3A:14 as: (1) although juror one indicated juror one would wonder why defendant did not testify, juror one immediately confirmed juror one's understanding of the legal principle affording defendant that right; (2) the trial court was justified in asking juror one a follow-up question to determine whether, like juror two, juror one thought juror one would be biased and unable to do juror one's duty as a juror, or whether serving as a juror and following the law, while difficult, was nevertheless within juror one's capabilities, and juror one responded that juror one thought juror one could sit and do it. Bufford v. Commonwealth, No. 0630-08-4, 2009 Va. App. LEXIS 335 (July 28, 2009).

In a case in which defendant appealed his conviction for rape, in violation of § 18.2-61, he argued unsuccessfully on appeal that the trial court erred in denying his motion to strike two prospective jurors, who indicated they were friends with police officers, based on their statements during voir dire. In light of the O'Dell decision, the two prospective jurors were not impermissibly biased in favor of police testimony, bias could not be presumed from the entirety of their statements during voir dire, and defendant had made claim during jury selection that any credibility determinations involving a police officer's testimony would be put to the jury. Weeks v. Commonwealth, No. 2837-07-3, 2009 Va. App. LEXIS 368 (Aug. 18, 2009).

Trial court should have granted defendant's motion to strike a potential juror for cause, and the failure to strike was inherently prejudicial, because the potential juror held an opinion of a fixed character that repelled the presumption of defendant's innocence; although the potential juror recognized that everyone was presumed innocent, he conceded that he still would "probably" have a problem with the presumption of defendant's innocence, and the Commonwealth's single rehabilitative question could not serve to fully rehabilitate the potential juror since nothing in his answer explained how he resolved the contradiction between his professed problem with the presumption of innocence and his ability to follow the law. Scott v. Commonwealth, 58 Va. App. 265, 708 S.E.2d 440, 2011 Va. App. LEXIS 160 (2011).

Failure to strike for cause a juror who knew the victim did not violate defendant's right to an impartial jury, as the juror stated she could be fair and did not know anything specific about the case. Simpson v. Commonwealth, No. 1283-12-4, 2013 Va. App. LEXIS 331 (Ct. of Appeals Nov. 12, 2013).

Trial court did not err in denying defendant's motion to strike a juror for cause, as the juror's own statements demonstrated that he was able to sit as an impartial juror. While the juror initially agreed with the statement that "no man ever has a right to raise a fist to a woman," later statements established that he would use appropriate considerations in determining whether defendant had a valid self-defense claim and he agreed that he would hear the facts before reaching a verdict. Weis v. Commonwealth, No. 0785-15-1, 2016 Va. App. LEXIS 268 (Ct. of Appeals Oct. 18, 2016).

Trial court did not abuse its discretion by denying defendant's motions to strike three jurors for cause based on their protests with groups sympathetic to an activist movement in the past because the jurors provided unequivocal answers to questions regarding their ability to be impartial and none of the prospective jurors indicated an inability to put aside their personal opinions and provide defendant with a fair trial based on the evidence presented. Goodwin v. Commonwealth, 71 Va. App. 125, 834 S.E.2d 487, 2019 Va. App. LEXIS 257 (Nov. 12, 2019).

Actual bias. - Trial court did not err in overruling defendant's motion for a mistrial after a hearing revealed that, even though the juror had mistakenly informed the trial court during voir dire that she had never been the victim of a serious offense, she had not made that mistake intentionally because she had either misunderstood the question or had not heard it; defendant did not show that she was actually biased and, thus, he was not entitled to the relief he sought. Blevins v. Commonwealth, 267 Va. 291 , 590 S.E.2d 365, 2004 Va. LEXIS 23 (2004).

Prospective juror's concerns about proximity to crime scene and being approached not tantamount to bias. - Trial court did not err under the Sixth Amendment and Va. Const., Art. I, § 8, in not striking for cause a prospective juror who expressed concern about living near the crime scene and being approached by outsiders. This concern was not tantamount to bias, and the trial court accepted her statement that she would definitely be fair and impartial. Garcia v. Commonwealth, 60 Va. App. 262, 726 S.E.2d 359, 2012 Va. App. LEXIS 186 (2012).

Discretion of trial court in voir dire. - Trial court did not abuse its discretion in refusing to permit defendant to ask potential jurors at voir dire about: (1) the age and sex of their children and grandchildren; (2) their educational coursework in psychology, psychiatry, or law; (3) their military experience, including courts martial; and (4) their philosophical beliefs because the trial court, and defendant, made full inquiry as to any bias or prejudice on the part of the potential jurors. Juniper v. Commonwealth, 271 Va. 362 , 626 S.E.2d 383, 2006 Va. LEXIS 29 (2006), habeas corpus proceeding, 2010 Va. Cir. LEXIS 201 (2010); habeas corpus dismissed, 281 Va. 277 , 707 S.E.2d 290, 2011 Va. LEXIS 61 (2011).

Trial court's denial of defendant's motions to strike three prospective jurors for cause was not error since none of them showed bias sufficient enough to allow the conclusion that defendant could not get a fair and impartial trial pursuant to Va. Const., Art. I, § 8. One prospective juror merely stated that she was fairly certain she could grant defendant a fair and impartial hearing, and the other two jurors simply expressed a reluctance to serve. Carter v. Commonwealth, No. 2948-06-4, 2008 Va. App. LEXIS 90 (Feb. 19, 2008).

Trial court did not err by granting the Commonwealth's motion to strike a juror for cause because its conclusion that the prospective juror's views about drug policy and the resultant potential bias was supported by the record; the trial court observed the prospective juror's demeanor, heard his responses, and determined that he was equivocal during voir dire. Hubbard v. Commonwealth, No. 0865-16-3, 2017 Va. App. LEXIS 186 (Aug. 1, 2017).

Impartiality of venireman who has formed opinion. - Every person accused of committing a crime has a constitutional right to trial by an impartial jury, and in deciding whether a venireman who has formed an opinion is constitutionally impartial, courts must determine the nature and strength of the opinion formed. Briley v. Commonwealth, 222 Va. 180 , 279 S.E.2d 151 (1981).

Inability to be impartial not shown. - Failure to remove a juror mid-trial after learning that the juror was the first cousin of an individual named in opening statements did not deprive defendant of an impartial jury, as the juror testified that the limited knowledge she had about the incident, that her cousin was in the car but that it was not his gun, would not affect her ability to hear the case. Burgess v. Commonwealth, No. 2225-11-2, 2012 Va. App. LEXIS 338 (Oct. 23, 2012).

Trial court did not err in retaining a prospective juror in the jury pool where the juror was able to answer the trial court's questions and both attorneys' questions in a manner that demonstrated to the trial court her ability to be a fair and impartial juror and, irrespective of her view that an innocent person had a story to tell and should testify, could set aside that view and decide the case solely based upon the law and the evidence. Holmes v. Commonwealth, No. 0602-15-2, 2016 Va. App. LEXIS 214 (Ct. of Appeals Aug. 2, 2016).

Trial court, after reviewing the conduct of two jurors, did not err in denying defendant's motion for mistrial and motion for a new trial because the two jurors' interactions with third parties did not indicate that they no longer remained impartial as established by their answers to the inquiries made during voir dire; the interactions as a whole did not demonstrate that defendant met his burden in establishing a probability of prejudice. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

Court did not err in denying defendant's motion to strike a juror for cause as the record did not indicate that juror could not have served as a fair and impartial juror because, despite her initial statements, the juror agreed that defendant was presumed innocent and that the case had to be decided on the evidence presented during trial; and juror refused to say that she thought defendant was guilty. Bustos v. Commonwealth, No. 1880-18-4, 2019 Va. App. LEXIS 307 (Dec. 27, 2019).

Trial court did not abuse its discretion by denying defendant's motion to strike a prospective juror for cause because, viewing the voir dire in its entirety, the record supported the trial court's conclusion that the juror could remain fair and impartial. Twice the juror responded that she was not sure if her best friend's murder would affect her judgment in the case, but in its entirety the trial court determined that the juror's voir dire indicated that she could remain fair and impartial. Purnell v. Commonwealth, No. 0679-19-2, 2020 Va. App. LEXIS 180 (June 23, 2020).

Reasonable doubt resolved in accused's favor. - Any reasonable doubt regarding a venireman's impartiality must be resolved in favor of the accused. Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729 (1985); Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

When asked if there was doubt in her mind whether she could sit impartially as a juror, juror responded, "It's possible but not likely." While it is unclear from the record whether juror meant to say that it was possible but not likely that she could be impartial or whether she meant it was possible she was prejudiced but not likely, all doubts as to the impartiality of a juror must be resolved in favor of the accused and the trial court abused its discretion and committed manifest error by refusing to strike juror for cause. Foley v. Commonwealth, 8 Va. App. 149, 379 S.E.2d 915 (1989).

Reasonable doubt about juror sufficient to insure exclusion. - Upon the issue of whether a particular juror is free from partiality, nothing should be left to inference or doubt. If there be a reasonable doubt whether the juror possesses these qualifications, that doubt is sufficient to insure his exclusion. For, it is not only important that justice should be impartially administered, but it should also flow through channels as free from suspicion as possible. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Court erred in failing to strike a juror where she would have required a defendant to prove sexual consent from a rape victim and this burden on the defendant was impermissible and the problem of the juror's "feeling" on consent was unaddressed. Bradbury v. Commonwealth, 40 Va. App. 176, 578 S.E.2d 93, 2003 Va. App. LEXIS 146 (2003).

A jury qualified by unconstitutional standards respecting punishment is not necessarily biased with respect to a defendant's guilt. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981).

Impartiality on question of punishment required. - This section and § 8.01-358 require jurors to be impartial not only upon the issue of guilt or innocence but also upon the question of punishment. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981).

Elimination permitted for bias in favor of death penalty. - The process of selection of an impartial jury permits elimination for cause of those veniremen who are biased in favor of the death penalty under all circumstances as well as those who are biased against its imposition under all circumstances. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981).

A prospective juror should have been removed for cause where, even though he indicated that he would consider both the imposition of the death penalty and life without parole if the defendant were convicted of capital murder, he exhibited a strong belief that if the defendant committed a capital offense, he should be sentenced to death; the juror had formed a fixed opinion about the punishment that the defendant should receive if the defendant were convicted of a capital offense, and thus, the juror was not impartial and indifferent in the cause. Green v. Commonwealth, 262 Va. 105 , 546 S.E.2d 446, 2001 Va. LEXIS 82 (2001).

Failure to question jury invalidates sentence. - In a prosecution for robbery and capital murder, the refusal by the trial judge to ask the jury whether, if the jury should happen to convict the defendant of capital murder, each juror would be able to consider voting for a sentence less than death, or to ask an equivalent question, was prejudicial error invalidating the sentence to death. Patterson v. Commonwealth, 222 Va. 653 , 283 S.E.2d 212 (1981).

Exclusion of juror within discretion of court. - Whether a prospective juror should be excluded for cause is a matter within the sound discretion of the trial court, and its action in refusing to exclude a particular venireman is entitled to great weight on appeal. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

Trial court's decision whether to retain or exclude an individual venireman is given deference on appeal, since it is in a position to see and hear the juror. Caprio v. Commonwealth, No. 2225-98-1 (Ct. of Appeals Mar. 14, 2000).

No error in excluding jurors based on availability for four-day trial. - Defendant was not denied his right to trial by an impartial jury when the trial judge distinguished between those who could serve on the four-day trial and those who could not; the methodology employed by the trial judge was not irregular as it did not exclude anyone or any cognizable group. Reeves v. Commonwealth, 42 Va. App. 650, 593 S.E.2d 827, 2004 Va. App. LEXIS 115 (2004).

Automatic exclusions not subject to court's discretion. - Ordinarily, a determination whether a juror is qualified rests within the sound discretion of the trial court, and its finding will not be disturbed on appeal absent manifest error. Some veniremen, however, are excluded for cause automatically, irrespective of a showing of impartiality during voir dire. Such automatic exclusions leave no room for judicial discretion. Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729 (1985).

The refusal to exclude for cause a venireman who believes an accused must prove his innocence is an abuse of discretion and a denial of a defendant's right to an impartial jury. Martin v. Commonwealth, 221 Va. 436 , 271 S.E.2d 123 (1980).

It was reversible error for the trial court to refuse to strike for cause a juror who clearly indicated that he expected an innocent person to put on evidence that proved that person's innocence. Carter v. Commonwealth, No. 2862-97-1, 1999 Va. App. LEXIS 18 (Ct. of Appeals Jan. 12, 1999).

In trial for rape and other sex related crimes trial court did not err in refusing to strike juror for cause where juror's daughter was rape victim. - Where defendant was charged with, inter alia, rape and other sex related crimes, the trial court did not err in refusing to strike a juror for cause where the juror's daughter was a rape victim; among other things, juror's statement that he could definitely set aside personal experiences showed that he did not have an impermissible bias that required the court to strike him for cause. Young v. Commonwealth, No. 3385-02-1, 2004 Va. App. LEXIS 49 (Ct. of Appeals Feb. 3, 2004).

Juror's failure to disclose prior victimization. - Right to impartial jury was not violated by juror's failure to disclose a prior victimization to the court once the victim remembered incident from the victim's childhood, because the record clearly demonstrated that the juror did not intentionally give incorrect response to voir dire question; the juror explained the juror was not thinking of the situation at the time the Commonwealth posed its question about victimization. Evans v. Commonwealth, No. 0078-06-1, 2007 Va. App. LEXIS 240 (June 19, 2007).

Refusal to remove impartial juror not harmless error even if peremptory strike used. - A trial court's refusal to remove a juror who is not impartial does not constitute harmless error even if counsel uses a peremptory strike to exclude the juror. David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379 (1997).

Forcing use of peremptory strike. - Trial court erred in disallowing inquiry into prospective juror's previous employment as a law-enforcement officer, and in denying defendant's motion to strike prospective juror for cause, which forced defendant to use a peremptory strike to remove prospective juror. Childress v. Commonwealth, No. 1890-98-4, 2000 Va. App. LEXIS 106 (Ct. of Appeals Feb. 15, 2000).

Jury officer's improper remarks to jurors were constitutionally impermissible. - Where jury orientation officer made improper remarks to persons who were assembled as prospective jurors, some of whom ultimately served on defendant's jury later that same day, and where the unmistakable message sent was that defendants chose jury trials because juries were lenient and, furthermore, that the juries were considered in a bad light by courts of the surrounding jurisdictions, both the content of the message and official nature by which the message was conveyed were constitutionally impermissible, and under these circumstances, prejudicial harm was presumed; the mere fact that three of the 12 jurors said they were not influenced in their deliberations was insufficient, standing alone and in the absence of evidence that they were the only jurors who heard the remarks, to establish harmless error. Scott v. Commonwealth, 11 Va. App. 516, 399 S.E.2d 648 (1990).

When impermissible remarks were made to jurors immaterial. - It was immaterial whether the jury orientation officer's constitutionally impermissible remarks to jurors occurred before the trial started, during trial, or during actual deliberations. Scott v. Commonwealth, 11 Va. App. 516, 399 S.E.2d 648 (1990).

Judge's remarks. - The trial judge should be careful to guard against prejudice to the accused by the judge's remarks to the jury because the influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling. Wilson v. Commonwealth, 2 Va. App. 134, 342 S.E.2d 65 (1986).

Interactions with assistant Commonwealth's Attorney. - Juror's interaction with an assistant Commonwealth's Attorney in the Commonwealth's Attorney's Office did not establish that the juror held a bias against defendant because the juror did not comment on defendant or the evidence; rather, the juror asked general questions related to the functioning of the Commonwealth's Attorney's Office. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

Interactions with third parties. - Juror's interactions with third parties, while troubling, did not establish prejudice creating a doubt as to the fairness of the trial because questioning a court deputy about the knife he carried merely showed the juror's curiosity about how the knife would have been used against the victim, which, although an improper question for the deputy, was not a demonstration of bias. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

Trial judge erred in apprising jury that defense counsel had challenged jury for cause and had made motion to strike entire jury panel. Furthermore, the error was prejudicial. Wilson v. Commonwealth, 2 Va. App. 134, 342 S.E.2d 65 (1986).

Where, in response to defense counsel's complaint that the judge's remarks would prejudice his client, the judge acknowledged defense counsel's concern that his remarks might have had such an effect on the jury and he then attempted to cure that effect by explaining to the jury on further voir dire that he did not find any measures taken by defense counsel to be "improper from a legal sense," the explanation that defense counsel's actions were not "improper" in a "legal sense" was equivocal and did not negate the previous inference of impropriety. Furthermore, the explanation was insufficient to dispel from the minds of the jury the impression that the defense lacked confidence in the jury's ability fairly and impartially to determine the case. Wilson v. Commonwealth, 2 Va. App. 134, 342 S.E.2d 65 (1986).

When a juror is related by blood or marriage to either a party of record or a victim in a criminal prosecution, the potential for prejudice is inherent and the law conclusively presumes partiality. Gray v. Commonwealth, 226 Va. 591 , 311 S.E.2d 409 (1984).

The long-standing, common-law rule disqualifying a venireman who is related, within the ninth degree of consanguinity or affinity, to a party to a suit is absolute; no discretion is left to the court. Gray v. Commonwealth, 226 Va. 591 , 311 S.E.2d 409 (1984).

Circuit court erred in failing to strike a prospective juror for cause because the juror was related to a Commonwealth's witness - a police officer/witness's father was the juror's first cousin - the juror's answers to the questions posed during voir dire did not demonstrate that he could be fair and impartial where, although the juror responded affirmatively when asked if he could be fair and impartial and make a decision based on the evidence and not solely on testimony, and the Commonwealth attorney's attempt to rehabilitate the juror was insufficient to establish that his personal relationship with the officer would not affect his ability to be impartial and give appellant a fair trial. Bell v. Commonwealth, No. 1765-16-2, 2017 Va. App. LEXIS 202 (Aug. 8, 2017).

Insisting on juror who acknowledges himself to be under influences. - To insist on a juror's sitting on a cause when he acknowledges himself to be under influences, no matter whether they arise from interest, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt, the proceedings of courts of justice. The courts do not sit to procure the verdicts of partial and prejudiced men, but of men, honest and indifferent in causes. This is the administration of justice which the law requires. Durham v. Cox, 328 F. Supp. 1157 (W.D. Va. 1971).

Knowledge of conviction for offense for which accused being retried. - When a venireman knows of an accused's previous conviction of the same offense for which he is being retried, the venireman cannot qualify as a juror in the new trial. Barker v. Commonwealth, 230 Va. 370 , 337 S.E.2d 729 (1985).

Commonwealth's use of peremptory strikes to remove females was improper. - Defendant's Batson motion presented sufficient facts to establish a prima facie case of gender discrimination under circumstances in which the Commonwealth used all its peremptory strikes to eliminate white females, ages 40 to 67, from the jury, resulting in a predominantly male jury; the record did not support the trial court's ruling that the Commonwealth offered a gender-neutral reason for the strikes. The only other explanation offered by the Commonwealth was that the stricken female jurors and defendant were members of the same age group and it was based primarily on whether or not they would be more favorable in their deliberations towards the Commonwealth's position than the defense. Blanton v. Commonwealth, No. 1955-05-2, 2007 Va. App. LEXIS 164 (Apr. 17, 2007).

Juror's use of term "great prejudice" was sufficient to warrant her removal from the panel although there was no showing that her "prejudice" was tantamount to the type of prejudice required to exclude a juror for cause. Regardless of the words used by the juror, if she asserts that she is leaning one way or the other and that she would not act with total impartiality, she is biased. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

It was immaterial that a juror stated that she had a "prejudice" rather than a fixed opinion as to the guilt or innocence of the defendant. Although many of the cases holding a juror disqualified for bias are premised upon the juror's preordained verdict, the constitutional protections do not end there. Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

Explanation for strike not discriminatory. - Trial court did not err in rejecting defendant's Batson challenge to the Commonwealth's peremptory strike of a potential juror where the record supported the trial court's conclusion that the juror was not struck from the panel because of race, but rather, the juror was struck because the juror's occupation as a teacher may have made the juror overly sympathetic to the defense where defendant was described as having mild mental retardation. Pritchett v. Commonwealth, No. 3132-06-3, 2008 Va. App. LEXIS 594 (Oct. 14, 2008).

Defendant's Batson claim, based on the use of a peremptory strike to remove an African-American juror failed, because the prosecutor's explanation for striking the potential juror, the fact that the juror had a child with an extensive criminal record and may have been tainted by the family connection, was not discriminatory. Clarke v. Commonwealth, No. 0930-08-2, 2009 Va. App. LEXIS 243 (May 26, 2009).

Opinion as to guilt based on media reports. - A prospective juror should have been excluded for cause where the juror was adamant in stating that she believed the defendant was guilty based on what she read in the paper and that he had to be guilty because he was present at the scene of the crime; although the juror asserted that she understood that the defendant was presumed innocent, that he was not required to present any evidence and that the burden was on the Commonwealth to prove his guilt beyond a reasonable doubt, the juror's voir dire, when considered in its entirety, clearly indicated that the juror had formed firm opinions that would have impaired her ability to be impartial and stand indifferent in the cause. Green v. Commonwealth, 262 Va. 105 , 546 S.E.2d 446, 2001 Va. LEXIS 82 (2001).

Prospective juror's knowledge of case from media accounts not disqualifying. - In a sexual battery prosecution, third or subsequent offense, a prospective juror admitted following defendant's case in the newspaper and knowing that he had prior convictions for molestation charges, but stated that if the trial court told her not to consider those convictions, she could do so. The trial court did not abuse its discretion in refusing to strike her for cause as her answers indicated that, despite her knowledge of the case, she could be impartial. Minh Ngoc Tran v. Commonwealth, No. 1610-07-3, 2008 Va. App. LEXIS 536 (Dec. 9, 2008).

Statement made after conclusion of trial. - Juror's message to the Commonwealth's attorney, in which he stated that he was proud to have her working "on our side," did not demonstrate bias on the part of the juror because he communicated with the Commonwealth's attorney a day after the trial concluded; therefore, the juror's statement could not be viewed as an expression of his bias during the period when he was deliberating over defendant's guilt or sentence. Dosky v. Commonwealth, No. 1771-17-4, 2019 Va. App. LEXIS 188 (Aug. 13, 2019).

Circumstances under which juror voiced her concerns clearly revealed a basis necessitating her exclusion, where, she withheld her remarks until after the completion of the Commonwealth's opening statement, giving her an extended period of time to reflect on her potential prejudices, the fact that she made her statement at a time when it would disrupt the proceedings, as opposed to a time when it was specifically requested, evinced, her strong belief that she could not function impartially as a juror, and, she expressed a "great prejudice" against the defendant. Additionally, when asked by the court whether she could render a fair and impartial verdict based solely upon the evidence presented at trial, she responded: "I simply feel I have some preconceived ideas." Educational Books, Inc. v. Commonwealth, 3 Va. App. 384, 349 S.E.2d 903 (1986).

Motion for mistrial where juror no longer impartial. - Juror who, during luncheon recess, expressed to third parties a conviction that an individual who may be instrumental in obtaining the release of a person charged with a crime should "feel guilty" that the accused is "allowed to walk the streets," charged attorneys whose clients are released of having no remorse as long as the lawyers get paid, and opined that defendant either was not going to be "as fortunate" or was "not going to get off," was probably no longer impartial, even though he had promised the court that he could maintain an open mind on the issues until the remainder of the case was completed, and defendant's motion for mistrial should have been granted. Haddad v. Commonwealth, 229 Va. 325 , 329 S.E.2d 17 (1985).

Rehabilitative evidence based on assent to leading questions. - Where the record showed that after the juror declared her bias in favor of the prosecution, the evidence used to rehabilitate her did not come from her but was based on her mere assent to leading questions, this juror was not per se disqualified because of her declared bias; had her rehabilitative responses come from her in response to non-leading questions, the trial court would not have abused its discretion by refusing to strike her for cause. Because her rehabilitative responses consisted solely of her mere assent to the court's leading questions, she should have been stricken for cause. David v. Commonwealth, 26 Va. App. 77, 493 S.E.2d 379 (1997).

Defendant's claim that a question the trial court asked on voir dire was leading and inappropriately influenced the entire panel because it ultimately had the effect of other jurors not answering questions in an honest and forthright manner was rejected as: (1) the jurors arguably requiring rehabilitation ultimately were struck for cause; (2) the trial court's question was asked only after both the trial court and defendant had multiple opportunities to query potential jurors on the issues of the burden of proof, the presumption of innocence, and the appropriateness of drawing adverse inferences from the failure of the accused to testify; and (3) based on the voir dire as a whole, no reasonable doubt existed as to the impartiality of the remaining jurors not struck for cause. Nelson v. Commonwealth, No. 3408-02-2, 2004 Va. App. LEXIS 224 (Ct. of Appeals May 18, 2004).

Defendant's right to an impartial jury was violated when the trial court denied two of defendant's challenges for cause, as both jurors indicated that they might have a hard time being impartial due to their exposure to children at work and one juror indicated she had witnessed her sister molested by her stepfather, and the trial court's attempt to rehabilitate involved the use of leading questions as to whether the jurors could put those things aside, leaving the appellate court with doubt as to whether the jurors could sit impartially. Webber v. Commonwealth, No. 0665-12-4, 2013 Va. App. LEXIS 171 (Ct. of Appeals June 4, 2013).

No error in rejecting capital defendant's challenges for cause. - It is improper to ask prospective jurors speculative questions regarding whether they would automatically impose the death penalty in certain hypothetical situations without reference to a juror's ability to consider the evidence and follow the court's instructions; thus, a circuit court properly seated a prospective juror, despite defendant's challenge for cause, where, although the prospective juror stated at one point, in response to confusing questions by defense counsel, that he would automatically impose the death penalty, he subsequently clarified his position and stated that he would follow the court's instructions and consider both sentencing alternatives. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

C. WAIVER OF JURY TRIAL.

1. IN GENERAL.

Under this section all criminal cases may be submitted to the court, to be heard by the court without the intervention of a jury. Cobb v. Commonwealth, 152 Va. 941 , 146 S.E. 270 (1929).

Weight given defense attorney's waiver of jury trial. - An attorney may not, without authorization, surrender an accused's right to a jury trial, and thereby, permit the trial court to presume conclusively the effectuation of a valid waiver. The trial court may not rely on such waiver of an accused's right to a jury trial, by itself, as a de facto manifestation of voluntary and intelligent consent by the accused. Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618 (1997).

The record spoken of in this section is that which distinguishes a court of record from one not of record. It is the order book in which, by §§ 17-27 and 17-28, are required to be kept the proceedings, orders and judgments of courts of record. Cunningham v. Smith, 205 Va. 205 , 135 S.E.2d 770 (1964).

Word "waiver" need not be used. - Continuance order stated that upon motion, the matter was to be heard by the court, and it could be discerned that defendant, the attorney for the Commonwealth, and the trial court waived a jury trial; the waiver does not need to appear in conviction or sentencing orders, and there is nothing that mandates that the word waiver must be intoned, as long as the elements of waiver are met, and while the order did not expressly state waiver, it was a waiver that occurred with the concurrence of the Commonwealth Attorney and the court, and the trial court had subject matter jurisdiction. Karika v. Commonwealth, No. 1512-15-1, 2016 Va. App. LEXIS 288 (Ct. of Appeals Nov. 1, 2016).

Waiver must be knowing, intelligent and voluntary. - Under the Constitution of Virginia the right to trial by jury in criminal cases is guaranteed; reversible error occurs unless the record indicates that the accused made a knowing, intelligent and voluntary waiver of the right to trial by jury. Robinson v. Commonwealth, 36 Va. App. 1, 548 S.E.2d 227, 2001 Va. App. LEXIS 461 (2001).

Determination of whether a defendant's waiver of a jury trial was voluntary, knowing and intelligent must be made by the trial court. Moffett v. Commonwealth, 24 Va. App. 387, 482 S.E.2d 846 (1997).

Defendant never waived right to jury trial. - Trial court erred in refusing to grant defendant a jury trial because defendant was denied his right to a jury trial under Va. Const., Art. I, § 8, and he never waived his right to a jury trial under Va. Sup. Ct. R. 3A:13(b). Williams v. Commonwealth, No. 0715-11-3, 2011 Va. App. LEXIS 367 (Nov. 29, 2011).

Fact that defendant refused to participate in a colloquy during his felony indecent exposure arraignment did not mean that the trial court could interpret his silence as both a waiver of his right to be tried by a jury and an acquiescence to being tried by the court because this violated the Virginia Constitution. The trial court's conviction orders did not reflect that defendant consented either to a waiver of his jury trial rights or to a bench trial; therefore, the trial court did not have jurisdiction to proceed with a bench trial. Richardson v. Commonwealth, 67 Va. App. 436, 796 S.E.2d 854 (2017).

Record. - A defendant's consent to waive trial by jury and consent of trial court and prosecutor must be entered into the record. Moffett v. Commonwealth, 24 Va. App. 387, 482 S.E.2d 846 (1997).

Trial order was proper. - Trial order recited that both the Commonwealth's attorney and the trial court concurred in defendant's jury trial waiver and a bench trial; this recitation satisfied the requirements of Va. Const., Art. 1, § 8, and of § 19.2-257 regarding waiver of a jury trial. Defendant made no objection to the trial court that the trial order did not accurately reflect the proceedings at his trial; thus, defendant's assertion that the order was inaccurate was waived and would not be considered on appeal. Lindsey v. Commonwealth, No. 0767-05-1, 2006 Va. App. LEXIS 433 (Oct. 3, 2006).

Withdrawal of waiver untimely. - Where defendant voluntarily and knowingly waived his right to a jury trial prior to trial and his attempt to withdraw his waiver, made on the day of trial, was untimely, the trial court properly denied his request for a jury trial. Davis v. Commonwealth, No. 3318-02-3, 2003 Va. App. LEXIS 614 (Ct. of Appeals Dec. 2, 2003).

Denial of motion to withdraw waiver. - Where the record did not contain any finding by the trial court that a jury trial could not have been conducted on the scheduled trial date or shortly thereafter, nor did it show that any of the witnesses would not have been available for trial at a later date, the trial court abused its discretion in denying defendant's motion for withdrawal of waiver and defendant's demand for a jury trial. Cuevas-Rosales v. Commonwealth, No. 0444-09-2, 2010 Va. App. LEXIS 266 (July 6, 2010).

2. PLEA OF NOT GUILTY.

Circuit courts must assume that trial will be by jury unless and until the accused knowingly and intelligently waives the right and the attorney for the Commonwealth and the trial court concur in the decision to forego a jury trial. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

But it is necessary that the consent of the accused be in some manner made manifest. Something more than simple silence must appear. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

The failure to include in the record the defendant's consent to waive his right to be tried by a jury or the concurrence by the attorney for the Commonwealth and the court required that the conviction be set aside. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

Accused must give express and intelligent consent for waiver to be effective. - If the accused pleads not guilty, he may, with his consent and the concurrence of the attorney for the Commonwealth and of the court entered of record, be tried by a smaller number of jurors or waive a jury. However, before waiver of a trial by jury can be effective, the accused must give his express and intelligent consent. McCormick v. City of Virginia Beach, 5 Va. App. 369, 363 S.E.2d 124 (1987).

Deliberate action by the accused indicating waiver of jury. - Where the Commonwealth asserts that an accused elected a bench trial, there must be a showing of some deliberate action by the accused indicating an election to forego his or her right to a jury trial. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

Where there was no indication that the trial court required the defendant at any time prior to the trial date to elect either trial by jury or trial by bench, and nothing in the record showed that the defendant knew of his right to trial by jury, the defendant did not waive his right to a jury trial. Wright v. Commonwealth, 4 Va. App. 303, 357 S.E.2d 547 (1987).

On plea of not guilty, manner of evidencing consent not prescribed. - Upon a plea of not guilty with the consent of the accused and the concurrence of the attorney for the Commonwealth, both entered of record, the court shall try the case without the intervention of a jury. Nothing is said about the manner in which this consent may be evidenced, but the consent of the accused and the concurrence of the Commonwealth's attorney and of the court all entered of record is still necessary. Boaze v. Commonwealth, 165 Va. 786 , 183 S.E. 263 (1936).

Commonwealth has equal voice with defendant in deciding to try case before judge. - While the Commonwealth has no voice in defendant's decision as to who will defend him, it does have an equal voice with defendant in the decision of whether the case will be tried by a judge. O'Dell v. Commonwealth, 234 Va. 672 , 364 S.E.2d 491, cert. denied, 488 U.S. 871, 109 S. Ct. 186, 102 L. Ed. 2d 154 (1988).

Failure of record to show concurrence of court and prosecuting attorney in waiver. - Where a defendant waives trial by jury, even though the order of conviction does not expressly recite the concurrence of the court in the waiver, the requirement of the Constitution that such concurrence be entered of record is met, because such concurrence can be fairly inferred from the statement in the order that the court, after the waiver, heard the case without a jury. However, since the concurrence of the prosecuting attorney is also required to be entered of record and such concurrence could not be fairly inferred from the order, it is fatally defective and the omission cannot be supplied by order nunc pro tunc. Catlett v. Commonwealth, 198 Va. 505 , 95 S.E.2d 177 (1956).

Concurrence of Commonwealth's attorney. - An order reciting that the accused elected to be tried by the judge and not by a jury, and further reciting "and the attorney for the Commonwealth not requiring a jury, the court with the consent of both proceeded to hear the case," showed the concurrence of the Commonwealth's attorney. Teasley v. Commonwealth, 188 Va. 376 , 49 S.E.2d 604 (1948).

The mere existence in the judge's order of the cure-all phrase "as provided by law" could not supply the jurisdictional requirement that the concurrence of the Commonwealth's attorney be entered of record. No inference could be gathered from the phrase that the Commonwealth's attorney concurred in the submission of the case to the court. Cave v. Cunningham, 203 Va. 737 , 127 S.E.2d 118 (1962).

This section vests in the trial court discretion to determine whether to accept a waiver of jury trial. McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

This section obviously contemplates that in some cases the court would decline to try a plea of not guilty without a jury, and it would be wholly illogical to infer vindictiveness on the part of a court which does nothing more than exercise the discretion conferred on it by law. McClung v. Weatherholtz, 351 F. Supp. 5 (W.D. Va. 1972).

Minor may waive jury. - A minor charged with a crime has just as much right to waive a trial by jury as an adult. Mickens v. Commonwealth, 178 Va. 273 , 16 S.E.2d 641, cert. denied, 314 U.S. 690, 62 S. Ct. 362, 86 L. Ed. 552 (1941).

Withdrawal of waiver. - The Virginia Constitution and statutes are silent as to whether an accused will be permitted to withdraw a waiver of a trial by jury once that waiver has been exercised; and if so, when such withdrawal of the waiver must be exercised. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

A motion to withdraw a waiver of a jury trial made 11 days before the defendant's cases were set for trial was seasonably made and the trial judge abused his discretion in denying the defendant the right to withdraw his waiver where the motion was not for the purpose of delay, and granting the motion would not have resulted in an unreasonable delay of the trial thereby impeding the cause of justice. Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977).

Denial of defendant's motion to withdraw his waiver of his right to a jury trial was improper because the record failed to show that the motion was made solely for the purpose of delay or whether defendant's request for a jury trial could have been accommodated at the time it was made. The record also failed to disclose the number of witnesses that would have been inconvenienced by the continuance, or the difficulty that rescheduling the trial would present to those witnesses. Cokes v. Commonwealth, 280 Va. 92 , 694 S.E.2d 582, 2010 Va. LEXIS 60 (2010).

3. PLEA OF GUILTY.

The third paragraph of this section is self-executing. It contains no provision that all of the statutes relating to the conduct of a trial are to be construed as incorporated into the Constitution, and thereby made jurisdictional provisions. Thornhill v. Smyth, 185 Va. 986 , 41 S.E.2d 11 (1947).

The provision of this section, dealing with a plea of guilty, is self-executing, and goes to the very nature of the tribunal by which an accused who pleads guilty shall be tried. It cannot be waived by the accused, and, if breached, objection to its breach may be raised for the first time in this court. Dixon v. Commonwealth, 161 Va. 1098 , 172 S.E. 277 (1934).

The right to trial by jury is waived by entering a plea of guilty. Hale v. Cox, 336 F. Supp. 1364 (W.D. Va. 1972).

Trial court may not change plea. - Nothing in the law authorizes a trial court to change a defendant's plea of not guilty to guilty, even when the defendant essentially admits his guilt on the witness stand. The trial court erred in informing the defendant that the defendant's plea would be changed to guilty should he testify and admit his guilt, thereby depriving the defendant of his right to have the jury determine guilt and impose sentence. Mason v. Commonwealth, 14 Va. App. 609, 419 S.E.2d 856 (1992).

It is mandatory not to have jury on plea of guilty. - The language of this section makes it mandatory that, whenever an accused pleads guilty to the whole of any indictment, the court shall try the case without the intervention of a jury. Dixon v. Commonwealth, 161 Va. 1098 , 172 S.E. 277 (1934); Mickens v. Commonwealth, 178 Va. 273 , 16 S.E.2d 641, cert. denied, 314 U.S. 690, 62 S. Ct. 362, 86 L. Ed. 552 (1941).

The 1928 amendment to this section in the Constitution of 1902 made it mandatory on the trial court to hear a case without the intervention of a jury after a plea of guilty. Cottrell v. Commonwealth, 187 Va. 351 , 46 S.E.2d 413 (1948).

Former Va. Const., 1902, § 8 (now this section) and former §§ 19-166 and 19-223 (see now § 19.2-257) did no more than authorize and require a trial court, when a plea of guilty was entered in a criminal case, to dispose of the case without the intervention of the jury. The alternate provisions relating to a plea of guilty were intended only to make clear that the requirement of consent and concurrence entered of record did not apply when a guilty plea was entered and that it was mandatory for the court to dispose of the case without the intervention of a jury. Kibert v. Commonwealth, 216 Va. 660 , 222 S.E.2d 790 (1976).

Where guilty plea to whole indictment, error to submit issues to jury. - Where a guilty plea to the whole of an indictment has been tendered, it is reversible error for a trial court to submit the degree of guilt or the question of punishment to the jury. Graham v. Commonwealth, 11 Va. App. 133, 397 S.E.2d 270 (1990).

Consent of Commonwealth's attorney upon a plea of guilty is not required. - Insofar as they required the consent of the attorney for the Commonwealth to the trial of a case by the court without a jury upon a plea of guilty, former §§ 19-166 and 19-223 were unconstitutional and of no effect. The court is required by this section to hear and determine such a case whether the Commonwealth's attorney consents or not. Cottrell v. Commonwealth, 187 Va. 351 , 46 S.E.2d 413 (1948). For present provisions corresponding to former §§ 19-166 and 19-223, see §§ 19.2-257 and 19.2-288, respectively. Section 19.2-288, however, contains no provisions for the court to hear the case without a jury on a plea of guilty.

To the extent that former §§ 19-166 and 19-223 were in conflict with this section, they were unconstitutional, for upon a plea of guilty in a criminal case this section requires the court to try the case, without a jury, at all events. Dixon v. Commonwealth, 161 Va. 1098 , 172 S.E. 277 (1934).

And plea of guilty in person is no longer required by this section but is statutory. - Since the 1928 amendment to this section there is no longer any constitutional requirement in Virginia that the plea of guilty be made in person, but that is still a statutory requirement under former § 19.1-192 (now § 19.2-257). Cottrell v. Commonwealth, 187 Va. 351 , 46 S.E.2d 413 (1948).

Entry of a knowing and voluntary, but non-conditional plea waived appeal from denial of motion to suppress. - Because defendant did not enter a conditional guilty plea pursuant to § 19.2-254, to a charge of possession of Oxycodone, but he entered said plea voluntarily and intelligently, he waived his right to appeal from the judgment denying his motion to suppress the evidence seized against him. Hill v. Commonwealth, 47 Va. App. 667, 626 S.E.2d 459, 2006 Va. App. LEXIS 63 (2006).

D. PRACTICE AND PROCEDURE.

Right to have sanity determined by jury. - Defendant in murder prosecution was, under the evidence, entitled to have the question of his sanity determined by a fair and impartial jury, uninfluenced or affected by any testimony except that produced in open court. Thompson v. Commonwealth, 193 Va. 704 , 70 S.E.2d 284 (1952).

Unanimity requirement. - In a capital case in which defendant had been sentenced to death, the verdict form in defendant's second trial was defective in failing to explicitly set out the unanimity required in the jury finding of one or both of the aggravating factors beyond a reasonable doubt. Additionally, Article I, § 8, of the Constitution of Virginia provided that a jury's verdict in a criminal case had to be unanimous. Prieto v. Commonwealth, 278 Va. 366 , 682 S.E.2d 910, 2009 Va. LEXIS 94 (2009), cert. denied, 177 L. Ed. 2d 332, 2010 U.S. LEXIS 4926 (U.S. 2010); appeal after remand, decision reached on appeal by, 283 Va. 149 , 721 S.E.2d 484, 2012 Va. LEXIS 20 (2012).

Driving under influence and driving on revoked license. - This section and Rule 3A:13 (a) guaranteed defendant a right to a jury in the trial court on both charges of driving under the influence and driving on a revoked operator's license. McCormick v. City of Virginia Beach, 5 Va. App. 369, 363 S.E.2d 124 (1987).

Recess. - The defendant argued on appeal that since the case had to be recessed the trial judge should have reconsidered the motion to withdraw the waiver of a jury trial because the reasons for denying the motion no longer existed. However, the defendant did not renew his motion to withdraw the waiver of a jury trial and did not request the trial judge to reconsider his ruling in any manner. Therefore, the trial judge had no opportunity to rule upon the question the defendant presented on appeal. Weis v. Commonwealth, No. 1986-95-2 (Ct. of Appeals Jan. 7, 1997).

Change of venire or venue. - This section does not inhibit the enactment of statutes authorizing a change of venire and change of venue in criminal cases on motion of the Commonwealth and over the objection of the accused. Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951); Poindexter v. Commonwealth, 218 Va. 314 , 237 S.E.2d 139 (1977).

However, this section is not satisfied by mere inconvenience in obtaining a jury. It must appear that impartial jurors cannot with reasonable effort be obtained in the jurisdiction and that there is a necessity for summoning them from without it. Newberry v. Commonwealth, 192 Va. 819 , 66 S.E.2d 841 (1951).

Proficiency with English language. - A juror's lack of proficiency with the English language renders the juror constitutionally disqualified from jury service if the juror is actually incapable of substantially comprehending the evidence and arguments presented at trial. Mason v. Commonwealth, No. 0499-96-4, 1997 Va. App. LEXIS 423 (Ct. of Appeals June 24, 1997).

Extraneous influences on jury. - Trial court acted within its discretion by denying defendant's motion for mistrial based on juror contact with a courtroom observer and no formal hearing or additional inquiry was required. Nothing in the record supported defendant's contention that the observer said anything substantive about the trial to the juror or that the contact prejudiced defendant. Rankin v. Commonwealth, No. 1671-16-1, 2018 Va. App. LEXIS 112 (Apr. 24, 2018), aff'd, 297 Va. 199 , 825 S.E.2d 81, 2019 Va. LEXIS 28 (2019).

Agreement of jury to two-thirds verdict. - Where the defendant was denied his right to a unanimous verdict in his first trial when the jury agreed to a two-thirds verdict, there was a manifest necessity as required by this section that the trial court declare a mistrial so that the petitioner would be assured of his right not to be convicted without the unanimous consent of the whole jury. Price v. Slayton, 347 F. Supp. 1269 (W.D. Va. 1972).

The burden of proving purposeful and intentional discrimination in the selection of the jury is on the defendant. Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862 (1961); 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

Absence of women on jury not proof of discrimination. - Where no evidence indicated that the jury was not selected in accord with statute, the mere absence of women did not prove purposeful discrimination. Near v. Commonwealth, 202 Va. 20 , 116 S.E.2d 85 (1960), cert. denied, 365 U.S. 873, 81 S. Ct. 907, 5 L. Ed. 2d 862 (1961); 369 U.S. 862, 82 S. Ct. 951, 8 L. Ed. 2d 19 (1962).

Nonmember has no standing to object to exclusion of class. - A criminal defendant in a state prosecution has no standing to object on constitutional grounds to exclusion from the jury of a class to which he does not belong. Quick v. Harris, 214 Va. 632 , 202 S.E.2d 869 (1974), cert. denied, 420 U.S. 907, 95 S. Ct. 824, 42 L. Ed. 2d 836 (1975).

Thus, male defendant cannot challenge exclusion of women. - A male defendant does not have standing in a state court to challenge the systematic exclusion of women from juries. Quick v. Harris, 214 Va. 632 , 202 S.E.2d 869 (1974), cert. denied, 420 U.S. 907, 95 S. Ct. 824, 42 L. Ed. 2d 836 (1975).

Querying jurors as to range of punishment. - Neither the defendant nor the Commonwealth in a non-capital criminal prosecution has a constitutional or statutory right to ask the members of a jury panel questions about the range of punishment that may be imposed upon a defendant if he is ultimately convicted of the crimes charged or of lesser included offenses. Commonwealth v. Hill, 264 Va. 315 , 568 S.E.2d 673, 2002 Va. LEXIS 104 (2002), cert. denied, 537 U.S. 1202, 123 S. Ct. 1300, 154 L. Ed. 2d 1043 (2003).

The taxing of the costs of the jury to a defendant in a criminal case is not an invasion of the constitutional right of the accused to a trial by jury. Kincaid v. Commonwealth, 200 Va. 341 , 105 S.E.2d 846 (1958).

Defendant received fair trial despite misconduct by discharged juror. - Defendant was not denied a fair trial by an impartial jury despite improper conduct of a juror where the subject juror was discharged, so he did not participate in the deliberations that resulted in the guilty verdict, only one juror heard the comments about the specific article discussing a defense motion for mistrial, and the trial court not only instructed the jurors to disregard anything that the subject juror had said, but also told them that some of his comments were not correct. Riner v. Commonwealth, 268 Va. 296 , 601 S.E.2d 555, 2004 Va. LEXIS 135 (2004).

Defendant was not deprived of her constitutional right to a jury trial where she noted an appeal from a conviction in a municipal court for operating a bawdy-house, the judgment of the municipal court, rendered without a jury, was annulled, and her subsequent trial before a jury in the corporation court was in the same manner as if she had been originally indicted for the offense in that court. Gaskill v. Commonwealth, 206 Va. 486 , 144 S.E.2d 293 (1965).

Misunderstanding of jury instruction. - Trial court abused its discretion by failing either to declare a mistrial or to set aside the verdict finding defendant guilty of conspiracy to commit grand larceny of property worth $200 or more because without the slightest prompting, the jurors volunteered to the trial court that they "misread" and "obviously misunderstood" the conspiracy instruction and sought, without success, to reconsider their guilty verdict on the conspiracy charge, and it only made matters worse that the jurors were more confused than they even knew; despite the clarity of the conspiracy instruction and the trial court's efforts to reply to the jury's concerns, the jury persisted in the mistaken belief that it had convicted defendant of a conspiracy charge that required a finding that he committed grand larceny. Weeks v. Commonwealth, 55 Va. App. 157, 684 S.E.2d 829, 2009 Va. App. LEXIS 502 (2009).

The validity of the charter of the City of Danville, limiting appeals from the mayor to cases where the fine imposed exceeds $10.00 was upheld. Ragsdale v. City of Danville, 116 Va. 484 , 82 S.E. 77 (1914).

Former §§ 16-6 through 16-10 (see now §§ 16.1-132 and 16.1-136), on right of appeal from decision of trial justice, were enacted pursuant to this section of the Constitution. Commonwealth v. Bass, 113 Va. 760 , 74 S.E. 397 (1912).

Remand for new trial on issue of punishment where death sentence set aside. - Where the portion of the judgment order sentencing the defendant to death in accordance with the jury verdict had to be set aside because the death penalty had been ruled invalid, the case should have been remanded for a new trial on the issue of punishment, since it would have been sheer speculation to conclude that, if death had not been a permissible punishment, the jury would have fixed the punishment at life imprisonment. Hodges v. Commonwealth, 213 Va. 316 , 191 S.E.2d 794 (1972).

X. RIGHT TO COUNSEL.

An indigent accused is entitled to counsel if he wants one. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964).

And a free transcript. - An indigent defendant has a constitutional right to have a free transcript of the record of his trial. Thacker v. Peyton, 206 Va. 771 , 146 S.E.2d 176 (1966).

Right to have counsel a fundamental one. - While there is no specific provision in the Constitution of Virginia guaranteeing to persons accused of crime the right to have the assistance of counsel, the right is a fundamental one. It is one of the rights guaranteed to an accused under the Bill of Rights. Cottrell v. Commonwealth, 187 Va. 351 , 46 S.E.2d 413 (1948); Fitzgerald v. Smyth, 194 Va. 681 , 74 S.E.2d 810 (1953).

The right of a person accused of crime to the assistance of counsel is one of the rights guaranteed to an accused by this section. Watkins v. Commonwealth, 174 Va. 518 , 6 S.E.2d 670 (1940).

The constitutional right to counsel is satisfied if counsel is appointed in sufficient time to allow counsel to become familiar with the case, to confer with his client and to prepare for and participate in the trial. Even if a significant and unjustified delay in appointing counsel occurs, that delay does not rise to constitutional dimension if the record affirmatively shows that no prejudice resulted. Graves v. Commonwealth, 12 Va. App. 53, 402 S.E.2d 500 (1991).

Mere mention of invocation of right to counsel not due process violation. - Officer's mere mention that defendant had once invoked his right to counsel, standing alone, does not compromise a defendant's right to due process; Doyle does not impose a prima facie bar against any mention whatsoever of a defendant's right to request counsel or remain silent, but instead guards against the exploitation of that constitutional right by the prosecutor. Sluder v. Commonwealth, No. 2531-02-3, 2003 Va. App. LEXIS 605 (Ct. of Appeals Nov. 25, 2003).

Request for counsel must not be equivocal. - Based on the questioning tone in defendant's voice at the time defendant allegedly requested counsel, the content of defendant's statements, and defendant's body language, defendant's statements did not amount to an unequivocal assertion of the right to counsel; therefore, the trial court did not err in denying defendant's motion to suppress. Phillips v. Commonwealth, No. 0570-06-1, 2007 Va. App. LEXIS 102 (Mar. 13, 2007).

Defendant's motion to suppress statements made during a custodial interrogation was properly denied because defendant's statement to an officer regarding talking to defendant's lawyer was unclear and ambiguous and, thus, did not constitute an invocation of the right to counsel since the statement was made in direct response to an officer's question regarding defendant's version of events and the statement expressed defendant's desire to keep defendant's story the same until defendant spoke with an attorney, rather than delineated defendant's desire to terminate the interrogation until defendant had access to an attorney. Clinton v. Commonwealth, No. 0576-07-1, 2008 Va. App. LEXIS 286 (June 17, 2008).

Defendant did not unequivocally invoke the right to counsel by asking if defendant could have a lawyer present and then clarifying that by saying for now instead of later at the bond hearing because, on its face, defendant's question was not a request, demand, or assertion of the right to counsel. Commonwealth v. Epps, No. 2271-09-1, 2010 Va. App. LEXIS 140 (Apr. 13, 2010).

Voluntary confessions after waiver of Miranda rights. - Defendant's statement was made after he was given and voluntarily waived Miranda rights and was voluntary. The defendant agreed to let the police take his clothing for testing, never requested an attorney, never attempted to stop the interview, and never indicated he was hungry or uncomfortable in any way. Martin v. Commonwealth,, 2005 Va. App. LEXIS 395 (Oct. 11, 2005).

Waiver of Miranda rights and language. - Waiver of Miranda rights sufficient even though Spanish was not appellant's first language; he gave no indication that he did not understand the questions posed to him, and his answers in Spanish were responsive and consistent with the questions asked; spelling and grammatical errors in written apology letter do not show he did not understand Spanish or the words selected to write the letter; and signed form, written in both Spanish and English, clearly shows appellant knowingly and voluntarily waived his Miranda rights. Garcia-Tirado v. Commonwealth, No. 1982-15-4, 2017 Va. App. LEXIS 60 (Ct. of Appeals Mar. 7, 2017), aff'd, 296 Va. 15 , 817 S.E.2d 309 (2018).

Denial of defendant's request for continuance to obtain counsel. - There was no error in trial court's decision to deny defendant's request for a continuance and require him to stand trial without the assistance of counsel where the trial court reasonably concluded that defendant's failure to have counsel was the result of dilatory conduct on his part and not due to any lack of opportunity to obtain counsel. Bolden v. Commonwealth, 11 Va. App. 187, 397 S.E.2d 534 (1990), cert. denied, 502 U.S. 943, 112 S. Ct. 382, 116 L. Ed. 2d 333 (1991).

Where defendant moved for a continuance to retain counsel on the morning of trial, the motion was properly denied because: (1) defendant requested the continuance over a year after counsel had been appointed to represent defendant; (2) defendant's appointed counsel represented defendant zealously; and (3) the case had already been continued three times. Spears v. Commonwealth, No. 1692-06-3, 2007 Va. App. LEXIS 474 (Dec. 27, 2007).

The act of appointing counsel is not enough if in the circumstances the traverser is not afforded in any substantial sense professional advice and assistance. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964); Burley v. Peyton, 206 Va. 546 , 145 S.E.2d 175 (1965).

The State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions. Thacker v. Peyton, 206 Va. 771 , 146 S.E.2d 176 (1966).

Character of appointed counsel's service. - Appointed counsel's service should be of such character as to preserve the essential integrity of the proceedings as a trial in a court of justice. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964).

The right to an attorney embraces effective representation throughout all stages of the trial, and where the representation is of such low caliber as to amount to no representation, the guarantee of due process has been violated. Johns v. Smyth, 176 F. Supp. 949 (E.D. Va. 1959).

Although defendant pleaded guilty, trial counsel's failure to file an appeal, after having been instructed to do so by defendant in accordance with Va. Sup. Ct. R. 5A:6, constituted deficient performance; defendant was entitled to habeas corpus relief and a belated appeal. Miles v. Sheriff of the Va. Beach City Jail, 266 Va. 110 , 581 S.E.2d 191, 2003 Va. LEXIS 64 (2003).

Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; counsel conducted an exhaustive investigation and spoke with the witnesses upon whose affidavits petitioner relied. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; petitioner failed to state how counsel could possibly have reconciled the testimony of all the various witnesses, who had each known and spent time with petitioner at different periods of his life, and who each had different experiences with and perceptions of him. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

Failure to request curative instruction. - Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; petitioner could not demonstrate that counsel's failure to ask for a curative instruction concerning a witness's perceptions of the information the victim was attempting to convey with his facial expression was deficient performance because the testimony was excluded from evidence and to ask for a curative instruction could have emphasized the testimony. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

"Effective" assistance of counsel obviously means something other than successful assistance. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964).

State supreme court dismissed the petition for writ of habeas corpus filed by petitioner, as petitioner's claim that petitioner received ineffective assistance of counsel in petitioner's capital murder case was not shown; petitioner could not show that petitioner's claims satisfied either the "performance" or "prejudice" prong of the two-part Strickland test or petitioner's claims could have been raised and decided at trial or on direct appeal. Muhammad v. Warden of the Sussex I State Prison, 274 Va. 3 , 646 S.E.2d 182, 2007 Va. LEXIS 97 (2007), cert. denied, 128 S. Ct. 1889, 2008 U.S. LEXIS 3275 (U.S. 2008).

Failed to satisfy two-part ineffective assistance test. - State supreme court dismissed the petition for writ of habeas corpus filed by petitioner in petitioner's capital murder case, which primarily alleged ineffective assistance of trial counsel; most of petitioner's arguments satisfied neither the "performance" nor "prejudice" prongs of the two-part Strickland ineffective assistance of counsel test, other claims involved counsel's strategic decisions, and other arguments lacked merit. Jackson v. Warden of the Sussex I State Prison,, 2005 Va. LEXIS 107 (June 16, 2005).

State supreme court declined to issue the petition for writ of habeas corpus and dismissed the petition filed by petitioner in a case where petitioner pled guilty to two counts of capital murder for hire as well as other offenses, petitioner was sentenced to death, and petitioner's convictions and sentences were affirmed on direct appeal; petitioner could not maintain petitioner's claims of ineffective assistance of counsel, as petitioner could not show that but for counsel's alleged errors, petitioner would have pleaded not guilty, would have proceeded to trial, and the outcome of the proceedings would have been different. Lewis v. Warden of the Fluvanna Corr. Ctr.,, 2007 Va. LEXIS 68 (June 8, 2007).

All of petitioner's claims of ineffective assistance of counsel were deemed to be without merit for failing to satisfy either the performance and/or the prejudice prong of the two-part Strickland test and, as such, the court determined that petitioner failed to demonstrate that his counsel's performance was deficient or that there was a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. Elliott v. Warden of the Sussex I State Prison, 274 Va. 598 , 652 S.E.2d 465, 2007 Va. LEXIS 137 (2007).

Neither Strickland prong was satisfied, and an inmate was not denied the effective assistance of counsel because counsel failed to question a witness about cuts on the witness's wrist, about the word "HATE" carved in the witness's forearm, and whether the witness had ever attempted to commit suicide because of the inmate; the inmate failed to provide an affidavit from the witness to verify that the witness would have testified as the inmate contended, the witness admitted at trial to being angry with the inmate because the inmate was involved with another woman and was not sending witness money, and a letter from the witness to the inmate that contained the witness's expressions of anger was admitted into evidence. White v. Dir. of the Dep't of Corr.,, 2006 Va. LEXIS 118 (Dec. 11, 2006).

Neither Strickland prong was satisfied, and an inmate was not denied the effective assistance of counsel because counsel failed to ask a witness if the witness used drugs as counsel's trial strategy was to aggressively question the witness about the witness's identification of the inmate as the robber; the inmate proffered no evidence, other than the inmate's own testimony, to support the inmate's contention that a drug transaction occurred between the inmate and the witness, or what the witness would have said if counsel had asked the witness the question. White v. Dir. of the Dep't of Corr.,, 2006 Va. LEXIS 118 (Dec. 11, 2006).

Neither Strickland prong was satisfied, and an inmate was not denied the effective assistance of counsel because counsel failed to object or move for a mistrial when a witness stated that the inmate always had a gun and that the witness had served six years in prison because the witness would not testify against the inmate in a previous proceeding as counsel unsuccessfully objected to the witness's comment that the witness had spent six years in jail for the inmate on the grounds that it was non-responsive to a question as to why the witness was angry with the inmate, and neither statement necessarily, without further explanation, constituted evidence of prior bad acts. White v. Dir. of the Dep't of Corr.,, 2006 Va. LEXIS 118 (Dec. 11, 2006).

Petitioner did not show that trial counsel's failure to move to suppress petitioner's confession resulted in petitioner receiving ineffective assistance of counsel in petitioner's capital murder and rape case. Even had the jury not considered the confession, there was not a reasonable probability that the verdict convicting petitioner of those crimes would have been different, and, thus, petitioner did not show that trial counsel's conduct prejudiced petitioner. Johnson v. Tice, 275 Va. 18 , 654 S.E.2d 917, 2008 Va. LEXIS 15 (2008).

Inmate's petition for a writ of habeas corpus was denied because the inmate failed to satisfy the performance and the prejudice prong of the two-part Strickland test for any of the asserted failures of counsel for purposes of showing ineffective assistance of counsel. Nobrega v. Warden of the Greensville Corr. Ctr.,, 2007 Va. LEXIS 147 (Nov. 29, 2007).

Inmate's petition for a writ of habeas corpus alleging ineffective assistance of counsel was dismissed because the inmate failed to demonstrate that counsel's performance was deficient or that there was a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. Robinson v. Warden of the Nottoway Corr. Ctr.,, 2008 Va. LEXIS 141 (Oct. 2, 2008).

Inmate's petition for writ of habeas corpus was denied because as to the claim for ineffective assistance of counsel based on the failure to file any motion on the inmate's behalf, the inmate failed to offer a valid reason why he should not be bond by his representation at trial that his counsel's performance was adequate. With regard to the assertion that counsel failed to maintain sufficient communication, the inmate failed to demonstrate that counsel's performance was deficient or that there was a reasonable probability that, but for counsel's alleged errors he would have pleaded not guilty, would have proceeded to trial, and the outcome of the proceedings would have been different. VanWormer v. Warden of the Buckingham Corr. Ctr.,, 2008 Va. LEXIS 138 (Nov. 20, 2008).

Defendant could not establish essential element of prejudice in his habeas claim of ineffective assistance of counsel as, even if counsel had acted effectively in obtaining a direct appeal of defendant's conviction, there was no reasonable probability of success on appeal. The Commonwealth's evidence supported defendant's murder conviction as it showed that defendant and his brother were returning to the area of defendant's earlier fights looking for trouble; that the two acted in concert with a shared intent; and that defendant armed his brother with a deadly weapon, initiated the fight, and fired the first shot, leading his brother to fatally shoot the victim. Byrd v. Johnson, 281 Va. 671 , 708 S.E.2d 896, 2011 Va. LEXIS 96 (2011).

Defendant failed to show ineffective assistance of counsel because the introduction of evidence by defendant's expert that confirmed the existence of defendant's fingerprints, but provided the opportunity for explanation did not prejudice defendant. Bowman v. Johnson, 282 Va. 359 , 718 S.E.2d 456, 2011 Va. LEXIS 218 (2011), cert. denied, 133 S. Ct. 112, 2012 U.S. LEXIS 6649, 184 L. Ed. 2d 52 (U.S. 2012).

Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; petitioner's alleged fear that his return to county jail could result in his death within a few months from some unnamed danger did not create a valid claim of self-defense, nor was it reasonably probable that the jury would have perceived his alleged fear as mitigating evidence for his murder of two innocent people. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

Inmate's petition for a writ of habeas corpus was dismissed because, while the inmate claimed that he had received ineffective assistance of counsel, he failed to demonstrate a reasonable probability that, but for the alleged errors, the result of the proceeding would have been different; the inmate failed to provide affidavits or other evidence to show what additional trial strategies and defenses were available if counsel had met with him more often and engaged in additional trial preparation, what additional investigation of the charges would have revealed, what testimony witnesses would have provided if counsel had interviewed and subpoenaed them to testify at trial, what factors informed his decision to have a bench trial, and what additional information from his counsel would have prompted him to request a jury trial, what exculpatory evidence counsel should have introduced at trial, or what further evidence and/or defenses could have been developed if counsel had requested a continuance of the trial, and how any miscommunication about whether he wished to change his plea affected the trial court's finding of guilt on the charges. Furthermore, the victim's account of the inmate's entering his house the second time without permission, taking a blank check out of the checkbook, and leaving with it was uncontradicted, and the inmate admitted to these actions. Sigmon v. Dir. of the Dep't of Corr., 285 Va. 526 , 739 S.E.2d 905, 2013 Va. LEXIS 53 (2013).

Ineffective assistance not shown. - Order granting a writ of habeas corpus was error because, after sentencing, the rule of § 19.2-296 applied to motions to withdraw guilty pleas, and there was no evidence that the inmate was denied effective assistance of counsel relating to his motion to withdraw his Alford plea to grand larceny or that manifest injustice occurred; if the case had gone to trial, the inmate's sole defense would have been his own self-serving and uncorroborated testimony that he had been given permission to remove air conditioning units he was charged with stealing. He would have been subject to cross-examination with regard to his changing accounts of the person who had allegedly given him permission, his precipitate flight from the scene when confronted by the owner, and his two prior larceny convictions. Johnson v. Anis, 284 Va. 462 , 731 S.E.2d 914, 2012 Va. LEXIS 164 (2012).

Failure to object to prosecutorial misconduct at trial. - Neither Strickland prong was satisfied, and an inmate was not denied the effective assistance of counsel because counsel failed to object when the Commonwealth's Attorney insinuated during closing argument that the inmate's testimony was not believable because the inmate had "five felonies, three crimes of moral turpitude, and was an acknowledged drug dealer" as the Commonwealth's Attorney properly argued the facts that the inmate admitted to at trial and invited the jury to assess the inmate's credibility. White v. Dir. of the Dep't of Corr.,, 2006 Va. LEXIS 118 (Dec. 11, 2006).

Neither Strickland prong was satisfied, and an inmate was not denied the effective assistance of counsel because counsel failed, after an alleged admission that someone from the Commonwealth's attorney's office told a witness to change the witness's testimony, to raise the issue of prosecutorial misconduct before the jury; counsel cross-examined the witness about the discrepancy between the witness's preliminary hearing testimony and the witness's trial testimony, and the witness specifically denied that anyone in the Commonwealth's attorney's office had told the witness to change the witness's testimony for trial. Counsel had no basis upon which to make a claim of prosecutorial misconduct. White v. Dir. of the Dep't of Corr.,, 2006 Va. LEXIS 118 (Dec. 11, 2006).

Failure to object to restraints defendant was made to wear. - Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; trial counsel's failure to object to the restraints petitioner was made to wear or the stun belt placed on him was not deficient performance because all visible restraints were removed from petitioner prior to the jurors entering the courtroom, and petitioner wore a stun belt that was beneath his clothing. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

Access to mental health experts. - Petitioner's application for a writ of habeas corpus was dismissed because he failed to satisfy the "performance" and "prejudice" prong of the two-part test enunciated in Strickland; petitioner was entitled to, and received, access to competent mental health experts to conduct an appropriate examination and assist in evaluation, preparation, and presentation of his defense. Morva v. Warden of the Sussex I State Prison, 285 Va. 511 , 741 S.E.2d 781, 2013 Va. LEXIS 43 (2013).

Appointed counsel must have reasonable opportunity to prepare for his task of defense. Whitley v. Cunningham, 205 Va. 251 , 135 S.E.2d 823 (1964).

Conflict of interest claim, determined as one alleging the ineffective assistance of counsel, could not be raised on direct appeal, but instead had to raised in a habeas proceeding, as such a proceeding afforded both sides an opportunity to develop fully the factual and legal bases of their positions with respect to a claim of ineffective assistance of counsel. Slayton v. Commonwealth, No. 0441-06-2, 2007 Va. App. LEXIS 180 (May 1, 2007).

Appointment of counsel 25 days after arrest was not denial of right to counsel. - The failure of the trial court to appoint counsel for the appellant until 25 days after his arrest, in violation of the requirements of § 19.2-158, was not a denial of his constitutional right to counsel warranting a reversal of his conviction for distribution of cocaine. Graves v. Commonwealth, 12 Va. App. 53, 402 S.E.2d 500 (1991).

Imprisonment fifty miles from attorneys held not to deny effective representation. - Defendant was not deprived of effective representation merely because he was, during the preparation of his case, incarcerated under a previous conviction in a prison 50 miles from the residence of his court-appointed attorneys and from the place of his trial. Various steps were taken to assure full opportunity for conference with the attorneys. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Allowance of belated appeal due to counsel's failure to file appeal. - Inmate filed a habeas petition under subsection B of § 8.01-654 , alleging that his counsel was ineffective for failing to file a timely appeal. The fact that the habeas court granted the inmate leave to file a belated appeal did not oblige that court to dismiss the other claims without prejudice, as it determined that they were procedurally deficient or lacked merit. Davis v. Johnson, 274 Va. 649 , 652 S.E.2d 114, 2007 Va. LEXIS 126 (2007).

Right of defense includes aid of counsel in perfecting an appeal. Thacker v. Peyton, 206 Va. 771 , 146 S.E.2d 176 (1966).

Failure to appoint counsel to assist an indigent defendant in making an appeal from a conviction is a denial of equal protection and due process guaranteed to him under the federal Constitution and the Virginia Bill of Rights. Cabaniss v. Cunningham, 206 Va. 330 , 143 S.E.2d 911 (1965).

Allowing accused to represent himself. - This section does not require that the accused, the court, and the attorney for the Commonwealth all concur in allowing the accused to represent himself. Coleman v. Smyth, 166 F. Supp. 934 (E.D. Va.), appeal dismissed, 260 F.2d 518 (4th Cir. 1958), cert. denied, 359 U.S. 946, 79 S. Ct. 726, 3 L. Ed. 2d 679 (1959).

Absence of counsel at preparatory steps does not violate section. - The denial of the right to have counsel present at preparatory steps, such as the taking or analyzing of a blood sample, does not violate this section; such preparatory steps are not critical steps, since there is minimal risk that absence of counsel for the accused at such stages might derogate from his right to a fair trial. Law v. City of Danville, 212 Va. 702 , 187 S.E.2d 197 (1972).

Defendant's due process right to a fair trial was not violated when a DNA sample was taken without the presence of his counsel. When the law-enforcement officers obtained the sample, they were merely gathering evidence during a preparatory step that was not critical to defendant's due process right to a fair trial. Wilson v. Commonwealth, No. 1097-05-1, 2006 Va. App. LEXIS 243 (May 30, 2006).

Denial of the right to consult with counsel before an accused decides whether to take a blood test does not impair an accused's right to a trial "by the law of the land" guaranteed by this section. Law v. City of Danville, 212 Va. 702 , 187 S.E.2d 197 (1972).

Consultation with counsel as condition to taking blood test. - The blood test prescribed by former § 18.1-55.1 (now § 18.2-268.1 et seq.) was a part of a civil and administrative proceeding and defendant had no right to condition his taking the test upon his ability first to consult with counsel. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969).

For the Supreme Court to uphold the contention of defendant that his right to consult counsel before refusing or taking the blood test is a constitutional right, would virtually nullify the Implied Consent Law. Deaner v. Commonwealth, 210 Va. 285 , 170 S.E.2d 199 (1969).

Representation by counsel in juvenile court proceeding is not required by this section. Cradle v. Peyton, 208 Va. 243 , 156 S.E.2d 874 (1967), cert. denied, 392 U.S. 945, 88 S. Ct. 2296, 20 L. Ed. 2d 1407 (1968).

The General Assembly's practical construction of this section, by continuing the statutory permission for the representation of juveniles by a parent or guardian or by a probation officer, confirms the absence of any intent to require counsel in juvenile court proceedings. Cradle v. Peyton, 208 Va. 243 , 156 S.E.2d 874 (1967), cert. denied, 392 U.S. 945, 88 S. Ct. 2296, 20 L. Ed. 2d 1407 (1968).

But juvenile must be represented by guardian ad litem. - The failure of the juvenile court to appoint a guardian ad litem to represent the interests of a juvenile was a violation of the mandatory provisions of former § 16.1-173 [see now § 16.1-266], and a denial of due process guaranteed to him under this section. A preliminary hearing in the juvenile court was jurisdictional and not procedural, and failure of the juvenile court to comply with applicable provisions of the juvenile and domestic relations court law rendered subsequent proceedings in the criminal court void. Peyton v. French, 207 Va. 73 , 147 S.E.2d 739 (1966); Gregory v. Peyton, 208 Va. 157 , 156 S.E.2d 624 (1967).

Violation of right to counsel not shown. - State supreme court dismissed the petition for writ of habeas corpus filed by petitioner because petitioner did not show, among other claims that petitioner made, that petitioner was deprived of petitioner's Sixth Amendment right to counsel at trial; petitioner's claim that the trial court erred because it failed to adequately explain the limitations it was imposing on petitioner's access to "standby counsel," was raised in the trial court and on direct appeal from petitioner's criminal conviction, and other claims alleged by petitioner were either raised and decided or were procedurally defaulted because they could have been raised and decided. Muhammad v. Warden of the Sussex I State Prison, 274 Va. 3 , 646 S.E.2d 182, 2007 Va. LEXIS 97 (2007), cert. denied, 128 S. Ct. 1889, 2008 U.S. LEXIS 3275 (U.S. 2008).

Conducting an annual assessment hearing under § 37.2-910 of the Virginia Sexually Violent Predator Act, § 37.2-900 et seq., by video conference did not violate respondent's rights to counsel and to due process; as he was able to participate in the hearing and confer with his counsel, he was not prejudiced by the trial court's denial of his request to attend the hearing in person. Shellman v. Commonwealth, 284 Va. 711 , 733 S.E.2d 242, 2012 Va. LEXIS 197 (2012).

CIRCUIT COURT OPINIONS

Effect of double jeopardy clause. - Trial court denied defendant's motion to dismiss, as the county juvenile court's dismissal of the contributing to the delinquency of a minor charge filed against him, which was done without explanation, did not mean that the county juvenile court found that he did not have sexual intercourse with the 14-year-old victim; as a result, defendant was not entitled to have the felony charge filed against him of carnal knowledge dismissed, as the prosecution of him on that charge did not violate double jeopardy principals since he was not being tried in the trial court on the same charge as the county juvenile court dismissed. Commonwealth v. Hopkinson, 67 Va. Cir. 520, 2004 Va. Cir. LEXIS 362 (Loudoun County July 19, 2004).

Jurisdiction. - Because a wife was acquitted of criminal contempt, she could not be retried for the same offense; therefore, because the husband's appeal was barred by U.S. Const., Amends. V and XIV, and Va. Const., Art. I, § 8, the circuit court had no jurisdiction to entertain the appeal. Commonwealth v. Shook, 83 Va. Cir. 85, 2011 Va. Cir. LEXIS 70 (Roanoke June 6, 2011).

Collateral estoppel. - Commonwealth was not collaterally estopped from pursuing a conviction against defendant for possession of a weapon as a convicted felon because he failed to prove there were no other issues on which a rational jury could have grounded its verdict; the jury could have found that although defendant was present during the encounter and possessed a firearm, the Commonwealth failed to prove beyond a reasonable doubt one or more of the elements of robbery. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Double jeopardy. - Although the Firearm Possession Statute prohibits felons from possessing actual firearms, a witness observing a weapon, combined with an indication that the firearm might be used, can be sufficient to prove that a defendant possessed an actual firearm; the Firearm Use Statute, by contrast, only requires that the victim reasonably believed that the defendant had an actual firearm while committing the felony. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Defendant's conviction for possessing a firearm as a convicted felon did not invoke double jeopardy because in contrast to using a firearm to commit a felony, of which he was acquitted, his possession conviction was based on the fact that there was sufficient evidence he possessed a firearm; the fact that similar evidence was used to prove the two crimes was not unique, and the fact that evidence for both charges consisted of witness testimony did not invoke Double Jeopardy Clause concerns. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Conviction under the Firearm Use Statute requires that the Commonwealth prove the defendant committed one of the listed felonies, and a conviction for possession of a firearm by a felon does not require that a felony be committed while possessing the firearm but that the defendant be a convicted felon; although a defendant acquitted of an underlying felony cannot be convicted of using a firearm in the commission of a felony he may nevertheless be convicted under the Firearm Possession Statute. Commonwealth v. Trace, 99 Va. Cir. 176, 2018 Va. Cir. LEXIS 70 (Norfolk May 10, 2018).

Defendant's motion to dismiss the charges against him based on double jeopardy was denied as the court found manifest necessity to discharge the jury because defense counsel's comment that defendant had served eight months in jail was irrelevant to a determination of his guilt or innocence; the comment could appeal to the sympathy of the jury - a presumed innocent defendant already behind bars - or to the passion of the jury, suggesting defendant was being held based upon a fabrication by the victim; it could encourage an acquittal irrespective of the evidence and permit the jury to impose a sentence less than the statutory minimum, which it lacked the authority to do, by finding defendant not guilty; and it could deny him a fair trial. Commonwealth v. Taylor, 100 Va. Cir. 258, 2018 Va. Cir. LEXIS 618 (Chesterfield County Oct. 29, 2018).

Double jeopardy not applicable. - Sixty-day administrative license suspension requirement in § 46.2-391.2 is civil, and not criminal, like its seven-day counterpart, and a subsequent driving under the influence (DUI) prosecution thus does not violate double jeopardy or § 19.2-294. Accordingly, such a suspension did not bar a DUI prosecution under § 18.2-266. Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

State prosecution was not barred by § 19.2-294 on the basis of a federal prosecution because there was no showing that the acts for which defendant was charged, producing child pornography, also constituted a violation of a federal statute that prohibited possession of child pornography transported in interstate commerce; defendant was charged federally with possessing child pornography that was transported in interstate commerce, but in the state case, defendant was charged with producing or creating child pornography images on a different date. Although he may have victimized the same child on more than one of these various occasions, the specific acts on which each prosecution was based were different in terms of when they occurred, as well as in the nature of the acts themselves. Commonwealth v. Allen,, 2007 Va. Cir. LEXIS 100 (Fairfax County May 3, 2007).

Double jeopardy was not implicated and reprosecution was allowed after a mistrial because there was no reasonable alternative to mistrial and the ends of public justice would have been defeated in the absence thereof where a fingerprint match was found after both parties had represented to the jury that no fingerprint evidence existed. Commonwealth v. Davis, 79 Va. Cir. 526, 2009 Va. Cir. LEXIS 199 (Norfolk Nov. 20, 2009).

Double jeopardy doctrine did not prevent a new trial where the failure to instruct the jury as to mes rea under subsection B of § 46.2-105.2 was a procedural ground unrelated to defendant's factual guilt or innocence. Commonwealth v. Davis, 101 Va. Cir. 71, 2019 Va. Cir. LEXIS 4 (Fairfax County Jan. 22, 2019).

Making and storing hazardous materials. - Double jeopardy pursuant to Va. Const., Art. I, § 8, U.S. Const., amend. V, or § 19.2-294 did not bar defendant's felony prosecution for charges stemming from the making and storing of hazardous materials for the purpose of manufacturing fireworks, violations of §§ 18.2-85 and 10.1-1455, after he pleaded guilty to violations of Norfolk, Va. City Code §§ 17.1-43 and 17.1-44(25), because each of the four statutes required different elements of proof. Commonwealth v. Saunders, 78 Va. Cir. 345, 2009 Va. Cir. LEXIS 173 (Norfolk May 27, 2009).

Prosecutorial discretion. - Defendant's motion to dismiss an indictment charging him with false pretense was denied because the facts and circumstances did not rise to a level that would support the overriding of prosecutorial discretion in bringing the false pretense charge; the false pretense charge did not increase the risk to defendant, and it was a different charge than the forgery and uttering charges that were previously brought against defendant and were dismissed. Commonwealth v. Gomez, 75 Va. Cir. 151, 2008 Va. Cir. LEXIS 30 (Fairfax County 2008).

Defendant was not entitled to dismissal or in the alternative a bench trial because the Commonwealth of Virginia's Attorney possessed the authority and discretion to prosecute the offense with which defendant was charged and the constitutional right to require a jury. Therefore, the court was without authority to interfere with the election of the Commonwealth's Attorney to prosecute the cause and to do so with resort to a jury. Commonwealth v. Bloom,, 2020 Va. Cir. LEXIS 471 (Fairfax County Nov. 24, 2020).

No relinquishment of constitutional right to speedy trial. - Defendant's right to a speedy trial under the Sixth Amendment and this section was violated where 423 days elapsed between his arrest and his motion to dismiss the charges, defendant's assertion of his right to a speedy trial was timely and repeatedly made, the delay was excessive, the delay was justified by no constitutionally sufficient reason, and defendant suffered prejudice and the court noted that there was no COVID exception to the Constitution of the U.S. or Virginia. Commonwealth v. Murphy,, 2021 Va. Cir. LEXIS 42 (Chesterfield County Mar. 1, 2021).

Court did not err in denying the Commonwealth's motions to reconsider as the court found no affirmative act by defendant relinquishing his constitutional right to a speedy trial; defendant's acquiescence in the continuance, if any, was mere acknowledgement of the fact that the court was, at that time, prohibited from conducting jury trials due to the ongoing COVID 19 Pandemic, and defense counsel's endorsement of the order was not the same as defendant being a proponent of the motion to continue; and the Commonwealth's argument that defendant's right to a constitutional speedy trial could not be violated if his right to a statutory speedy trial was not also violated had no basis in the law. Commonwealth v. Murphy,, 2021 Va. Cir. LEXIS 45 (Chesterfield County Mar. 19, 2021).

Right to speedy trial not denied. - When the defendant was first indicted by a grand jury for capital murder and robbery, the defendant was found to be mentally incompetent and confined to a state hospital; accordingly the indictment against the defendant was dismissed. However, the trial court found that a later indictment against the defendant for the same crimes that was obtained upon the defendant's release from the hospital could not be dismissed on the ground of the passage of time as the defendant alleged. Commonwealth v. Sink, 61 Va. Cir. 279, 2003 Va. Cir. LEXIS 18 (Portsmouth 2003).

Inmate's speedy trial rights were not violated when the trial court did not take action regarding his requests for disposition of the charge that caused a violation of his probation resulting in a detainer on his record as the Interstate Agreement on Detainers, § 53.1-210 , did not apply to a detainer based on a probation violation and the trial court was not required to dispose of the probation violation until the inmate's federal imprisonment was complete. Offer v. Commonwealth, 63 Va. Cir. 380, 2003 Va. Cir. LEXIS 213 (Fairfax County 2003).

Denial of Sixth Amendment speedy trial right was not available in a claim of pre-indictment delay; rather, pre-indictment delay involved a due process right. However, a due process violation claim was not supported by evidence that the Commonwealth intentionally delayed an indictment or that defendant was thereby prejudiced; the fact that defendant's high-quality counsel was unable to consolidate the indictment's charges with other charges for a favorable sentencing consideration created no substantive or procedural right. Commonwealth v. Boone, 73 Va. Cir. 277, 2007 Va. Cir. LEXIS 232 (Portsmouth Apr. 26, 2007).

Defendant's motion to dismiss an alleged violation of § 18.2-51 on speedy trial grounds was denied, as: (1) he was more responsible than the Commonwealth for the delay in bringing him to trial, due to his deportation; and (2) he failed to advise the Commonwealth of his whereabouts after illegally entering the country and returning to Virginia. Commonwealth v. Manzanares,, 2008 Va. Cir. LEXIS 34 (Fairfax County Mar. 26, 2008).

Time period during which the circuit court was not conducting criminal jury or bench trials due to the COVID-19 emergency did not violate defendant's constitutional speedy trial rights because the length of delay was for a limited duration, the coronavirus pandemic was the reason for delay, defendant asserted defendant's rights, and defendant was not prejudiced by the delay. Commonwealth v. Vila, 104 Va. Cir. 389, 2020 Va. Cir. LEXIS 39 (Fairfax County Mar. 30, 2020).

Defendant's speedy trial rights were not violated because the Commonwealth of Virginia's reason for a delay was excusable and not to be attributed to the Commonwealth as personal service was obtained upon a material witness who did not appear. Commonwealth v. Leftwich, 150 Va. Cir. 66, 2020 Va. Cir. LEXIS 51 (Roanoke County Apr. 14, 2020).

Supreme Court of Virginia orders declaring and extending a judicial emergency due to a pandemic provided a basis for tolling the speedy trial provisions because the pandemic was a natural disaster that required a continuance of a limited duration; defendant asserted defendant's rights and noted defendant's objection to any delay; while defendant was prejudiced by continued incarceration, no evidence was adduced regarding prejudice; and the safety of defendant, witnesses, attorneys, and court personnel would have been placed at risk. Commonwealth v. Leftwich, 150 Va. Cir. 66, 2020 Va. Cir. LEXIS 51 (Roanoke County Apr. 14, 2020).

Right to impartial jury. - Defendant's claim that if the Commonwealth was allowed to introduce defendant's prior larceny convictions at defendant's trial for violating §§ 18.2-103 and 18.2-104 in a non-bifurcated guilt phase, defendant's constitutional right to an impartial jury under the Sixth Amendment and Va. Const., Art. I, § 8 would be abridged was not supported and was rejected. Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

Right to jury trial does not extend to petty criminal offenses. - There exists a category of petty crimes or offenses that is not subject to the Sixth Amendment jury trial provision; the United States Supreme Court later defined this category of petty offenses or crimes as being those where the maximum authorized imprisonment does not exceed six months. Commonwealth v. Grimes, 63 Va. Cir. 332, 2003 Va. Cir. LEXIS 336 (Pittsylvania County 2003).

Petty criminal offenses may be tried without a jury - Within the context of criminal contempt of court, the United States Supreme Court has declared that petty contempt like other petty criminal offenses may be tried without a jury and that contempt of court is a petty offense when the penalty actually imposed does not exceed six months or a longer penalty has not been expressly authorized by statute; thus, when a court exercises its innate authority to punish for contempt of court, the dispositive question as to whether the right to a jury trial exists is answered by the actual sentence imposed. Commonwealth v. Grimes, 63 Va. Cir. 332, 2003 Va. Cir. LEXIS 336 (Pittsylvania County 2003).

Discretion of trial court in voir dire. - Circuit court has the discretion, by precedent, statute and its inherent Constitutional authority to address the applicable penalty range to the jury panel in voir dire to ensure jurors stand indifferent in the cause; the discretion is not circumscribed except by the abuse of discretion standard, and in those areas where voir dire by the parties is not explicitly delimited by precedent, the circuit court retains wide latitude to act discretionarily in a manner that ensures justice. Commonwealth v. Barela, 96 Va. Cir. 404, 2017 Va. Cir. LEXIS 177 (Fairfax County Sept. 28, 2017).

Circuit court's duties encompass ensuring that the jury impaneled be free of such bias that would prevent a full and proper consideration of the sentencing range, and it is relevant to determine whether jurors are biased against the imposition of a mandatory minimum sentence which could cause a mistrial; also relevant is the issue of whether a jury would as a result of the presence of a mandatory minimum be predisposed to impose a greater sentence than the minimum before hearing any evidence. Commonwealth v. Barela, 96 Va. Cir. 404, 2017 Va. Cir. LEXIS 177 (Fairfax County Sept. 28, 2017).

Right of an accused to call for evidence. - Trial court found that nothing in two sets of psychiatric records over which the trial court conducted in camera review called into question the credibility of the complaining witness, and, thus, the psychiatric records were not material and would be sealed in a case where defendant was indicted by a grand jury for the aggravated battery and object sexual penetration of defendant's stepsister; while defendant had state and federal constitutional rights permitting defendant to call for the production of evidence in his favor and public policy concerns dictated that courts in criminal cases consider the impact on witnesses of releasing the records of healthcare providers who under civil law were protected by privileges from releasing such material, the trial court concluded after in camera review that the information in the records sought was not material because it did not call into question the alleged victim's assertion of abuse or the alleged victim's credibility. Commonwealth v. Arrington, 72 Va. Cir. 514, 2007 Va. Cir. LEXIS 8 (Portsmouth 2007).

Right to "call for evidence" under Va. Const., Art. I, § 8, is not the equivalent of unfettered discovery from the Commonwealth or its agents under Va. Sup. Ct. R. 3A:11, nor does the free exercise of the right demand the production of writings or things from third parties beyond the scope of Va. Sup. Ct. R. 3A:12(b). Commonwealth v. Hoard, 82 Va. Cir. 335, 2011 Va. Cir. LEXIS 40 (Augusta County Mar. 9, 2011).

Defendant could not subpoena a jail's inmate records because (1) Va. Sup. Ct. R. 3A:12(b) did not permit subpoenas directed to a party, (2) the county sheriff's department was responsible for both the jail's administrative operation and investigating defendant's case, (3) the sheriff's department's investigatory responsibility defined the department as a party to the case, and, (4) as parties, those who were responsible for operating the jail could not be subject to a subpoena, although discovery was potentially available pursuant to Va. Sup. Ct. R. 3A:11(b). Commonwealth v. Bowman, 85 Va. Cir. 199, 2012 Va. Cir. LEXIS 159 (Loudoun County Aug. 13, 2012).

In a murder case, defendant's Brady claim failed because his right to call for evidence in his favor included the right to interview material witnesses, and defense counsel's decision not to contact the family of the victim about their potential wrongful death suit against defendant was a tactical decision not fueled by any improper attempts by the Commonwealth to conceal or obfuscate. Commonwealth v. Huguely, 85 Va. Cir. 223, 2012 Va. Cir. LEXIS 173 (Charlottesville Aug. 15, 2012).

Right to exculpatory evidence. - In response to defendant's motion for discovery and inspection of exculpatory evidence, the Commonwealth was ordered to divulge all evidence of criminal convictions of its witnesses by the date specified by the court, because defendant has a constitutional right to call for evidence in his favor and have time to prepare for trial. Commonwealth v. Goble, 82 Va. Cir. 603, 2009 Va. Cir. LEXIS 272 (Augusta County Apr. 16, 2009).

No violation of confrontation right found. - Rights of confrontation under the Sixth Amendment and under Va. Const., Art. I, § 8, as explained in Crawford v. Washington, only apply when a court exercises its criminal jurisdiction. They do not apply when the court exercises its civil jurisdiction, and they do not apply when the court exercises its contempt jurisdiction. Commonwealth v. Tanner, 73 Va. Cir. 434, 2007 Va. Cir. LEXIS 214 (Roanoke County July 17, 2007).

Notice in traffic light photo-monitoring system. - Notice provided to defendant was constitutionally sufficient and the means by which defendant received notice was also constitutionally sufficient where she received notice through the first notification mechanism authorized by statute, that notice provided defendant detailed information as to both the nature of the violation and the procedural options available to her to contest the violation, and defendant then availed herself of one of these options, specifically to contest the violation at an evidentiary hearing, both in the general district court and, subsequently, in the circuit court. City of Fairfax v. Cooper, 99 Va. Cir. 334, 2018 Va. Cir. LEXIS 120 (Fairfax County July 10, 2018).

Presumptions in driving while intoxicated cases. - Presumptions of §§ 18.2-266 and 18.2-269 are permissive inferences because they do not remove the element of alcohol content from the case and do not shift the burden of persuasion to the defendant; thus, they do not violate due process or the right to confrontation. Furthermore, § 18.2-270, which relies on a violation of § 18.2-266, is not unconstitutional, as the burden of persuasion is with the Commonwealth at all times. Commonwealth v. Stump, 69 Va. Cir. 433, 2006 Va. Cir. LEXIS 95 (Roanoke 2006).

Laboratory reports. - Trial court overruled defendant's objection to the admission of a laboratory certificate of analysis stating that the substance defendant possessed was cocaine, as statutory law allowed for the admission of such evidence, and gave the accused the right to summon the person performing the chemical analysis and examine him as an adverse witness; as a result, admission of that evidence was recognized as an exception to the hearsay rule and defendant's confrontation clause rights were not violated since the statute gave him a right to confront the person who authored the certificate. Commonwealth v. Williams, 69 Va. Cir. 277, 2005 Va. Cir. LEXIS 322 (Charlottesville 2005).

Brady violation entitled defendant to new trial. - Defendant was granted a new trial with regard to two murder convictions and use of a firearm conviction since a Brady violation occurred as a result of the Commonwealth not disclosing various benefits offered to its key witness, defendant's long-time female companion, which were material to the case and deprived the jury of evidence necessary to evaluate her credibility. Commonwealth v. Long, 82 Va. Cir. 544, 2007 Va. Cir. LEXIS 65 (Orange County 2007).

No private civil right of action. - This section is self-executing, but does not appear to apply in a civil context and, therefore, does not provide a private civil right of action except for deprivation of rights of an accused caused in the setting of a criminal prosecution. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004); Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

New and distinct crime exception to exclusionary rule. - Although off-duty police officer violated the Fourth Amendment and Va. Const., Art. I, § 8, in ordering defendant to stop, defendant committed a new and distinct crime while in custody in signing a uniform summons with a false name, thereby purging the taint of the initial police misconduct, and defendant's motion to suppress the summons and his statements to the officer was denied. Commonwealth v. Cooper, 56 Va. Cir. 501, 2001 Va. Cir. LEXIS 491 (Charlottesville 2001).

Civil proceedings. - Fifth Amendment privilege against self-incrimination in a divorce proceeding applied where a party was asked to supply information that could furnish a link in a chain of evidence that could lead to prosecution. Domestici v. Domestici, 62 Va. Cir. 13, 2003 Va. Cir. LEXIS 82 (Fairfax County 2003).

Miranda rights. - Because defendant was not in custody when he invited plain clothes officers into his residence to talk, they were not required to read him the Miranda rights; the conversation was investigatory, defendant was not under arrest and he was not handcuffed. Commonwealth v. Martin, 66 Va. Cir. 300, 2004 Va. Cir. LEXIS 347 (Norfolk Dec. 17, 2004).

Motion to suppress defendant's statements to police was denied; despite defendant's invocation of his right to counsel, he reinitiated conversation with the detective and voluntarily waived his Miranda rights. Commonwealth v. Hoa Lam,, 2006 Va. Cir. LEXIS 26 (Fairfax County Jan. 5, 2006).

Miranda warnings required. - Because defendants were handcuffed for over an hour and not free to leave in spite of a statement by the police to the contrary, they were entitled to Miranda warnings about their right to remain silent and the right to counsel; because the warnings were not given, defendants' motions to suppress were granted. Commonwealth v. Hughes, 69 Va. Cir. 482, 2006 Va. Cir. LEXIS 85 (Martinsville 2006).

Defendant's statement to a law-enforcement officer was inadmissible on the ground that it was obtained in contravention of Miranda, where defendant was in custody and had not been informed of defendant's Miranda rights, because it was entirely foreseeable, when the officer went to defendant's jail cell and informed defendant of a rape accusation against defendant, defendant would have made some kind of statement in light of defendant's young age and the opprobrious nature of the allegation. Commonwealth v. Harris, 82 Va. Cir. 196, 2011 Va. Cir. LEXIS 199 (Martinsville Feb. 4, 2011).

Pre-Miranda statements suppressed. - Suppression of the pre-Miranda statements was required because the investigator's interview of defendant constituted interrogation; the statements defendant sought to have suppressed were preceded by the investigators' repeated inquiry not only as to the name of defendant's alleged accomplice, but also as to defendant's role in the robbery. Commonwealth v. Bowman,, 2007 Va. Cir. LEXIS 47 (Fairfax County Mar. 2, 2007).

Post-Miranda statements inadmissible when made after use of two-step strategy. - Suppression of the post-Miranda statements was necessary because the investigators conducted a two-step strategy that eventuated into a restatement of the inculpatory statements made in the pre-Miranda phase as well as further admissions from defendant. A reasonable police officer would have understood that an interview regarding police cooperation and identity of an accomplice would elicit incriminating statements. Commonwealth v. Bowman,, 2007 Va. Cir. LEXIS 47 (Fairfax County Mar. 2, 2007).

Violation not shown. - Defendant's motion to suppress statements was partially denied because defendant's statements made during the interrogation were made freely and voluntarily since no specific promises of leniency were made, the interrogation was not continuous, and there was insufficient evidence of coercion. Commonwealth v. Andrews,, 2007 Va. Cir. LEXIS 260 (Prince William County June 1, 2007).

Privilege against self-incrimination. - Because the statute of limitations in § 19.2-8 did not apply to a husband's alleged adulterous affairs occurring more than a year prior to his deposition, the husband could not invoke the privilege against self-incrimination found in U.S. Const., amend. V, and Va. Const., Art. I, § 8. Brubach v. Hystad, 68 Va. Cir. 181, 2005 Va. Cir. LEXIS 68 (Greene County 2005).

In a divorce action, issuance of a court order under Va. Sup. Ct. R. 4:9 granting the wife and a computer company "authority" under § 18.2-152.5 to access the husband's password protected files to determine if he committed acts of sodomy did not require the husband to perform a testimonial act and thus was not barred by his assertion of a self-incrimination privilege under Va. Const., Art. 1, § 8. Albertson v. Albertson, 73 Va. Cir. 94, 2007 Va. Cir. LEXIS 132 (Fairfax County 2007).

There was no constitutional violation when the Commonwealth of Virginia alleged that a probationer was dishonest in disclosures to a sex offender treatment provider and to a probation officer and that the probationer made disclosures of current criminal conduct in treatment because the probationer never claimed the privilege against self-incrimination, the term of probation that the probationer undergo sex offender treatment was not unreasonable, and the right against self-incrimination was not a shield for protection from alleged dishonesty. Commonwealth v. Rhodes, 100 Va. Cir. 101, 2018 Va. Cir. LEXIS 331 (Fairfax County Sept. 27, 2018).

Statements made in the complaint, which was signed only by counsel and not by the husband, could not constitute a waiver of the privilege against self-incrimination because the husband did not make those statements, and his answer admitting that certain language existed in the complaint did not rise to the level of an intentional relinquishment of his privilege against self-incrimination. B.B. v. TB, 101 Va. Cir. 190, 2019 Va. Cir. LEXIS 28 (Fairfax County Feb. 12, 2019).

Any answer by the husband to the interrogatory or request for admission that disclosed misdemeanor acts of adultery in Virginia more than one year prior to the date of the discovery response could not be used as a basis for a criminal prosecution, and thus he could not claim a privilege against self-incrimination with respect to any of those acts. B.B. v. TB, 101 Va. Cir. 190, 2019 Va. Cir. LEXIS 28 (Fairfax County Feb. 12, 2019).

Privilege against self-incrimination is applicable in Workers' Compensation case. - In a workers' compensation case, a court denied an employer's motion to compel an employee to answer its interrogatory regarding his current legal status and residency status in the United States because, while the employee's legal status was highly relevant, compelling him to answer could necessarily require him to make an incriminating testimonial communication depending on his legal status. Xinic v. Quick, 69 Va. Cir. 295, 2005 Va. Cir. LEXIS 266 (Fairfax County 2005).

Voluntary writing or receiving of e-mail messages, and the voluntary viewing of any image, either as an e-mail attachment or as an image on an internet web page containing pornographic images of children, was not "compelled" for purposes of privilege against self-incrimination provided by Va. Const., Art. 1, § 8. Albertson v. Albertson, 73 Va. Cir. 94, 2007 Va. Cir. LEXIS 132 (Fairfax County 2007).

No risk of prosecution. - Plaintiff was ordered to answer the interrogatory related to adultery; as the statute of limitations for a misdemeanor was one year, plaintiff faced no risk of prosecution. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).

Because there was no statute of limitations for a felony, if plaintiff had sexual intercourse with his daughter or granddaughter, or his mother, he could invoke his right under the Fifth Amendment as such sexual intercourse was a felony. Zakia v. Zakia, 104 Va. Cir. 168, 2020 Va. Cir. LEXIS 7 (Fairfax County Jan. 24, 2020).

Right to counsel. - Court denied petitioner's request for a writ of habeas corpus based on his claim of ineffective assistance of counsel on appeal due to his counsel's failure to assign cross-error in the Supreme Court of Virginia to the Court of Appeals' failure to address three evidentiary issues on which it had granted petitioner's appeal but which the Court of Appeals did not address in reversing his conviction, because it was reasonable for petitioner's counsel to have concluded that it was not necessary to bring the undecided assignments of error before the Supreme Court where the Court of Appeals never rendered any decision on the three issues and his counsel was not expected to anticipate the Supreme Court's change from its prior policy of remanding cases for further consideration of the unresolved issues. Hudson v. Dir. of the Dep't of Corr., 67 Va. Cir. 319, 2005 Va. Cir. LEXIS 147 (Clarke County May 16, 2005).

Where defendant stated during interrogation that defendant wanted to speak with a lawyer and the detectives terminated the interrogation, but a detective went back into the room and questioned defendant, defendant's motion to suppress statements was partially granted because defendant's statements made after defendant invoked the right to counsel were inadmissible since there was insufficient evidence that defendant reinitiated the interrogation. Commonwealth v. Andrews,, 2007 Va. Cir. LEXIS 260 (Prince William County June 1, 2007).

Ineffective assistance of counsel not shown. - Because a transcript of an inmate's Alford plea hearing showed that the inmate was fully aware of the nature and consequences of the plea and attested to the adequacy of counsel, and because the inmate did not state a valid reason to controvert the plea colloquy, the inmate was not entitled to habeas corpus relief based on ineffective assistance of counsel. Turmur v. Johnson,, 2005 Va. Cir. LEXIS 212 (Fairfax County Sept. 16, 2005).

Because an inmate did not alleged facts to support a contention that, but for counsel's alleged errors, the inmate would not have pleaded guilty, and because the inmate did not identify any investigation that the attorney should have conducted, the inmate was not denied the effective assistance of counsel. Martinez v. Johnson,, 2006 Va. Cir. LEXIS 110 (Fairfax County May 19, 2006).

Habeas petitioner's appellate counsel was not required to assert every non-frivolous claim on appeal, and his alleged failure to communicate with petitioner did not render his representation ineffective, as there was no statutory or constitutional right to communicate with appellate counsel. Curtis v. Coffeewood Corr. Ctr., 72 Va. Cir. 309, 2006 Va. Cir. LEXIS 267 (Fairfax County 2006).

Petitioner failed to show ineffective assistance of counsel because, counsel's failure to file a motion to change venue did not entitle petitioner to habeas corpus relief as petitioner entered a voluntary and intelligent plea of guilty that waived all defenses that were not jurisdictional; no facts indicated a different outcome would have occurred as no evidence existed of any prejudicial pretrial publicity. Ejjamai v. Warden,, 2008 Va. Cir. LEXIS 140 (Greene County Oct. 28, 2008).

Appellate counsel did not provide ineffective assistance since: (1) appellate counsel's failure to raise all issues was not deficient performance; (2) appellate counsel's failure to include additional exculpatory evidence with the direct appeal was not deficient performance; (3) any evidence admitted by the trial court was part of the record, and any evidence suppressed at trial would have to have been the subject of an assignment of trial court error; and (4) it was not proper for appellate counsel to include new evidence to support an insufficiency of the evidence claim on appeal. Bah v. Johnson, 79 Va. Cir. 758, 2008 Va. Cir. LEXIS 213 (Hanover County Oct. 31, 2008).

OPINIONS OF THE ATTORNEY GENERAL

Constitutionality of statute. - Acts 2013, c. 675, as codified in § 19.2-324.1, is constitutional; the enactment does not infringe upon any protection afforded by either the Fifth Amendment to the U.S. Constitution or Article I, § 8, of the Constitution of Virginia. The Constitution of Virginia expressly permits the General Assembly to legislate on matters of procedural as well as substantive law; therefore, no amendment to the Constitution of Virginia was necessary for this enactment to take effect on July 1, 2013. See opinion of Attorney General to the Honorable Scott A. Surovell, Member, House of Delegates, 13-027, 2013 Va. AG LEXIS 73 (8/23/13).

I. EXCESSIVE FINES; CRUEL AND UNUSUAL PUNISHMENT.

This section limits mode of punishment. - It has been uniformly held by the Supreme Court that the provisions of this section must be construed to impose no limitation upon the legislative right to determine and prescribe by statute the quantum of punishments deemed adequate by the legislature; that the only limitation so imposed is upon the mode of punishment, such punishments only being prohibited by this constitutional provision as were regarded as cruel and unusual when such provision was adopted in 1776, namely, such bodily punishments as involve torture or lingering death - such as are inhumane and barbarous - as, for example, punishment by the rack, by drawing and quartering, leaving the body hung in chains, or on the gibbet, exposed to public view. Hart v. Commonwealth, 131 Va. 726 , 109 S.E. 582 (1921).

Limitation upon quantum of punishment still an open question. - The question of whether the provision of the Constitution as to cruel and unusual punishment imposes a limitation upon the legislative right, not only to determine and prescribe the mode of punishments, but also upon the quantum of punishments, is still an open one in Virginia. There is great force in the view that a statute might be enacted prescribing a punishment in quantum so severe for a comparatively trivial offense that it would be so out of proportion to the crime as to shock the conscience; and such statute might possibly be held in conflict with this section of the Constitution, although the mode of punishment was not unusual. Hart v. Commonwealth, 131 Va. 726 , 109 S.E. 582 (1921).

Only excessive part of sentence is invalid. - Where the sentence imposed is in excess of that prescribed by law, that part of the sentence which is excessive is invalid. A sentence in excess of one prescribed by law is not void ab initio because of the excess, but is good insofar as the power of the court extends, and is invalid only as to the excess. Deagle v. Commonwealth, 214 Va. 304 , 199 S.E.2d 509 (1973).

Constitutionality of death penalty. - Court found no reason to depart from its prior precedent and it had already rejected defendant's arguments that the death penalty on its face and as applied violated the Sixth Amendment, the Eighth Amendment, and the Fourteenth Amendment to the United States Constitution, as well as Va. Const., Art. I, §§ 8, 9, and 11. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Death penalty not cruel and unusual. - The death penalty does not violate the proscription against cruel and unusual punishment contained in Federal and Virginia Constitutions. Gray v. Commonwealth, 233 Va. 313 , 356 S.E.2d 157, cert. denied, 484 U.S. 873, 108 S. Ct. 207, 98 L. Ed. 2d 158 (1987).

Electrocution is neither cruel nor unusual. - The punishment of death by electrocution, which is the present mode of inflicting the death penalty in Virginia, as is well settled, cannot in itself be regarded as a cruel or unusual mode of punishment. Hart v. Commonwealth, 131 Va. 726 , 109 S.E. 582 (1921).

Execution by electrocution constitutional. - Execution of prisoners by electrocution does not violate Va. Const., Art. I, §§ 9 and 11. Orbe v. Johnson, 267 Va. 560 , 601 S.E.2d 547, 2004 Va. LEXIS 53 (2004).

Lethal injection and electrocution methods for execution constitutional. - Pursuant to § 53.1-234, defendant had a choice between two methods of execution: electrocution and lethal injection; he was thus precluded from choosing a method and then complaining about its constitutionality, particularly since the constitutionality of the alternative method had been established. The Virginia Supreme Court had held that electrocution did not violate constitutional prohibition against cruel and unusual punishment, and Virginia's lethal injection protocol was materially similar to that upheld by the U.S. Supreme Court in Baze ; accordingly, the circuit court did not err in denying defendant's motion to declare the Commonwealth's lethal injection and electrocution methods for execution unconstitutional under the U.S. Const., Amend. VIII, and Va. Const., Art. I, § 9. Porter v. Commonwealth, 276 Va. 203 , 661 S.E.2d 415, 2008 Va. LEXIS 78 (2008), cert. denied, 129 S. Ct. 1999, 173 L. Ed. 2d 1097, 2009 U.S. LEXIS 3047 (U.S. 2009).

Inequality of punishment for same offense. - A verdict will not be set aside simply because others convicted of the same offense have received a lighter punishment, even if the records in the latter cases were before the court and could be looked into. Allen v. Commonwealth, 114 Va. 826 , 77 S.E. 66 (1913).

Former § 37-231, providing for sexual sterilization of certain defectives, did not violate this section. Buck v. Bell, 143 Va. 310 , 130 S.E. 516 (1925), aff'd, 274 U.S. 200, 47 S. Ct. 584, 71 L. Ed. 1000 (1927). See now § 54.1-2974 et seq.

Instances where fines adjudged reasonable. - See Fletcher v. Commonwealth, 106 Va. 840 , 56 S.E. 149 (1907); Rose v. Commonwealth, 106 Va. 850 , 56 S.E. 151 (1907).

Forfeiture of property. - The legislature has ample power to provide for the forfeiture of property employed in defiance of the laws of the State. Commonwealth v. One 1970, 2 Dr. H.T. Lincoln Auto., 212 Va. 597 , 186 S.E.2d 279 (1972).

This section and Amendment Eight to the Constitution of the United States are prohibitions against the imposition of excessive bail or fines or infliction of unusual punishment. The forfeiture of offending property does not fall within any of these categories. Commonwealth v. One 1970, 2 Dr. H.T. Lincoln Auto., 212 Va. 597 , 186 S.E.2d 279 (1972).

Taking blood samples for DNA analysis not cruel and unusual punishment. - The statutes providing for the taking of blood samples for DNA analysis from convicted felons do not violate the guarantee against cruel and unusual punishment embodied in the Constitution of Virginia in that the DNA statutes are not penal in nature. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Sentence of life imprisonment for being the principal, or a principal administrator, organizer, or leader, of a continuing criminal enterprise. - Sentence of life imprisonment for being the principal, or a principal administrator, organizer, or leader, of a continuing criminal enterprise engaged, during a one-year period, in the distribution of at least five kilograms of a mixture containing cocaine base, in violation of subsection H2 of § 18.2-248, did not amount to cruel or unusual punishment under the Virginia Constitution or U.S. Const., Amend. VIII. Dunaway v. Commonwealth, 52 Va. App. 281, 663 S.E.2d 117, 2008 Va. App. LEXIS 326 (2008).

Non-jurisdiction claims. - Use of the writ of habeas corpus to challenge non-jurisdictional claims was unknown to the drafters of the Suspension Clause, and they could not have intended to protect a convicted prisoner's ability to raise them. Brown v. Booker, 297 Va. 245 , 826 S.E.2d 304, 2019 Va. LEXIS 34 (2019).

Statutory limitation period did not operate as a suspension of the writ of habeas corpus in contravention of the Suspension Clause, and thus, petitioner's application for a writ of habeas corpus was untimely; petitioner's inability to question and present new evidence bearing on his factual guilt or innocence did not violate the Suspension Clause because he challenged only the reliability of the evidence adduced at his trial, not the subject matter jurisdiction of the sentencing court. Brown v. Booker, 297 Va. 245 , 826 S.E.2d 304, 2019 Va. LEXIS 34 (2019).

Applied in Martin v. Commonwealth, 64 Va. App. 666, 770 S.E.2d 795, 2015 Va. App. LEXIS 144 (2015).

II. EX POST FACTO LAWS.

Ex post facto laws relate to criminal proceedings which inflict punishments or forfeitures and not to a civil proceeding which affects private rights retrospectively. Commonwealth v. United Cigarette Mach. Co., 120 Va. 835 , 92 S.E. 901 (1917).

There is no express prohibition in the Virginia Constitution against a statute operating retrospectively. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D. Va. 1965).

The legislature may, in its discretion, pass retrospective or curative laws, provided they do not partake of the nature of what are technically called ex post facto laws, and do not impair the obligation of contracts, or disturb vested rights; and, provided further, they are of such nature as the legislature might have passed in the first instance to act prospectively. Whitlock v. Hawkins, 105 Va. 242 , 53 S.E. 401 (1906).

But may not divest one of vested constitutional rights. - The legislature, within certain limitations, may alter and control remedies by which litigants assert their rights in the courts, but when the litigation has proceeded to judgment or decree upon the merits of the controversy, it has passed beyond its powers. Such rights are vested and the legislature is without power to divest one of vested constitutional rights. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

For the legislature to divest one of a vested right under a decree is to deprive such person of his property without due process of law. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

Test of the validity of curative acts. - The legislature has power to enact a law validating an agreement which was unenforceable when made. The test of the validity of curative acts which operates retrospectively is the authority of the legislature originally to have conferred the power or authorized the act. Hurley v. Hurley, 110 Va. 31 , 65 S.E. 472 (1909); Commonwealth v. United Cigarette Mach. Co., 120 Va. 835 , 92 S.E. 901 (1917).

If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with prior to the statute, then it is not beyond the powers of the legislature to dispense with it by a subsequent statute. Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 (1908).

A statute that does not affect vested rights may operate retrospectively. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D. Va. 1965).

Acts 2002, c. 78, which adjusted the general situs and tax day provisions of §§ 58.1-3511 and 58.1-3515 to meet the special and non-recurring circumstances presented by the City of Clifton Forge's reversion to town status, was not an unconstitutional violation of Va. Const., Art. I, § 9, because the prohibition against ex post facto laws applies only to criminal proceedings, and the general assembly had the power to enact the statute with retroactive application as it was not arbitrary and did not disturb vested rights, impair contractual obligations, or violate due process. Alderson v. County of Alleghany, 266 Va. 333 , 585 S.E.2d 795, 2003 Va. LEXIS 83 (2003).

A party has no vested rights in matters of procedure. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D. Va. 1965).

There is a general proposition that statutes have only prospective application, but this rule is relaxed in cases of statutes which are classified as remedial or where they only affect questions of procedure. Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D. Va. 1965).

The prohibition against ex post facto laws has no application to changes that relate exclusively to the remedy or mode of procedure. Former § 53-278.1 (see now § 19.2-299), which made mandatory a procedure theretofore permissive, did not violate this section of the Constitution. McClain v. Commonwealth, 189 Va. 847 , 55 S.E.2d 49 (1949).

Former § 8-81.2 [now § 8.01-328.1 ], the Virginia "long-arm" statute, may be applied retroactively. Jackson v. National Linen Serv. Corp., 248 F. Supp. 962 (W.D. Va. 1965); Etzler v. Dille & McGuire Mfg. Co., 249 F. Supp. 1 (W.D. Va. 1965).

Not every law that alters the rules of evidence is to be deemed an ex post facto law. To be an ex post facto law it must be a law which alters the rules of evidence and requires less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. There is no such thing as a vested right in the mere rules of evidence by which admissible facts are to be established. But a statute which so changes the rules of evidence as to permit a conviction on substantive evidence less or different from that required at the time of the commission of the act on which the prosecution is founded is to that extent clearly ex post facto and of no effect. Culbertson v. Commonwealth, 137 Va. 752 , 119 S.E. 87 (1923).

Defendant's convictions for rape and forcible sodomy of defendant's teenage stepdaughter were not obtained in violation of defendant's ex post facto clause rights. Admission was proper of the testimony of the victim's mother, defendant's wife, of statements that defendant made to her and a tape recording the mother made containing defendant's incriminating statements under amendments to §§ 8.01-398 and 19.2-271.2 since the evidence did not change the quantum of proof necessary to obtain the convictions but only changed the admissibility of evidence that could be offered to obtain the convictions. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345, 2007 Va. App. LEXIS 463 (2007).

A statute retroactively affecting taxation is valid if it is not arbitrary and does not disturb vested rights, impair contractual obligations, or violate due process. Colonial Pipeline Co. v. Commonwealth, 206 Va. 517 , 145 S.E.2d 227 (1965), appeal dismissed, 384 U.S. 268, 86 S. Ct. 1476, 16 L. Ed. 2d 523 (1966).

It is debatable whether a statute enacted during the taxable year authorizing the assessment of a tax on property held by a taxpayer as of January first of that year should be classified as retroactive tax legislation. Colonial Pipeline Co. v. Commonwealth, 206 Va. 517 , 145 S.E.2d 227 (1965), appeal dismissed, 384 U.S. 268, 86 S. Ct. 1476, 16 L. Ed. 2d 523 (1966).

The application of the 1977 death penalty law to a defendant who committed his crime while the 1975 death penalty law was in effect was not a violation of the ex post facto clauses of the state and federal Constitutions, since the 1975 law was presumptively valid, in spite of decisions of the United States Supreme Court invalidating the death penalty statutes of other states, and since the changes incorporated in the 1977 law are both ameliorative and procedural. Smith v. Commonwealth, 219 Va. 455 , 248 S.E.2d 135 (1978), cert. denied, 441 U.S. 967, 99 S. Ct. 2419, 60 L. Ed. 2d 1074 (1979).

Sex offender registration. - Where defendant was convicted of rape and malicious wounding, and as part of defendant's sentence, defendant was requested to register with local law-enforcement officers as a sex offender pursuant to § 19.2-298.1 [now see § 9.1-900 et seq.], which was enacted after the offenses occurred, the trial court did not violate his federal and state constitutional rights against the imposition of an ex post facto law. Kitze v. Commonwealth, 23 Va. App. 213, 475 S.E.2d 830 (1996), cert. denied, 522 U.S. 817, 118 S. Ct. 66, 139 L. Ed. 2d 28 (1997).

Rape shield law not ex post facto as applied. - Rape shield law, § 18.2-67.7, was not an ex post facto law as applied to defendant as the law changed only procedures as to the admission of evidence. Pilcher v. Commonwealth, 41 Va. App. 158, 583 S.E.2d 70, 2003 Va. App. LEXIS 398 (2003). See also Pilcher v. Commonwealth, No. 2483-01-3, 2003 Va. App. LEXIS 402 (Ct. of Appeals July 15, 2003).

Procedural change wrought by § 18.2-67.7 does not implicate the prohibition on ex post facto laws under U.S. Const., Art. I, § 10, and Va. Const., Art. I, § 9. Pilcher v. Commonwealth, 41 Va. App. 158, 583 S.E.2d 70, 2003 Va. App. LEXIS 398 (2003). See also Pilcher v. Commonwealth, No. 2483-01-3, 2003 Va. App. LEXIS 402 (Ct. of Appeals July 15, 2003).

Contempt decree was civil and did not violate Constitution. - Where contempt proceeding against owner was civil and was part of the proceeding that city initiated against owner to enjoin and compel him to bring his property into compliance with the state and municipal building codes, and where after finding that owner intentionally violated injunction and in order to compel compliance with it, the court authorized the city to make the requisite repairs, for which a personal judgment would be entered against owner as necessary costs for bringing him into compliance with the injunction, the trial court's order was not punitive and the court order was, in all respects, remedial and designed to compel owner to comply with the building codes. Consequently, the contempt decree was civil, rather than criminal, and it did not violate the United States and Virginia constitutional prohibitions against ex post facto laws. Rainey v. City of Norfolk, 14 Va. App. 968, 421 S.E.2d 210 (1992).

No ex post facto violation found in prosecution for child pornography. - Despite defendant's contention on appeal that the child pornography material he was convicted of possessing was either created or last accessed at a time when such offense was a Class 1 misdemeanor, and hence, his conviction violated his constitutional right to be free from ex post facto punishment, because the Commonwealth adequately showed that two months after the crime became a felony, defendant was aware of, and knowingly possessed said materials on his computer and accessories, his conviction for the same was upheld. Moreover, (1) the mere fact that some of defendant's acts proving his possession in September 2003 occurred before the change in the law did not preclude application of the new law, and (2) the trial court properly found that defendant continued to possess the child pornographic images at the time of his arrest, notwithstanding the date the pornographic images were originally downloaded. Bodine v. Commonwealth, No. 0779-05-2, 2006 Va. App. LEXIS 509 (Nov. 7, 2006).

For acts held not invalid under this section, see Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

CIRCUIT COURT OPINIONS

Acts held not invalid under this section. - Based on the nonpunitive nature and purpose under subsection A of § 9.1-912 of the sex offender registry, § 9.1-900 et seq., the requirement that a defendant submit his current registry information to the Virginia State Police was not a violation of the U.S. or Virginia Constitutional prohibition against ex post facto laws under U.S. Const., Art. I, § 10, and Va. Const., Art. 1, § 9. Doe v. Commonwealth, 74 Va. Cir. 75, 2007 Va. Cir. LEXIS 130 (Fairfax County 2007).

Dismissal of a prisoner's petition for a writ of habeas corpus was appropriate because subdivision A 2 of § 8.01-654 was not a suspension act, and the prisoner's use of the writ was not a use recognized when Virginia adopted the Suspension Clause of Va. Const. art. I, § 9. Hicks v. Clarke, 87 Va. Cir. 208, 2013 Va. Cir. LEXIS 170 (Norfolk Oct. 23, 2013), aff'd, 289 Va. 288 , 768 S.E.2d 415 (Va. 2015).

Section 33.2-503 fine scheme was not excessive under Va. Const. art. 1, § 9, where the fines were imposed due to defendant's three prior violations. Transurban v. D'Arco, 92 Va. Cir. 285, 2016 Va. Cir. LEXIS 33 (Fairfax County Feb. 3, 2016).

Sentence appropriate. - In a case where defendant repeatedly engaged in sexual intercourse with his 12-year-old daughter, defendant's motion, arguing that the mandatory punishment of life in prison for his convictions for raping a minor under the age of 13 was unconstitutional, was denied because the mandatory life sentence imposed on defendant was not disproportionate to the gravity of the offense; courts were in general agreement that such offenses were deserving of serious punishment and had declined to intervene on Eighth Amendment grounds in cases involving life sentences; and defendant's heinous actions were consistent with the General Assembly's rationale for the establishment of a mandatory life sentence. Commonwealth v. Saravia, 91 Va. Cir. 48, 2015 Va. Cir. LEXIS 158 (Fairfax County July 22, 2015).

No application to criminal procedure issues. - Defendant's claim that the Eighth Amendment and Va. Const., Art. I, § 9 applied to criminal procedure issues was unsupported and was rejected; there was no logical nexus between the Eighth Amendment's proscription against cruel and unusual punishment and the admissibility of evidence at trial concerning prior convictions of a criminal defendant charged under a recidivist statute such as §§ 18.2-103 and 18.2-104. Commonwealth v. Dickens, 77 Va. Cir. 57, 2008 Va. Cir. LEXIS 124 (Fairfax County 2008).

No private right of action. - Sheriff's negligence in not providing the inmate with medical services was not actionable under the cruel and unusual punishment and due process of law provisions in the state constitution because no private right of action existed under either provision, except for claims of damage to or taking of property. Quigley v. McCabe, 91 Va. Cir. 397, 2015 Va. Cir. LEXIS 243 (Norfolk Nov. 30, 2015).

Sex offender registration. - Requirement that plaintiff register as a sex offender pursuant to subdivision A 2 of § 9.1-902 , did not violate any constitutional ex post facto prohibition. Corbett v. Commonwealth, 74 Va. Cir. 73, 2007 Va. Cir. LEXIS 282 (Chesapeake 2007).

Legislature afforded deference regarding penalties. - It is certainly within the province of the legislature to determine that a progressively greater penalty is required to deter repeated toll violations. Thus, the penalties imposed by § 46.2-819.1 increase as the number of prior violations increase. Rather than having no relationship to the alleged unlawful conduct, the enhanced penalties in § 46.2-819.1 are, in fact, directly proportional to the nature of the violation, the harm caused by it and the goal of deterrence. Metro. Wash. Airports Auth. v. Hagarty, 92 Va. Cir. 307, 2016 Va. Cir. LEXIS 48 (Fairfax County Feb. 22, 2016).

Great deference is afforded to the judgment of the people's elected representatives regarding the penalties for prohibited conduct, and those representatives, who remain accountable to the people via the ballot, can modify those penalties as needed by legislative amendments; the ultimate limit on the government's power to levy fines the people find to be excessive rests with the people, who are free to wield publicly by petitioning their elected representatives or privately in the voting booth. Metro. Wash. Airports Auth. v. Hagarty, 92 Va. Cir. 307, 2016 Va. Cir. LEXIS 47 (Fairfax County Mar. 28, 2016).

Toll road penalties. - Fines authorized by § 46.2-819.1 are not so plainly disproportioned to the offence or act, for the violation of which they are affixed, as to shock the sense of mankind, nor are they grossly disproportional. Therefore, these fines are not prohibited by Va. Const. art. 1, § 9. Metro. Wash. Airports Auth. v. Hagarty, 92 Va. Cir. 307, 2016 Va. Cir. LEXIS 48 (Fairfax County Feb. 22, 2016).

Driver's motion to reconsider a decision holding that the penalties authorized by § 46.2-819.1 were constitutional was denied because the statute did not violate the Excessive Fines Clause of the Eighth Amendment to the United States Constitution or the Virginia Constitution; the driver had constitutionally adequate notice because the penalties she faced for driving on a toll road without paying the applicable toll were clearly stated in a statute enacted by the legislature. Metro. Wash. Airports Auth. v. Hagarty, 92 Va. Cir. 307, 2016 Va. Cir. LEXIS 47 (Fairfax County Mar. 28, 2016).

Denial of bail. - Circuit court found that release of defendant under supervised release and a personal recognizance bond was appropriate because there was no constitutional right to cash bail and the imposition of a cash or surety bond release term upon defendant, who was determined to be indigent, would have been an unconstitutional application of the Virginia statutory bail bond scheme in derogation of the Due Process Clause of the United States Constitution. Commonwealth v. Hunter,, 2020 Va. Cir. LEXIS 491 (Fairfax County Nov. 6, 2020).

I. IN GENERAL.

The test of constitutional validity is whether at the moment of arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a reasonable person in believing that an offense had been committed. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Protections under the Virginia Constitution are substantially the same as those contained in the Fourth Amendment. Thus, if an automobile checkpoint survives Fourth Amendment scrutiny, it is constitutional under this article of the Constitution of Virginia. Simmons v. Commonwealth, 6 Va. App. 445, 371 S.E.2d 7 (1988), rev'd on other grounds, 238 Va. 200 , 380 S.E.2d 656 (1989).

The requirements under this section and statutes implementing it are substantially the same as those contained in the Fourth Amendment. Iglesias v. Commonwealth, 7 Va. App. 93, 372 S.E.2d 170 (1988).

Purpose of section. - General warrants, within this section, are search warrants issued "without any evidence of fact furnished previously to the issuance, or which do not designate any specific thing or person to be seized, or do not particularly describe the offense claimed to have been committed." Such search warrants would, if valid, authorize unreasonable searches and seizures, and for that reason they are condemned by this section; and in so doing this section merely adopts and makes unchangeable by the legislature the common law on the subject to that extent. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923); Zimmerman v. Town of Bedford, 134 Va. 787 , 115 S.E. 362 (1922).

It is the personal and political liberty of the citizen, especially the privacy of his home and his papers, which is sought to be protected by the common-law rule against "unreasonable" search and seizure, and which would be considered unreasonably violated if certain searches and seizures were permitted without search warrant, or under general search warrants. No right of property is primarily intended to be protected by the prohibition, and certain property rights are incidentally protected only because they are immediately incidental to and inseparable from the enjoyment of the personal rights. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

Searches and seizures made contrary to provisions contained in Virginia statutes provide no right of suppression unless the statute supplies that right. Janis v. Commonwealth, 22 Va. App. 646, 472 S.E.2d 649, aff'd, on reh'g, en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).

Evidence seized in violation of United States Constitution is inadmissible in state courts. - Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), holds that all evidence obtained by search and seizure in violation of the United States Constitution is, by that same authority, inadmissible in a state court. Rees v. Commonwealth, 203 Va. 850 , 127 S.E.2d 406 (1962), cert. denied, 372 U.S. 964, 83 S. Ct. 1088, 10 L. Ed. 2d 128 (1963).

Lack of probable cause. - Trial court should have suppressed the seizure of a folded dollar bill from defendant's wallet. Because the dollar bill was legal material with a legitimate purpose, police lacked probable cause to seize it. Snell v. Commonwealth, 275 Va. 472 , 659 S.E.2d 510, 2008 Va. LEXIS 50 (2008).

Eyewitness testimony of sexual assault sufficiently independent of evidence obtained by GPS device. - Exclusionary rule under Va. Const., Art. I, § 10, did not bar the eyewitness testimony of the officers who saw defendant commit a sexual assault, which was a new and distinct offense, and sufficiently independent of any information obtained by them from the GPS that they had placed on a van driven by defendant without a warrant. Foltz v. Commonwealth, 58 Va. App. 107, 706 S.E.2d 914, 2011 Va. App. LEXIS 165 (2011).

II. SEARCH WARRANTS.

Police officers must attempt to gain admittance peaceably. - Generally, police officers, before resorting to forced entry into premises to be searched under warrant, must attempt to gain admittance peaceably by announcing their presence, identifying themselves as police officers and stating their purpose. Gladden v. Commonwealth, 11 Va. App. 595, 400 S.E.2d 791 (1991).

After a proper "knock and announce," police detective reasonably concluded that defendant's wife had seen him through screen door and did not intend to let him in, and his subsequent entry through unlocked screen door was therefore appropriate. Simms v. Commonwealth, No. 1477-98-2, 1999 Va. App. LEXIS 432 (Ct. of Appeals July 13, 1999).

No absolute rule requiring "knock and announce" in every situation. - The validity of a search where the police fail to announce their presence and request peaceful entry prior to a forcible entry is judged in terms of its reasonableness within the meaning of the Fourth Amendment to the U.S. Const. and Art. I, § 10 of the Va. Const. Thus, Virginia has no absolute rule requiring a police officer to "knock and announce" in every situation when a search warrant is being executed. Commonwealth v. Viar, 15 Va. App. 490, 425 S.E.2d 86 (1992).

Circumstances in which a "no-knock" entry would be reasonable. - In Heaton v. Commonwealth, 215 Va. 137 , 207 S.E.2d 829 (1974), the court articulated the circumstances in which a "no-knock entry" would be considered reasonable for Fourth Amendment purposes: Exceptions to the general rule permit officers to make an unannounced entry where they have probable cause to believe that their peril would be increased if they announced their presence or that the unannounced entry is necessary to prevent persons within from escaping or destroying evidence. Gladden v. Commonwealth, 11 Va. App. 595, 400 S.E.2d 791 (1991).

Determining whether "knock and announce" doctrine applies. - Upon hearing a motion to suppress, the trial judge must first determine whether the "knock and announce" doctrine applies. The threshold issue for such a determination is the method of entry used by the police. Commonwealth v. Viar, 15 Va. App. 490, 425 S.E.2d 86 (1992).

"Knock and announce" doctrine does not apply where consent is given. - The "knock and announce" doctrine does not apply when law-enforcement personnel have gained entry into a dwelling by consent, because no force is used under such circumstances. It is irrelevant that the police gained entry by ruse or stratagem, as long as the consent to enter was not revoked prior to the police identifying themselves. Commonwealth v. Viar, 15 Va. App. 490, 425 S.E.2d 86 (1992).

Search warrant authorizing search of dwelling covers automobiles within curtilage. - A search warrant authorizing the search of a dwelling covers the occupant's automobiles found within the curtilage of those premises, even where the vehicle is not named in the warrant. Glenn v. Commonwealth, 10 Va. App. 150, 390 S.E.2d 505 (1990).

Trash can was found not to be within the curtilage of a house. - Where defendant made a general proffer that a trash can was beside the house, he presented no evidence concerning the proximity of the trash can to the house, nor the nature of the area surrounding the trash; thus, the trial court was presented with no evidence from which it could make a determination that the trash can was within the curtilage of the house. Askew v. Commonwealth, No. 1436-02-1, 2003 Va. App. LEXIS 555 (Ct. of Appeals Nov. 4, 2003).

Failure of warrant to state the offense. - Items seized pursuant to a search warrant were inadmissible into evidence because of the failure of the warrant to state the offense in relation to which the search was to be conducted, despite the fact that the affidavit contained the offense in relation to which the search was to be conducted, where the affidavit was not attached to the warrant until after the search warrant had been executed and the disputed items seized. Gilluly v. Commonwealth, 221 Va. 38 , 267 S.E.2d 105 (1980).

Evidence sufficient for warrant need only be basis for reasonable belief. - The controlling principle is that the evidence on which a search warrant may be issued does not have to be sufficient to establish the fact that the thing sought is on the premises, but merely that the belief of the person making the affidavit that it is there is based on facts which furnish a probable or reasonable cause for such belief. Tri-Pharmacy, Inc. v. United States, 203 Va. 723 , 127 S.E.2d 89 (1962), cert. denied, 371 U.S. 962, 83 S. Ct. 542, 9 L. Ed. 2d 509 (1963).

Trial court did not err in denying defendant's motion to suppress evidence regarding drugs that were found when police went to defendant's apartment after securing a search warrant to look for documents that could establish that defendant owned or possessed a car that he drove off in after being stopped by a police officer on a highway for speeding and which killed the officer when it rolled over as defendant and the officer struggled for control of the car; probable cause supported the affidavit that police submitted to obtain the warrant since defendant claimed not to own the car, evidence to contradict that claim would reasonably be located at defendant's apartment along with his other personal papers, and police obtained an additional warrant regarding the drugs after finding the drugs while looking for evidence at the apartment. Gregory v. Commonwealth, 46 Va. App. 683, 621 S.E.2d 162, 2005 Va. App. LEXIS 442 (2005).

Sufficiency of affidavit. - A search warrant issued upon an affidavit that affiant had watched the place of accused "and from the nature of the people going in and out of his premises, I am satisfied he has liquor there" is sufficient under this section. Zimmerman v. Town of Bedford, 134 Va. 787 , 115 S.E. 362 (1922).

Where affidavit gave absolutely no indication that the fruits of criminal activity would be found at the defendants' home, probable cause to search was objectively unreasonable. Janis v. Commonwealth, 22 Va. App. 646, 472 S.E.2d 649, aff'd, on reh'g, en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).

Trial court did not err in denying defendant's motion to suppress evidence seized as a result of a search warrant, where despite the fact that the affidavit supporting the same failed to provide the issuing magistrate with a substantial basis for concluding that probable cause to search defendant's home existed, officers possessed an objectively reasonable belief in the existence of probable cause, namely, that the fruits of criminal activity would probably be found at defendant's residence, for the good faith exception to the exclusionary rule to apply. Anzualda v. Commonwealth, 44 Va. App. 764, 607 S.E.2d 749, 2005 Va. App. LEXIS 88 (2005).

Affidavit contained insufficient probable cause. - Search warrant affidavit contained insufficient probable cause to support a warrant to search defendant's home for child pornography, as it stated a date for the offense that was two years later than the actual date, and it did not state any connection between the crime and defendant's residence. Commonwealth v. Conyngham, No. 1421-08-2, 2008 Va. App. LEXIS 538 (Dec. 8, 2008).

When reviewing a decision to issue a warrant, a reviewing court must grant great deference to the magistrate's interpretation of the predicate facts supporting the issuance of a search warrant and to determine whether probable cause supported the warrant. Janis v. Commonwealth, 22 Va. App. 646, 472 S.E.2d 649, aff'd, on reh'g, en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).

Issuance of subpoenas requiring production of books and papers. - It is generally held that the compulsory production of books and papers, described with reasonable particularity, covering a reasonable period of time, and relevant to the subject of the inquiry, does not constitute an unreasonable search and seizure. NAACP v. Committee on Offenses Against Admin. of Justice, 199 Va. 665 , 101 S.E.2d 631, vacated as moot, 358 U.S. 40, 79 S. Ct. 24, 3 L. Ed. 2d 46 (1958).

Examination of tobacco in warehouses. - The provisions of § 61.1-47 et seq., requiring the placing of tags on tobacco delivered to warehousemen or associations, identifying owners and growers, and permitting examination for 10 days, do not violate this section or the Fourth Amendment to the federal Constitution, prohibiting general search warrants, similar information being accessible to all by habit or custom of business. Warehouseman cannot escape this requirement. Danville Whse. Co. v. Tobacco Growers Coop. Ass'n, 143 Va. 741 , 129 S.E. 739 (1925).

Detaining persons found on premises. - Although plaintiffs contended that the federal agents battered them by handcuffing them upon entry into their residence, and that the agents falsely imprisoned them by detaining them in handcuffs in the living room for several hours while the warrant was executed, the federal agents were executing a facially valid search warrant for the residence and plaintiffs were occupants of the residence at the time of the search; initially handcuffing plaintiffs was a reasonable decision, in order to preserve officer and occupant safety and to properly execute the warrant, and the agents' conduct was thus reasonable. Unus v. Kane, 565 F.3d 103, 2009 U.S. App. LEXIS 9955 (4th Cir. 2009), cert. denied, 558 U.S. 1147, 130 S. Ct. 1137, 175 L. Ed. 2d 971, 2010 U.S. LEXIS 582 (U.S. 2010).

Breaking in door without knocking. - Where the police had reliable information that an apartment was a place from which illegal drugs were being dispensed, and where they knew that the door to the apartment was protected with two locks, and that persons seeking entry were placed under surveillance before being admitted and that drugs were being stored and dispensed from the kitchen and from a point only three to four feet from the bathroom where there were two receptacles that could have been used to dispose of and destroy evidence, the entry into the defendant's apartment by the police armed with a search warrant, by knocking open its door with a sledge hammer, where the police did not knock on the door or identify themselves, was not unreasonable. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).

Failure to knock or ring doorbell was unreasonable. - Officer's entry was unreasonable where the officer did not ring the doorbell and he did not knock on the door with his knuckles, hand or fist because the ringing of a doorbell and the knocking of a door knocker, if available, and the knocking on the door with the hand or fist are universally recognized signals to the occupants of a dwelling that someone is at the door wishing to gain entrance. Gladden v. Commonwealth, 11 Va. App. 595, 400 S.E.2d 791 (1991).

The question is not the amount of noise created by the officer, but rather what the noise communicates to the occupants within. The striking of two pieces of metal together on the front porch does not carry with it the recognition factor that the ringing of the doorbell or the knocking on the door would have. Gladden v. Commonwealth, 11 Va. App. 595, 400 S.E.2d 791 (1991).

Forcing entry was reasonable. - Although plaintiffs asserted that the federal agents assaulted them by forcing entry into their residence with a battering ram, and also by pointing firearms at them during the initial entry into the residence, the forced entry by the federal agents was reasonable and did not constitute an assault as the federal agents were entitled to consider the failure of plaintiffs to open the door as a refusal to permit entry in accordance with the warrant and they were thus justified in forcing entry into the residence and the federal agents were reasonably entitled to believe that the drawing of weapons was necessary in order to gain control of a fluid situation and ensure the safety of all involved. Unus v. Kane, 565 F.3d 103, 2009 U.S. App. LEXIS 9955 (4th Cir. 2009), cert. denied, 558 U.S. 1147, 130 S. Ct. 1137, 175 L. Ed. 2d 971, 2010 U.S. LEXIS 582 (U.S. 2010).

The failure of the police officers executing a search warrant to wait more than two or three seconds after knocking and announcing their presence before making a forced entry was unreasonable under the circumstances. Hargrave v. Commonwealth, 21 Va. App. 320, 464 S.E.2d 176 (1995).

Inserting key in hotel room door. - A police officer's insertion of a passkey into the lock of a hotel room door, prior to the officer's knocking and announcing his presence, did not constitute a violation of this section. Grover v. Commonwealth, 11 Va. App. 143, 396 S.E.2d 863 (1990).

Anticipatory warrants. - Trial court did not err in denying defendant's motion to suppress, as the anticipatory warrant that was executed at his residence was valid; defendant was protected from an improper search and seizure due to fact that defendant inspected the package delivered to him, accepted it, and took it inside his house, thus lessening the possibility that the package, which contained drugs, was delivered to him as part of government misconduct. Ward v. Commonwealth, 47 Va. App. 733, 627 S.E.2d 520, 2006 Va. App. LEXIS 105 (2006).

Probable cause to support search warrant. - Probable cause supported search warrant, during which drugs and guns were found, where the informant was responsible for investigating embezzlements for defendant's employer and the investigating police officer corroborated the information; the search was also lawful under the good faith exception to the exclusionary rule as the police were executing an arrest warrant when they discovered marijuana on defendant's person and searched the residence with defendant's consent, discovering methamphetamine on top of a locked safe in defendant's bedroom, which also contained marijuana. Coffey v. Commonwealth, No. 2912-01-3, 2003 Va. App. LEXIS 32 (Ct. of Appeals Jan. 28, 2003).

Magistrate had probable cause to issue a search warrant to search defendant's apartment where the affidavit supporting the warrant provided a detailed description of a confidential, reliable informant who, after giving "buy money" to an unwitting informant, saw the unwitting informant knock on defendant's door, walk in with money, and return to hand the reliable informant cocaine that was purchased. Totality of the circumstances, therefore, provided the magistrate with a substantial basis to find that probable cause justified the search. Slade v. Commonwealth, 43 Va. App. 61, 596 S.E.2d 90, 2004 Va. App. LEXIS 231 (2004).

Good faith exception to exclusionary rule inapplicable. - As reckless police work resulted in a both a misstatement and the omission of material facts in a search warrant affidavit, the good faith exception did not apply and evidence seized from defendant's home pursuant to the warrant had to be suppressed. Commonwealth v. Conyngham, No. 1421-08-2, 2008 Va. App. LEXIS 538 (Dec. 8, 2008).

III. WARRANTLESS SEARCHES.

A. GENERALLY.

A search warrant is not required at common law or under this section or the Fourth Amendment to the federal Constitution, for the search by an officer of private real estate not consisting of the dwelling house or curtilage or land in the actual custody at the time of some person. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

Since the entry in the instant case was not under any search warrant at all, this section has no direct application to the case. It has an indirect application, however, in its enunciation in part of the common rule on the subject. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

And officer may enter land remote from curtilage, not in immediate possession, without warrant. - Neither this section of the Constitution nor former § 19-30 (see now § 19.2-54) prohibits an officer from entering upon privately owned land remote from the dwelling house or curtilage and not in the immediate actual possession of anyone, without a search warrant. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

As Virginia has no constitutional provision against searches or seizures without warrant. - In Virginia, we have no constitutional provision on the subject of unreasonable searches and seizures, except this section, which merely forbids searches and seizures under general warrants, not searches and seizures without any warrant. McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

What is a reasonable search is purely a judicial question, and in determining it the court must look to all the circumstances. Johnson v. Commonwealth, 213 Va. 102 , 189 S.E.2d 678 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 918, 34 L. Ed. 2d 700 (1973).

Determination that rental truck was abandoned justified search. - Police properly concluded that a U-Haul truck rented by defendant was abandoned, and a trial court properly refused to suppress the evidence of stolen motorcycles found therein, where, after the police received a tip, it was determined that the rental agreement had expired, the truck was covered with mud and stuck, and was left on the property of defendant's aunt without her knowledge. Defendant had no expectation of privacy in the rental truck at the time and place of the search, because it was deemed abandoned. Thomas v. Commonwealth, No. 0524-03-3, 2004 Va. App. LEXIS 298 (Ct. of Appeals June 29, 2004).

Where defendant fled scene he surrendered expectation of privacy in his vehicle. - Defendant surrendered his expectation of privacy in his vehicle and had no standing to object to anything that transpired after he fled the scene. Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988).

Defendant's constitutional rights were not violated by officers who shined their flashlights into his car and observed evidence of robberies, after he had abandoned his car by fleeing from the scene. Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988).

Exigent circumstances cannot be created by police. - Trial court erred in not suppressing drugs seized in a warrantless search of defendant's home because no exigency existed except the one created by the police in announcing their presence; there was no evidence to suggest that a delay of several hours to obtain a search warrant would have allowed defendant to dispose of the drugs. Faines v. Commonwealth, No. 0145-04-3, 2005 Va. App. LEXIS 13 (Ct. of Appeals Jan. 11, 2005).

Inevitable discovery rule. - To satisfy the doctrine of inevitable discovery, the prosecution must show: (1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct, and (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; a third requirement that the police, also prior to the misconduct, were actively pursuing the alternative line of investigation was rejected in Virginia; thus, a motion to suppress cocaine evidence was properly denied where the discovery of the cocaine would have inevitably occurred following defendant's arrest for being a felon in possession of a handgun. Commonwealth v. Jones, 267 Va. 532 , 593 S.E.2d 204, 2004 Va. LEXIS 42 (2004).

Motion to suppress evidence was properly denied because, although officers improperly searched a closet during otherwise lawful protective sweep of a condominium, the affidavit for a search warrant only contained facts occurring during the lawful protective sweep, and the police possessed leads making discovery of the evidence inevitable at the time of the misconduct. Banks v. Commonwealth, No. 0905-08-1, 2009 Va. App. LEXIS 328 (July 21, 2009).

Standing to object. - Even assuming that codefendant was illegally searched, the defendant lacked standing to object to the search, since the defendant did not have a legitimate expectation of privacy in the codefendant's pocket. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Defendant had standing, as the owner and driver, to contest the stop and search of his car. Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988).

Seizure without a warrant. - Trial court did not err in denying defendant's motion to suppress the admission of tennis shoes that were seized from the townhouse defendant and another man shared because the inevitable discovery doctrine applied and the evidence showed that police would have inevitably discovered the tennis shoes and seized them since they appeared to have blood-spatter evidence on them, and the police were aware of their existence. Smith v. Commonwealth, 41 Va. App. 704, 589 S.E.2d 17, 2003 Va. App. LEXIS 600 (2003).

Because the facts and circumstances surrounding defendant's arrest outside of his home justified a warrantless search of that home, after officers broke through the barricaded door of the home after apprehending defendant, pursuant to either the exigent circumstances or protective sweep exceptions to the warrant requirement, the Court of Appeals did not err in reversing the circuit court's denial of defendant's motion to suppress the evidence seized as a result. Commonwealth v. Robertson, 275 Va. 559 , 659 S.E.2d 321, 2008 Va. LEXIS 49 (2008).

Trial court erred in suppressing a firearm found at the scene because the officers had probable cause to arrest defendant based on information received from an informant that the officers spoke to face-to-face; when officers first encountered defendant the defendant was nervous and determined to convince the officers that the defendant did not have a gun, even though the officers never mentioned that officers suspected the defendant had one; and an officer then found a gun in a vehicle the exact place defendant had been standing when the officers first spotted defendant. Commonwealth v. Moody, No. 1046-08-2, 2008 Va. App. LEXIS 438 (Sept. 30, 2008).

DNA evidence obtained from trash. - Trial court did not err by denying defendant's motion to suppress DNA evidence obtained from his trash and recyclables that had been placed on a public street for pickup and thus were abandoned property in which defendant retained no objective privacy expectation because nothing in the record indicated that police used defendant's DNA profile for any purpose other than identification through comparison with known DNA profiles associated with prior criminal offenses; and defendant presented no argument on brief that any private medical or other highly personal information putatively derivable from his DNA profile was, in fact, developed by police in violation of Virginia laws. Lovchik v. Commonwealth, No. 1094-19-4, 2020 Va. App. LEXIS 249 (Oct. 20, 2020).

Reasonable suspicion for seizure. - Detective had reasonable suspicion to seize defendant's Federal Express package, including the fact that there was no return address other than a Federal Express location, the shipment came from California, which was a known source state for drug shipments, the package smelled of dryer sheets, which were known to be used to mask drug odors, and defendant gave inconsistent answers about the package. White v. Commonwealth, No. 0402-12-1, 2012 Va. App. LEXIS 358 (Nov. 13, 2012).

Procurement of blood sample for DNA analysis. - The procurement of a blood sample for DNA analysis from a convicted felon does not violate the constitutional provision against unreasonable searches and seizures; in the case of convicted felons who are in the custody of the commonwealth, the minor intrusion caused by the taking of a blood sample is outweighed by the state's interest in determining inmates' identification characteristics specific to the person for improved law enforcement. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Rights not violated. - Searches of defendant's home did not violate defendant's rights, because defendant's mother consented to the first search and probable cause for a search warrant for the second search existed where it was reasonable to assume, based on the discovery of explosive devices and related paraphernalia in defendant's bedroom, that there would be material on research and construction of explosives in the house. Bay v. Commonwealth, 60 Va. App. 520, 729 S.E.2d 768, 2012 Va. App. LEXIS 254 (2012).

B. UNREASONABLE SEARCHES.

Reasonable searches and seizures are not forbidden. - Only unreasonable searches and seizures are forbidden by the common-law rule, or by the federal and state constitutional provisions on the same subject; "reasonable" searches and seizures without a search warrant are not thereby forbidden; and what is a reasonable or an unreasonable search or seizure is "purely a judicial question, and in determining it the court must look to all the circumstances." McClannan v. Chaplain, 136 Va. 1 , 116 S.E. 495 (1923).

Trial court did not err in denying defendant's motion to suppress evidence after defendant was arrested on drug charges, as defendant's voluntary responses to police officer's questions during a consensual encounter with defendant at the airport yielded information sufficient to establish probable cause to detain and arrest defendant, and, thus, police did not violate defendant's right to be free from unreasonable searches and seizures. Ibanez v. Commonwealth, No. 1200-02-1, 2003 Va. App. LEXIS 235 (Ct. of Appeals Apr. 22, 2003).

Under the totality of the circumstances, defendant was not illegally seized as the police officer had a particularized and objective basis for suspecting that defendant was involved in criminal activity. White v. Commonwealth, No. 2091-02-1, 2003 Va. App. LEXIS 367 (Ct. of Appeals June 24, 2003).

Trial court did not err in denying defendant's motion to suppress evidence as a police officer had reasonable suspicion to detain defendant for defendant's possible criminal behavior in breaking into cars at a mall and stealing items in those cars; the officer's investigatory stop was no longer than was necessary to determine if defendant was using a credit card stolen from one of the cars and the officer's handcuffing of defendant and pat-down of him did not turn the investigative detention into an arrest and, thus, did not violate defendant's rights because the seizure of defendant under the circumstances was reasonable. Dorsey v. Commonwealth, No. 2316-02-4, 2003 Va. App. LEXIS 604 (Ct. of Appeals Nov. 25, 2003).

Trial court did not err in denying defendant's motion to suppress alleging his Fourth Amendment rights were violated as defendant conceded that the police officer made a valid investigatory stop of his vehicle for speeding and the evidence showed that the officer smelled the odor of unburned marijuana coming from his vehicle before the officer asked defendant if he was carrying any contraband, which revealed that defendant was carrying a gun for which he did not have a permit and, later, that defendant was carrying cocaine; as a result, defendant did not show that any evidence was obtained due to an unreasonable search. Bailey v. Commonwealth, No. 2767-02-1, 2003 Va. App. LEXIS 610 (Ct. of Appeals Nov. 25, 2003).

Trial court erred in granting both defendants' motions to suppress as the police officers use of force in making an arrest after the officers made a valid investigatory stop of defendant's vehicle was not a ground for granting those motions; the officers were permitted to order defendants out of the vehicle pending completion of the investigatory stop and the search and seizure of defendants was reasonable since it could not be said that absent the use of force, the officers would not have discovered the cocaine and firearm in the vehicle. Commonwealth v. Fraierson, No. 1889-03-2, 2003 Va. App. LEXIS 645 (Ct. of Appeals Dec. 16, 2003).

After officers searched one man in a group of four men after his furtive gesture (reaching for his waistband) and found that he had a pellet gun, the officers' pat down search of the defendant, who was found by the trial court to be in the group because he was close by and did not leave the area, was proper since the officers then had reasonable suspicion to believe the group members were armed and dangerous such that they could conduct pat down searches to assure the officers' safety and not just because the defendant was a member of the group. El-Amin v. Commonwealth, 269 Va. 15 , 607 S.E.2d 115, 2005 Va. LEXIS 17 (2005).

And a person legally arrested on criminal charge may be searched. - A person legally arrested and in the custody of the law on a criminal charge may be subjected to a personal search and examination, even though against his will, for evidence as to his criminality, and, if found, it may be seized without violating his constitutional rights. Lucchesi v. Commonwealth, 122 Va. 872 , 94 S.E. 925 (1918).

Trial court properly denied defendant's suppression motion as the cocaine was discovered during a proper search incident to a lawful arrest for a concealed weapon violation; it was legally irrelevant under the Fourth Amendment that the deputy chose not to charge defendant with the lesser concealed weapon violation. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

Companion of a person validly detained. - Supreme Court of Virginia declined to adopt a per se rule that approved the search of the companion of a person validly detained based solely on the status of companion. El-Amin v. Commonwealth, 269 Va. 15 , 607 S.E.2d 115, 2005 Va. LEXIS 17 (2005).

Use of handcuffs did not transform a detention into an illegal arrest because a police officer: (1) saw defendant in a group that appeared to be using drugs; (2) could not see one of defendant's hands; and (3) knew that crack cocaine users could be unpredictable, combative and sometimes violent, and their smoking devices could be used as weapons. Thompson v. Commonwealth, 51 Va. App. 205, 656 S.E.2d 409, 2008 Va. App. LEXIS 59 (2008), rev'd, 277 Va. 280 , 673 S.E.2d 469 (2009) (as to whether butterfly knife was weapon of like kind).

Statements after unlawful arrest. - Trial court erred in denying defendant's motion to suppress incriminating statements defendant made after being arrested as police officers lacked probable cause to arrest defendant since the officers did not have knowledge of sufficient facts and circumstances that would allow a reasonable person to believe defendant had committed an offense. Johnson v. Commonwealth, Nos. 1438-02-2, 2019-02-2, 2050-02-2, 2003 Va. App. LEXIS 248 (Ct. of Appeals Apr. 29, 2003).

After defendant was issued summonses for driving on a suspended license and having an open container in his vehicle, the arresting officer had to have further reasonable suspicion or probable cause to detain defendant further, and, as the officer had no such probable cause, his actions in handcuffing defendant and transporting him to the police station were illegal, and defendant's subsequent inculpatory statements were properly suppressed. Commonwealth v. Hooks, No. 3383-02-4, 2003 Va. App. LEXIS 329 (Ct. of Appeals June 10, 2003).

Search to preserve evidence. - Though investigation of defendant for public drinking, which was an offense requiring only a summons and not an arrest, would not have warranted a search of defendant's bag as incident to a lawful arrest, police could search the bag to preserve evidence of the alcohol defendant was drinking. Since a search of defendant's bag did not violate his Fourth Amendment rights, denial of his motion to suppress the search was proper as was discovery of a firearm in plain view in the bag; defendant's conviction for possession of a concealed weapon was proper. Jones v. Commonwealth, No. 2079-03-2, 2004 Va. App. LEXIS 353 (Ct. of Appeals July 20, 2004).

Search incident to valid arrest was not improper body cavity or strip search. - Trial court did not err in denying defendant's motion to suppress the cocaine seized from his person after his valid arrest merely because the police conducted a warrantless strip and body cavity search, as an officer removed a protruding bag of suspected narcotics from defendant's anus without exposing his genitals or anal cavity upon being told by defendant's wife that such would be found therein; hence, the search was incidental to defendant's arrest and, not an improper strip or body cavity search, and was not unreasonable under the Fourth Amendment. Nowlin v. Commonwealth, No. 3050-05-4, 2006 Va. App. LEXIS 552 (Dec. 12, 2006).

Visual body cavity search of detainee was reasonable. - Where appellant was subjected to a visual body cavity search while being processed for detention into a jail, the search was reasonable because: (1) appellant was a pretrial detainee entering the inmate population at a detention facility; (2) the jail had a responsibility to find and destroy drugs; and (3) the search was carried out in a reasonable manner that protected appellant's sense of personal dignity. Winston v. Commonwealth, 51 Va. App. 74, 654 S.E.2d 340, 2007 Va. App. LEXIS 485 (2007).

Intrusive strip search. - Trial court erred in denying defendant's motion to suppress evidence obtained as a result of the lawful arrest of defendant on an outstanding warrant, as the search of defendant at a lockup violated defendant's Fourth Amendment rights in a case where defendant was later convicted of possession of cocaine with intent to distribute; contrary to the Commonwealth's argument, the search of defendant was not a less intrusive strip search, but was a more intrusive visual body cavity search where police officers had defendant bend over and spread defendant's buttock cheeks, and the search was unreasonable because police did not have a "clear indication" that evidence was located within defendant's body and the police officers did not show that they faced exigent circumstances that required such an invasive search be performed. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391, 2007 Va. App. LEXIS 194 (2007).

Seizure without probable cause or reasonable suspicion. - Police officers were justified in seizing and detaining a defendant by ordering him to lie on the ground with his arms extended, although they lacked reasonable suspicion or probable cause to believe the defendant was involved in criminal activity, where they did have probable cause to believe two other individuals who they sought to apprehend had been selling crack cocaine nearby. Those two suspects had retreated into a group of which the defendant had been a part, the events occurred in a high crime area and in front of a reputed crack house about which the police had received numerous "shots fired" complaints, and the police had ordered all bystanders to lie on the ground for their own protection as well as that of the police officers. Welshman v. Commonwealth, 28 Va. App. 20, 502 S.E.2d 122 (1998).

Trial court's denial of defendant's motion to suppress was error and, thus, the finding that defendant was guilty of possession of marijuana with intent to distribute had to be reversed; police did not have probable cause to seize CDs found in defendant's car, pursuant to §§ 59.1-41.5 and 59.1-41.4, since the items they thought were bogus CDs could have been legitimate, homemade CDs, and, thus, since the search for more CDs in his car led to the discovery of marijuana, the motion to suppress the marijuana evidence should have been granted because the seizure of that evidence was not reasonable given the lack of probable cause to search. McLaughlin v. Commonwealth, 48 Va. App. 243, 629 S.E.2d 724, 2006 Va. App. LEXIS 218 (2006).

Because an officer lacked probable cause to arrest defendant for possession of marijuana, reliance upon the officer's detection of an unidentified "faint odor" was insufficient to create probable cause, and defendant's suspicious behavior as an intoxicated person did not warrant any further investigation, denial of her suppression motion was reversed. Buhrman v. Commonwealth, 275 Va. 501 , 659 S.E.2d 325, 2008 Va. LEXIS 43 (2008).

No basis for warrantless protective sweep of defendant's house. - Warrantless entry into defendant's house after an extended confrontation with police was improper because defendant was arrested outside of the house, there was no reason to believe that anyone else was in the house, defendant and his girlfriend told officers that he was alone in the house, the officers did not have a reasonable suspicion that, after defendant's arrest, the house harbored an individual posing a danger, there was no "urgency" as defendant was in custody at the time of the entry, and the front door was locked; finally, defendant was initially arrested for being drunk in public, which generally was not characterized as an offense necessarily involving violence. There was no basis for a "protective sweep" and there were no other exigent circumstances that justified the warrantless entry. Robertson v. Commonwealth, 49 Va. App. 787, 645 S.E.2d 332, 2007 Va. App. LEXIS 250 (2007), aff'd, 275 Va. 559 , 659 S.E.2d 321, 2008 Va. LEXIS 49 (2008).

Anonymous tip insufficient to support probable cause. - Motion to suppress should have been granted where the minimal corroboration for an anonymous tip that defendant admitted participating in a robbery did not provide probable cause for a warrantless arrest. Gary v. Commonwealth, No. 0432-03-1, 2003 Va. App. LEXIS 619 (Ct. of Appeals Dec. 2, 2003).

Trial court erred in denying defendant's motion to suppress evidence found on his person following a traffic stop, as the anonymous tip given to the police officer, under the totality of the circumstances, lacked sufficient indicia of reliability to justify the investigatory stop of the vehicle in which defendant was a passenger; accordingly, the stop of the vehicle and the subsequent search of defendant's person were illegal, which meant the motion to suppress should have been granted. Jackson v. Commonwealth, 267 Va. 666 , 594 S.E.2d 595, 2004 Va. LEXIS 74 (2004).

Detention in police vehicle not an illegal seizure. - Officer's direction to defendant to have a seat in the vehicle was reasonable as her presence on the roadside, in the rain, endangered her and the officers; defendant's detention was reasonable and did not taint her consent to a purse search that revealed her illegal possession of cocaine. Austin v. Commonwealth, No. 0082-03-1, 2003 Va. App. LEXIS 587 (Ct. of Appeals Nov. 12, 2003).

Use of GPS was not unreasonable. - Police did not violate the Fourth Amendment or Va. Const., Art. I, § 10, by installing a global positioning system (GPS) device in the bumper of defendant's work van while it was parked in the public street or by tracking the van with the GPS device on public streets, especially given that, before installing the GPS device, the police had reasonable, articulable suspicion that defendant was involved in a series of sexual assaults. Foltz v. Commonwealth, 57 Va. App. 68, 698 S.E.2d 281, 2010 Va. App. LEXIS 359 (2010).

Probable cause to search. - The events witnessed by the police officer during his surveillance provided him with a suspicion of criminal activity, but not probable cause, where he did not observe suspected narcotics change hands, nor did he observe the exchange of any object that in his experience suggested narcotics, and there was no evidence that the area under surveillance was noted for heroin transactions or that the transactions observed were furtive in nature. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

Where the defendant and codefendant were stopped and patted down for weapons but not subjected to further investigation until another police officer arrived, the initial stop did not constitute an arrest; the defendant was not actually arrested until the other officer arrived on the scene and found a substance he suspected was heroin in the pocket of codefendant, and the discovery of this substance, along with the other officer's prior observations, provided probable cause to arrest defendant. DePriest v. Commonwealth, 4 Va. App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 571 (1988).

The existence of probable cause is determined by examining the totality of the circumstances. Janis v. Commonwealth, 22 Va. App. 646, 472 S.E.2d 649, aff'd, on reh'g, en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996).

Deputy had probable cause to believe that defendant was carrying a concealed weapon where, except for a "couple of inches" of the butt of the handgun protruding from defendant's pocket, the rest of the weapon was completely hidden, and even those "couple of inches" were observed by the deputy only during the close-quarters encounter of a weapons frisk, not beforehand. Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448, 2003 Va. App. LEXIS 352 (2003).

When police received a call that someone had been shooting a weapon on a certain street, and, when they contacted the person who made the call, that person pointed out defendant, who was not engaged in any criminal behavior, they did not have probable cause allowing them to enter defendant's back yard without a warrant, because the call did not state or reasonably imply that a weapon had been fired "within" or "at" an occupied dwelling, so a person of reasonable caution was not warranted in believing that an offense had been or was being committed. Quente v. Commonwealth, No. 1517-03-1, 2004 Va. App. LEXIS 212 (Ct. of Appeals May 4, 2004).

Officer had probable cause to arrest defendant where the officer "had reason to believe" that a crime was being committed and there was abundant evidence that defendant was disregarding the officer's signal or attempting to escape or elude the officer. Proffitt v. Commonwealth, No. 1424-10-2, 2011 Va. App. LEXIS 339 (2011).

Trial court was sufficiently alerted to the issue that the Commonwealth of Virginia raised on appeal and the argument was preserved for appellate consideration because, in its letter opinion, the trial court expressly stated that the issues to be decided included whether exigent circumstances existed to allow police officers to breach the curtilage of defendant's home in the conduct of a warrantless arrest of defendant. Commonwealth v. Carroll, No. 0975-18-4, 2018 Va. App. LEXIS 321 (Nov. 20, 2018).

Probable cause for detention. - Defendant's suppression motion was properly denied where: (1) a police officer had a reasonable, articulable suspicion that defendant was the man who was wanted on the capias as defendant's physical characteristics and clothing matched the description provided by dispatch, and defendant was near the address provided by dispatch in the backseat of a taxi matching the description provided by dispatch; (2) the officer was justified in detaining defendant further as he gave obviously false identifying information; and (3) when defendant struck the officer, he had probable cause for the arrest, which led to the search incident to a lawful arrest in which the drugs were discovered. Jackson v. Commonwealth, No. 0628-02-3, 2003 Va. App. LEXIS 340 (Ct. of Appeals June 17, 2003).

Probable cause to arrest. - Probable cause existed to arrest defendant when the van that he had occupied had driven the drug seller to each of the transactions, defendant told police officers where they could find the drug seller, and defendant was sitting next to a supply of cocaine in the van. Gomez v. Commonwealth, No. 0347-02-4, 2003 Va. App. LEXIS 386 (Ct. of Appeals July 8, 2003).

Trial court's entry of an order granting defendant's motion to suppress was reversed as the police had probable cause to arrest defendant for driving under the influence, making the search incident to a lawful arrest, in which the police discovered cocaine, constitutional, where: (1) defendant failed to stop at an intersection controlled by a stop sign and did not signal a turn; (2) the officer smelled alcohol as defendant rolled down his window and defendant denied consuming any alcohol; (3) his movements were slow, his speech was somewhat slurred, and his eyes were glassy and bloodshot; (4) defendant successfully completed the counting field sobriety test; and (5) defendant did not follow the officer's instructions on the alphabet sobriety test, and put his foot down and used his arms to maintain balance on the stork stand sobriety test. Commonwealth v. Elliott, No. 1000-03-2, 2003 Va. App. LEXIS 467 (Ct. of Appeals Sept. 4, 2003).

Defendant's suppression motion was properly denied as defendant's consensual encounter with the police turned into probable cause for a full-scale arrest when the officer, while handing back defendant's identification, noticed that defendant had a bag of cocaine in his mouth. Williams v. Commonwealth, No. 3182-02-2, 2004 Va. App. LEXIS 160 (Ct. of Appeals Apr. 6, 2004).

Denial of defendant's motion to suppress evidence seized from defendant's person incident to a warrantless arrest was upheld, because the officers had probable cause for the warrantless arrest and thus, the search incident thereto given verified information from a confidential informant regarding defendant's identity, automobile, and destination, and the officers' observations of defendant's suspicious behavior and interactions with a man at the subject location. Robinson v. Commonwealth, 53 Va. App. 732, 675 S.E.2d 206, 2009 Va. App. LEXIS 174 (2009).

Petitioner's application for the issuance of a writ of habeas corpus was denied because petitioner did not bear his burden of demonstrating that he was prejudiced when his counsel failed to appeal the validity of a traffic stop since a police officer had a reasonable articulable suspicion to stop petitioner, which ripened into probable cause to arrest and search, and even if petitioner's counsel had properly appealed the issue of the validity of the stop, the result of the appeal would have been the same; once the officer stopped petitioner, he approached petitioner's vehicle, got near the vehicle, and could smell the odor of marijuana coming from the vehicle and the smoke exiting the vehicle from the rolled-down window, and when the officer smelled the odor of marijuana, after seeing what he thought was a marijuana cigarette in petitioner's possession, he had probable cause to arrest and search petitioner and the vehicle. Williams v. Warden of the Sussex I State Prison, 278 Va. 641 , 685 S.E.2d 674, 2009 Va. LEXIS 110 (2009).

Trial court erred in granting defendant's motion to suppress his statement to an arresting officer that he had taken an item from a store because under the totality of the circumstances, there was probable cause to arrest defendant since he matched the description given by an eyewitness and was apprehended near the scene of the crime; when the arrest officer found defendant in a library he knew that a shoplifting had occurred at the store located across the street and that the suspect was a white male wearing a gray hooded sweatshirt who fled toward the library. Commonwealth v. Hicks, No. 1742-11-3, 2012 Va. App. LEXIS 33 (Ct. of Appeals Feb. 7, 2012).

Trial court did not err in refusing to suppress evidence because evidence obtained from independent sources provided probable cause for defendant's arrest and the accompanying search of his vehicle for a crime committed only hours earlier; the focus on defendant as a suspect did not begin with the placement of a global positioning system device on his vehicle. Hill v. Commonwealth, No. 1828-11-3, 2012 Va. App. LEXIS 318 (Ct. of Appeals Oct. 9, 2012).

C. CONSENT.

Test for consent to warrantless search to be voluntary. - When the Commonwealth seeks to justify a warrantless search on the basis of consent, it bears the burden of proving by a preponderance of the evidence that the consent was voluntary, and the Commonwealth bears the same burden when it seeks to admit a defendant's statements; in order to determine whether a particular statement or consent to search was "voluntary," the test is whether the statement or consent to search is the product of an essentially free and unconstrained choice or whether the individual's will has been overborne and his capacity for self-determination critically. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

Consent to warrantless search was voluntary. - Trial court's finding that defendant's consent to a warrantless search was voluntary was supported by the preponderance of the evidence, viewed in the light most favorable to the Commonwealth, where: (1) a trooper testified that she obtained permission from defendant's doctors to question him; (2) defendant did not seem at all dazed or confused, knew who he was, seemed okay to talk with, was answering the trooper's questions, and was not in any kind of physical pain; (3) the medical records established that defendant's condition improved while he was in the emergency room; (4) the Commonwealth's expert testified that an average person metabolizes alcohol at varying rates; and (5) the trial court was not required to accept the Commonwealth's expert's testimony regarding the likely impact of alcohol and other substances detected in defendant's blood and urine on his mental and physical abilities. Bourne v. Commonwealth, No. 0309-02-4, 2003 Va. App. LEXIS 111 (Ct. of Appeals Mar. 4, 2003).

Trial court did not err in denying defendant's motion to suppress the drug evidence as his consent to search was valid; defendant was not illegally detained as the continuation of the encounter after the traffic stop had ended was consensual. Cardenas v. Commonwealth, No. 1070-03-4, 2004 Va. App. LEXIS 130 (Ct. of Appeals Mar. 30, 2004).

Based on a citizen informant's statement that defendant confessed the burglary to her, the victim's information, and the victim's sister's statement that defendant's DVD collection was bigger after the burglary, the officer had probable cause to obtain a search warrant and to freeze the scene by excluding people from the premises for a reasonable time while obtaining a warrant; that same information provided officers with at least reasonable suspicion to detain defendant for a reasonable period of time while obtaining and executing a search warrant. Because the evidence supported a finding that the actions of the police were reasonable under the circumstances, their decision to freeze the scene by requiring defendant to stay and preventing others from entering did not compel the conclusion that her consent to the search of her house was involuntary, and, furthermore, the officers' failure to clearly indicate to defendant that she had a legal right to delimit the scope of the search did not compel the conclusion that her consent to search the house was involuntary; thus, defendant's motion to suppress was properly denied because she consented to both the entry and search of her residence. Thomas v. Commonwealth,, 2005 Va. App. LEXIS 363 (Sept. 20, 2005).

Consent to warrantless search was not voluntary. - Where defendant was in custody at the time of a search and did not know that defendant could refuse consent to a further search, defendant did not voluntarily consent to the second search; the evidence derived from the second search was properly suppressed. Commonwealth v. Johnson, No. 0767-04-1, 2004 Va. App. LEXIS 365 (Ct. of Appeals July 27, 2004).

Consensual encounter. - Trial court did not err in denying defendant's motion to suppress evidence as a police officer's questions to defendant after the officer told defendant he was free to leave involved a consensual encounter and meant that defendant was not seized in violation of his Fourth Amendment rights. Dickerson v. Commonwealth, 266 Va. 14 , 581 S.E.2d 195, 2003 Va. LEXIS 60 (2003).

Trial court did not err in denying defendant's motion to suppress based on detention of defendant in a park near where an assailant attacked a woman as the police officer's first encounter with defendant was consensual, and the officer's observations gave the officer reasonable suspicion to detain defendant until the officer could determine whether probable cause existed to arrest defendant or defendant had to be let go. Blevins v. Commonwealth, 40 Va. App. 412, 579 S.E.2d 658, 2003 Va. App. LEXIS 254 (2003).

When defendant, seeking the return of his identification, which he had voluntarily relinquished to the police, was asked if police could perform a pat-down search of him, and he silently raised his arms, this established his consent to the pat-down search. Baker v. Commonwealth, No. 1311-03-2, 2004 Va. App. LEXIS 222 (Ct. of Appeals May 11, 2004).

Seizure during consensual traffic stop. - Seizure of evidence did not violate defendant's constitutional rights where police officers and defendant were engaged in a consensual traffic stop after conclusion of the lawful traffic stop; the fact that the officers were armed and their lights were still flashing did not contribute to coerciveness of encounter and were of no consequence given circumstances that they were stopped on the side of a road as it entered a subdivision. Malbrough v. Commonwealth, No. 0609-05-2, 2006 Va. App. LEXIS 438 (Oct. 3, 2006).

Wave of officer's badge in the direction of defendant's slowly moving vehicle. - Circuit court properly denied defendant's motion to suppress evidence because even assuming that the police detective seized defendant in violation of his rights by waving his badge in the direction of defendant's slowly moving vehicle, the seizure quickly ended, the officers' behavior was noncoercive, and defendant's interaction with them was entirely consensual; defendant's confession during the interview was sufficiently purged of any taint that might have flowed from the original stop of his vehicle. Olson v. Commonwealth, No. 2462-06-1, 2008 Va. App. LEXIS 95 (Feb. 26, 2008).

Consent to breath test by driving. - Protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution; thus, defendant's conviction under § 18.2-268.3 for unlawfully refusing to provide a breath sample after being arrested for driving under the influence of alcohol was affirmed because § 18.2-268.3 did not authorize an unlawful search or seizure under the Fourth Amendment as the act of driving constituted an irrevocable, albeit implied, consent to a police officer's demand for a breath sample. Rowley v. Commonwealth, 48 Va. App. 181, 629 S.E.2d 188, 2006 Va. App. LEXIS 167 (2006).

Scope of consent. - Finding that an officer exceeded the scope of defendant's consent to remove a vehicle tag from the back seat of defendant's car and an order suppressing a gun found in defendant's car were proper because the officer's incident report supported the finding that the officer had already retrieved the tag from the rear floorboard before he moved to the front seat to retrieve a bottle he had seen, which ultimately led to the discovery of the gun. Commonwealth v. Combs, No. 0367-07-1, 2007 Va. App. LEXIS 301 (Aug. 14, 2007).

D. STOP AND SEARCH.

Stopping of vehicles at checkpoint advances substantial interest of Commonwealth. - The Commonwealth has a substantial interest in protecting its motorists, passengers and pedestrians from unsafe drivers and vehicles, and the stopping of all vehicles at a fixed checkpoint advances this public interest. Simmons v. Commonwealth, 6 Va. App. 445, 371 S.E.2d 7 (1988), rev'd on other grounds, 238 Va. 200 , 380 S.E.2d 656 (1989).

Sobriety checkpoint. - The seizure of defendant upon the initial stop at a license and sobriety checkpoint in question was constitutionally valid, where uniformed police officers, wearing reflector vests, were assigned to the scene, the area and the warning sign were well-lighted, there were two marked police vehicles present with red lights flashing, the geography of the site permitted adequate space for the momentary initial detention to check licenses and to afford space for vehicles, whose operators required further evaluation, to pull aside, the officers at the checkpoint had no discretion regarding which vehicles to stop and every southbound vehicle was halted, if congestion occurred, vehicles were permitted to move through the checkpoint until the congestion cleared, and the police endeavored to detain a motorist no more than 30 seconds for the license check. Balancing the state's strong interest in protecting the public from the grave risk presented by drunk drivers, against the minimal inconvenience caused motorists approaching the roadblock, the action of the police was not an impermissible infringement upon defendant's reasonable expectation of privacy. Lowe v. Commonwealth, 230 Va. 346 , 337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 720 (1986), cert. denied, 475 U.S. 1084, 106 S. Ct. 1464, 89 L. Ed. 2d 720 (1986).

Police roadblock held to be reasonable. - Because a patrol supervisor and the officers conducting a traffic checkpoint had limited, supervised discretion, the checkpoint was proper; accordingly, the trial court erred in concluding that the patrol supervisor had too much discretion and in suppressing the evidence obtained during a stop of defendant's vehicle. Commonwealth v. Hall, No. 0144-09-3, 2009 Va. App. LEXIS 264 (June 16, 2009).

Roadblock held to be violating Fourth Amendment. - Where the decision to establish the roadblock as well as its location and duration was solely within the discretion of the troopers and no advance approval or authorization from any supervisor or superior officer was required to set up the roadblock, a statement that the troopers followed standard operating procedure in stopping every car was not sufficient to establish that an explicit plan or practice existed regarding roadblock or check point procedures and the initial stop of defendant's automobile violated the Fourth Amendment and evidence seized as result of this stop had to be suppressed. Simmons v. Commonwealth, 238 Va. 200 , 380 S.E.2d 656 (1989).

Evidence held sufficient for stop of vehicle without warrant. - Where police officer knew that a black male had committed at least two robberies in the immediate vicinity and that a third had just occurred, and he saw a black male pull out abruptly in front of him and across the street from the most recent robbery, and the driver drove erratically and acted suspiciously, it was held that the officer was possessed of specific and articulable facts which, together with reasonable inferences deducible therefrom, were sufficient to allow him to reasonably conclude that the suspect may have been participating in criminal activity. Therefore, the officer was justified in stopping the vehicle to investigate. Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988).

Trial court correctly refused to suppress either the weapon found on the defendant during a pat down search, following a tip from a concerned citizen that the defendant was brandishing a weapon, or the crack cocaine found on the defendant during a search incident to the defendant's arrest because the tip provided information permitting the officers to reasonably infer that it: (1) came from a concerned citizen making a contemporaneous, eyewitness report; (2) involved an open and obvious crime rather than mere concealed illegality; and (3) described criminality posing an imminent danger to the public; therefore, the officers correctly concluded the totality of the circumstances raised a reasonable suspicion to believe that criminal activity may be afoot. Jackson v. Commonwealth, 39 Va. App. 624, 576 S.E.2d 206, 2003 Va. App. LEXIS 37 (2003).

Trial court did not err in denying defendant's motion to suppress evidence, as defendant did not show that his Fourth Amendment rights were violated when the officer stopped the vehicle after receiving a detailed report and confirming the information that he received to the effect that defendant was driving in an uncontrolled manner; the stop of defendant's vehicle was reasonable under the circumstances and evidence the officer found during the stop - beer containers in a cup holder, defendant's speech slurred, and defendant smelling of alcohol - provided probable cause to arrest defendant. Gregory v. Commonwealth, No. 3030-02-3, 2004 Va. App. LEXIS 171 (Ct. of Appeals Apr. 13, 2004).

Evidence held insufficient to make traffic stop. - Circuit court properly granted defendant's motion to suppress evidence seized as a result of a traffic stop on grounds that said evidence failed to show a reasonable articulable suspicion that defendant was violating § 46.2-848 or attempting to avoid or evade the checkpoint, and the arresting officer never articulated a reasonable basis as to why he made a vehicle stop of defendant, did not testify that he believed defendant was evading a roadblock, and never stated that he believed that defendant violated, or was about to violate, the law. Commonwealth v. Wells, No. 1869-06-3, 2007 Va. App. LEXIS 9 (Jan. 9, 2007).

Investigatory stop. - Investigatory stop was justified by defendant's actions, walking around to the passenger side of the parked car after being told to stop by the officers, sitting down in the car, and making furtive gestures underneath the passenger seat, which provided reasonable suspicion criminal activity was afoot. Woodhouse v. Commonwealth, No. 1643-06-1, 2008 Va. App. LEXIS 1 (Jan. 8, 2008).

Totality of circumstances supported an officer's reasonable suspicion to detain defendant because the officer observed a known drug user put his hands into a car in which defendant sat, the user withdrew his hands when he saw the officer approach, defendant moved his hands to the glove compartment and then to the floorboard, and the officer conducted a protective sweep. Commonwealth v. Granger, No. 2082-07-1, 2008 Va. App. LEXIS 68 (Feb. 12, 2008).

Because a dog's alert created probable cause to search defendant's car, defendant's motion to suppress the firearm found in the vehicle's trunk was properly denied. Jones v. Commonwealth, No. 1190-07-1, 2007 Va. App. LEXIS 499 (Oct. 30, 2007), aff'd, 277 Va. 171 , 670 S.E.2d 727 (2009).

Evidence supported the denial of defendant's motion to suppress because the police developed, first, reasonable suspicion for the detention and, then, probable cause for defendant's arrest, and the evidence supported a finding that, at the time of the seizure, reasonable suspicion existed to believe defendant could have been involved in a crime; when the officer first approached defendant she knew that he fit the robber's general description, defendant admitted that he had just come from the shopping center in which the robbery had occurred, and once the seizure had occurred, officers worked to confirm or dispel the suspicions supporting the detention. Clark v. Commonwealth, No. 0946-10-1, 2011 Va. App. LEXIS 282 (Sept. 20, 2011).

Trial court erred by suppressing evidence of marijuana and cocaine found on defendant's person on the grounds that the police officer's subjective intent to identify defendant was unreasonable because defendant's commission of several traffic infractions provided the officer an objectively reasonable basis to conduct an investigatory stop of his vehicle; therefore, it was irrelevant that the officer intended to stop defendant's vehicle for the purpose of determining if defendant was a person wanted for murder. Commonwealth v. Hickman, No. 2055-12-2, 2013 Va. App. LEXIS 121 (Ct. of Appeals Apr. 16, 2013).

Pat-down search. - Trial court erred in denying defendant's motion to suppress evidence found on defendant, a member of a group that had been suspected of smoking marijuana; for the search to have been reasonable, the police had to show that they had a reasonable belief that defendant was armed and dangerous and, since they could not make that showing, the pat-down search of defendant was unjustified. El-Amin v. Commonwealth, No. 1472-02-2, 2003 Va. App. LEXIS 315 (Ct. of Appeals May 27, 2003).

Under the plain feel exception, the officer's belief that the substance was marijuana upon patting defendant's pocket and without further manipulating its contents, if found credible by the trial court, was sufficient to provide probable cause to seize the contents of the pocket; thus, where the events leading up to the same were consensual, the trial court properly denied defendant's motion to suppress the contraband seized. Taylor v. Commonwealth, No. 2856-04-2, 2006 Va. App. LEXIS 78 (Mar. 7, 2006).

Even assuming that the initial detention of defendant was lawful, the police officer's pat-down search of defendant violated defendant's rights under the Fourth Amendment and Va. Const., Art. I, § 10. The frisk of defendant was not supported by the reasonable belief that defendant was armed and presently dangerous and the inevitable discovery doctrine did not apply since the officer lacked probable cause to arrest defendant. Marzette v. Commonwealth, No. 2501-06-2, 2007 Va. App. LEXIS 433 (Nov. 27, 2007).

Trial court should have suppressed evidence obtained in violation of defendant's Fourth Amendment rights in a case where a police officer testified that the officer knew capsules that the officer felt in defendant's left front pants pocket contained heroin because the officer's training and experience told the officer that was how heroin was packaged. The officer also admitted at the suppression hearing that some over-the-counter medications were packaged in capsules and, thus, it was not immediately apparent to the officer when the officer felt the capsules that they contained evidence of a crime. Cost v. Commonwealth, 275 Va. 246 , 657 S.E.2d 505, 2008 Va. LEXIS 33 (2008).

Officer lacked a reasonable, articulable suspicion to detain defendant for a weapons frisk, even though the officer stopped defendant and his two companions within a block of a shooting that had occurred four minutes earlier; no one in the group was wearing camouflage clothes, as described by police dispatcher who took a 911 call, and the officer observed no suspicious bulge that could have been a weapon. Jennings v. Commonwealth, No. 1712-06-3, 2008 Va. App. LEXIS 43 (Jan. 29, 2008).

Drawing gun and frisking defendant held not an arrest. - Where officer had stopped a vehicle where driver was suspected of armed robbery, the officer was fully justified in drawing his gun and frisking defendant to protect himself, and his actions did not constitute an arrest. Wells v. Commonwealth, 6 Va. App. 541, 371 S.E.2d 19 (1988).

Investigatory stop of defendant on foot. - The trial court properly denied defendant's motion to suppress the cocaine seized from defendant's person, as a deputy, in conducting an investigatory stop of defendant on foot, observed that defendant smelled of alcohol, had a flushed face, and was unsteady on his feet, supplying the officer with probable cause to arrest defendant for public intoxication. Thus, given the validity of the stop, the trial court correctly denied defendant's suppression motion. Croson v. Commonwealth, No. 0935-06-2, 2007 Va. App. LEXIS 276 (July 24, 2007).

Investigatory stop and search of book bag. - Officer had reasonable, articulable suspicion to stop defendant where the officer knew that a shooting and armed robbery had occurred, defendant matched the description of the suspect involved in both crimes, defendant was in close proximity to where the crimes occurred shortly after they occurred, and defendant was close to the location of the vehicle bail-out, acting suspiciously. The search of defendant's book bag, during which the officer felt a hard object he believed to be a gun, was reasonable. Alana v. Commonwealth, No. 1602-05-4, 2007 Va. App. LEXIS 13 (Jan. 16, 2007).

CIRCUIT COURT OPINIONS

Applicability. - In a matter arising out of a dog bite incident giving rise to a dangerous dog proceeding, defendant's motion to suppress was denied because, based on a plain meaning textual analysis, the character of the penalties in a dangerous dog proceeding, and an understanding of the underlying purposes of the exclusionary rule, the dangerous dog proceeding should be treated as a civil proceeding, which thus barred application of the exclusionary rule to the dangerous dog proceeding. Commonwealth v. Shafer, 91 Va. Cir. 234, 2015 Va. Cir. LEXIS 160 (Fairfax County Sept. 28, 2015).

Search conducted after finding gun described in warrant was illegal. - Ongoing search conducted after the police had located a gun described in a search warrant was illegal, and the items found during that ongoing search were not admissible under the plain view doctrine. Commonwealth v. Marek, 59 Va. Cir. 349, 2002 Va. Cir. LEXIS 374 (Prince William County Aug. 9, 2002).

Good faith exception. - Even if the affidavit supporting the finding for probable cause to issue the warrant were found to be defective, the evidence seized would be considered admissible under a good faith exception when the officers executing the warrant had every reason to believe that the warrant was valid. Commonwealth v. Logan, 71 Va. Cir. 339, 2006 Va. Cir. LEXIS 152 (Roanoke 2006).

Defendant's motion to suppress evidence seized pursuant to a search warrant was denied because the affidavit supporting the warrant was sufficient to support a finding of probable cause when it stated that a confidential informant had made a controlled drug buy from defendant's premises sometime within the past 72 hours. Commonwealth v. Logan, 71 Va. Cir. 339, 2006 Va. Cir. LEXIS 152 (Roanoke 2006).

Action taken in this case - the government placing a citizen of the Commonwealth of Virginia into custody based upon nothing more than a "tip" that had no indicia of reliability - could not be endorsed as appropriate. The police officer's actions were not in good faith. Commonwealth v. Balthis, 91 Va. Cir. 311, 2015 Va. Cir. LEXIS 200 (August 16, 2015).

Driveway not within curtilage. - Driveway was not within the curtilage of defendant's home, so constitutional protections relating to search and seizure were not implicated by an officer's discovery of the shell casings in the driveway. Commonwealth v. Marek, 59 Va. Cir. 349, 2002 Va. Cir. LEXIS 374 (Prince William County Aug. 9, 2002).

Inevitable discovery rule. - For the inevitable discovery exception to apply, the Commonwealth must establish: (1) a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that prior to the misconduct the police were actively pursuing the alternative line of investigation. Commonwealth v. Berry, 65 Va. Cir. 393, 2004 Va. Cir. LEXIS 268 (Salem 2004).

Commonwealth bears the burden of establishing that the inevitable discovery exception applies in a case. Commonwealth v. Berry, 65 Va. Cir. 393, 2004 Va. Cir. LEXIS 268 (Salem 2004).

Second search without warrant unacceptable. - Where defendant's vehicle was unlawfully towed and impounded from his backyard and subsequently searched, then four days later - after learning that the vehicle had been seized from defendant's backyard, rather than as a result of a traffic stop - a search warrant was obtained and the vehicle was again searched, defendant's motion to suppress the evidence seized from his vehicle was granted, because the second search with a warrant did not cure the unlawful, warrantless first search that had occurred. Commonwealth v. Berry, 65 Va. Cir. 393, 2004 Va. Cir. LEXIS 268 (Salem 2004).

No private right of action. - This section and Va. Const., Art. I, § 11, are not self-executing; there is not a private right of action under the Virginia Constitution for a claim of unreasonable seizure. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004); Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

Trial court found that Va. Const., Art. I, § 10, did not give a police officer who claimed that other officers forcibly removed him from his home and took him to a police station where he was held against his will a private right of action to sue the City of Norfolk or the police officers for false imprisonment. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Reasonable searches and seizures are not forbidden. - Defendant's motion to suppress evidence located as the result of a search was denied as the police officer, who smelled the odor of marijuana coming from the car in which defendant was a passenger, had the reasonable belief that other illegal drugs were present, as well as guns, and, thus, could ask defendant to step out of the car and frisk defendant; as a result, the cocaine located on defendant during the frisk was found during a valid warrantless search and did not have to be suppressed. Commonwealth v. Webb, 62 Va. Cir. 110, 2003 Va. Cir. LEXIS 73 (Roanoke 2003).

Evidence seized from defendant was suppressed because the Commonwealth had not met the burden of showing that the scope of the seizure of defendant was limited to its underlying justification, her safety during the execution of a search warrant. After the danger passed she should have been released. Commonwealth v. Howard,, 2002 Va. Cir. LEXIS 448 (Norfolk May 24, 2002).

Defendant's motion to suppress was partially denied because: (1) a traffic stop was proper since officers had probable cause to believe that the occupants committed a traffic infraction because the driver turned right through a red light; and (2) defendant's arrest was supported by probable cause since an officer saw in plain view a plastic bag filled with marijuana near defendant. Commonwealth v. Andrews,, 2007 Va. Cir. LEXIS 260 (Prince William County June 1, 2007).

Stop and frisk for weapons was permissible because defendant's behavior, viewed in light of a police officer's training and experience, would give rise to a reasonable suspicion that he could be armed; the officer testified that defendant became very nervous once he stepped out of the car, and based upon the officer's experience, it appeared to him as though defendant was planning to run. Commonwealth v. Wichael, 84 Va. Cir. 83, 2011 Va. Cir. LEXIS 275 (Augusta County Dec. 20, 2011).

Community caretaker exception did not apply. - Defendant's motion to suppress evidence obtained from his vehicle following his arrest was sustained where the arresting deputies conducted both the impoundment and the search with an improper investigatory motive, and thus, it was inappropriate to apply the community caretaker exception to the warrant requirement. Commonwealth v. Haleem, 94 Va. Cir. 583, 2016 Va. Cir. LEXIS 205 (Augusta County Dec. 29, 2016).

Investigatory stop. - Defendant's motion to suppress was denied because a detective's detention of defendant and two other individuals was investigatory, not custodial, as the detective's suspicions and actions were supported by specific and articulable facts, and thereby he could justifiably detain defendant and search an SUV. Commonwealth v. Marshall, 79 Va. Cir. 584, 2009 Va. Cir. LEXIS 197 (Fairfax County Dec. 14, 2009).

Pat-down exceeded acceptable scope of frisk. - Defendant's motion to suppress marijuana a police officer seized from his person was granted because even though the stop and frisk for weapons was permissible under Terry, lifting up defendant's shirt and looking inside his clothing during the pat-down exceeded the acceptable scope of the frisk; the officer's testimony merely disclosed that he saw a bulge and assumed it was a weapon, but a soft bulge in a defendant's waistband was not enough information to justify a conclusion that the item was immediately apparent as contraband. Commonwealth v. Wichael, 84 Va. Cir. 83, 2011 Va. Cir. LEXIS 275 (Augusta County Dec. 20, 2011).

Seizure without probable cause or reasonable suspicion. - Trial court granted defendant's motion to suppress evidence, contraband drugs, that a police officer found as the result of a search of defendant's vehicle, as the officer lacked a reasonable, articulable suspicion that defendant was involved in criminal activity; the officer thus lacked a basis for ordering defendant out of defendant's vehicle or conducting a pat down of defendant for weapons, and defendant's reluctant consent to search the vehicle did not cure the improper seizure because the consent, under the totality of the circumstances, was not voluntarily given. Commonwealth v. Lim, 68 Va. Cir. 526, 2004 Va. Cir. LEXIS 317 (Fairfax County 2004).

Probable cause for warrant existed. - Evidence obtained during the execution of a search warrant was admissible because the affidavit supporting the search warrant for defendant's home met the test for probable cause and thus, the search of defendant's home and the derivative search of the neighbor's attic were permissible. Probable cause for the issuance of the warrant was based on information received from an informant, police confirmation of that information, and defendant's prior criminal record involving drugs. Commonwealth v. Adderley, 74 Va. Cir. 292, 2007 Va. Cir. LEXIS 186 (Virginia Beach 2007).

Probable cause for warrant insufficient. - Magistrate did not have a substantial basis for finding probable cause to issue a search warrant where the affidavit simply stated that the informant observed stolen property in defendant's residence and included no information as to when the informant observed the stolen property, what specific items of stolen property the informant observed, or how the informant knew that the property was stolen. Commonwealth v. Fuller, 78 Va. Cir. 385, 2009 Va. Cir. LEXIS 167 (Norfolk June 17, 2009).

Warrant lacked particularity. - Search warrant lacked any particularity where it merely instructed the officers to seize any and all items or instrumentalities pertaining to the crime of larceny and did not refer to a specific crime or enumerate specific stolen items. Commonwealth v. Fuller, 78 Va. Cir. 385, 2009 Va. Cir. LEXIS 167 (Norfolk June 17, 2009).

Automobile exception to warrant requirement. - Automobile exception to the warrant requirement justified the search and seizure of a moped because probable cause existed to search the moped, the moped was a vehicle, and the moped was mobile at the time it was initially searched; the vehicle exception applied despite relocation of the moped to the police operations center because both probable cause and mobility still obtained at the center. Commonwealth v. Stallings, 95 Va. Cir. 414, 95 Va. Cir. 414, 2017 Va. Cir. LEXIS 75 (Norfolk May 1, 2017).

Law enforcement's opportunity to obtain a warrant is irrelevant under the automobile exception to the warrant requirement; whether a vehicle is searched on private or public property is irrelevant to the vehicle exception to the warrant requirement. Commonwealth v. Stallings, 95 Va. Cir. 414, 95 Va. Cir. 414, 2017 Va. Cir. LEXIS 75 (Norfolk May 1, 2017).

Consent to search by homeowner's daughter. - Consent to search was valid where police reasonably believed that the homeowner's daughter had the authority to consent to the dog sniff. Commonwealth v. Hoa Lam,, 2006 Va. Cir. LEXIS 26 (Fairfax County Jan. 5, 2006).

Consent to search not voluntary. - Granting of defendant's motion to suppress charges under § 18.2-248 was appropriate because the Commonwealth failed to prove that defendant's consent was voluntary. In view of a lieutenant's accusation that defendant was transporting illegal drugs in her vehicle, no reasonable person in defendant's position would have felt free to withhold consent. Commonwealth v. Johnston, 82 Va. Cir. 381, 2011 Va. Cir. LEXIS 196 (Martinsville Mar. 22, 2011).

Consent to search was not tainted. - Defendant's motion to suppress evidence was denied because the police officers' initial entry and search of defendant's residence in response to an alarm call did not violate defendant's Fourth Amendment rights against warrantless searches, and was justified under the exigent circumstances exception to the warrant requirement; as a result, there was no evidence of illegality surrounding the officers' initial entry and search of defendant's residence that would serve to "taint" or otherwise invalidate defendant's later consent to search. Commonwealth v. Swartz, 66 Va. Cir. 513, 2003 Va. Cir. LEXIS 255 (Fairfax County 2003).

Evidence held sufficient for stop of vehicle without warrant. - Officer had a reasonable, articulable suspicion that a driver was under the influence of an intoxicant, justifying a traffic stop based on: (1) the officer witnessing a suspected drug transaction involving the occupants of the car; (2) the driver's failure to signal before turning left in violation of § 46.2-848; and (3) the driver's erratic operation of the vehicle, including crossing into a bike lane. Commonwealth v. Fadeley,, 2004 Va. Cir. LEXIS 133 (Charlottesville Aug. 2, 2004).

Probable cause existed to arrest defendant and conduct a search incident to arrest because there were reasonable grounds for law enforcement to believe a confidential informant's statements were true and, therefore, to rely on that information; the information provided was at least partially verified by another law-enforcement officer, and the informant proved to be reliable because he accurately predicted defendant would be at the designated area and could arrive in a red moped. Commonwealth v. Stallings, 95 Va. Cir. 414, 95 Va. Cir. 414, 2017 Va. Cir. LEXIS 75 (Norfolk May 1, 2017).

Use of drug dog at traffic check point was unconstitutional. - Defendant's motion to suppress marijuana found in his car at a traffic check-point was granted as there was no protocol for the use of a drug dog, thereby giving the officers at the scene unbridled discretion as to which citizens would be subject to a drug dog "search" or "sniff"; thus, the discretion to use or not use and how to use the drug dog was too great to pass constitutional muster. Commonwealth v. Dovel, 61 Va. Cir. 502, 2003 Va. Cir. LEXIS 223 (Rockingham County 2003).

Probable cause for detention. - Driver was not illegally detained after a permissible traffic stop where the owner of the car offered the police officer his driver's license upon request; as there were others in the car, concern for the officer's safety further justified asking the driver to step from the car to discuss the reasons for the traffic stop. Commonwealth v. Fadeley,, 2004 Va. Cir. LEXIS 133 (Charlottesville Aug. 2, 2004).

Probable cause to search vehicle. - Probable cause existed to search a moped for narcotics because law enforcement had probable cause to believe narcotics were at the scene, the conclusion that defendant owned the moped was reasonable, and logic suggests that when narcotics were not found on defendant's person, they likely were located within the moped; probable cause to search the moped continued even though it was transported to the police operations center because law enforcement had exclusive control over the moped. Commonwealth v. Stallings, 95 Va. Cir. 414, 95 Va. Cir. 414, 2017 Va. Cir. LEXIS 75 (Norfolk May 1, 2017).

OPINIONS OF THE ATTORNEY GENERAL

Airport searches. - Fourth Amendment protections are rights attaching to persons that can be asserted only by them either directly or through an association. The Attorney General lacks standing to bring suit against the federal government claiming a violation of the Fourth Amendment for searches conducted at airports. See opinion of Attorney General to The Honorable Robert B. Bell, Member, House of Delegates, 12-046, 2012 Va. AG LEXIS 27 (6/29/2012).

Detention to serve protective order. - A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

I. DUE PROCESS.

A. IN GENERAL.

Referendum process. - The referendum process does not, in itself, violate the Due Process Clause of the Fourteenth Amendment when applied to a zoning ordinance, and the supreme court refused to give any broader interpretation to the Due Process Clause of the Constitution of Virginia. R.G. Moore Bldg. Corp. v. Committee for the Repeal of Ordinance R(C)-88-13, 239 Va. 484 , 391 S.E.2d 587 (1990).

Position of private prosecutor having civil interest in case so infects criminal prosecution with the possibility that private vengeance has been substituted for impartial application of the criminal law, that prejudice to the defendant need not be shown. A conflict of interest on the part of the prosecution in itself constitutes a denial of a defendant's due process rights under this section, and cannot be held harmless error. Cantrell v. Commonwealth, 229 Va. 387 , 329 S.E.2d 22 (1985), cert. denied, 496 U.S. 911, 110 S. Ct. 2600, 110 L. Ed. 2d 280 (1990).

Prosecutor not required to be disqualified based on personal attack by defendant. - Defendant's due process rights were not violated when the trial court overruled defendant's motion to disqualify the Commonwealth's attorney based on the fact that a letter defendant sent to the attorney asserted a grossly offensive personal attack on the attorney and, thus, created a conflict of interest since the attorney assured the court that it had not had an effect on his professional judgment. Powell v. Commonwealth, 267 Va. 107 , 590 S.E.2d 537, 2004 Va. LEXIS 6, cert. denied, 543 U.S. 892, 125 S. Ct. 86, 160 L. Ed. 2d 157 (2004).

Requiring larger license fees from nonresident than from resident laundries not invalid. - A city ordinance requiring a larger license fee from a nonresident laundry than from local laundries was attacked as unconstitutional. The court held that laundries should be supervised, and that the classification was reasonable. Richmond Linen Supply Co. v. City of Lynchburg, 160 Va. 644 , 169 S.E. 554 (1933), aff'd sub nom. National Linen Serv. Corp. v. City of Lynchburg, 291 U.S. 641, 54 S. Ct. 437, 78 L. Ed. 1039 (1934).

Denial of recovery of support by an illegitimate child against the father would not result in a violation of rights guaranteed under § 1 of this article and this section. Brown v. Brown, 183 Va. 353 , 32 S.E.2d 79 (1944).

Failure of city to furnish adequate supply of water for short while was not a deprivation of property without due process, in violation of this section. Stansbury v. City of Richmond, 116 Va. 205 , 81 S.E. 26 (1914).

City's classification of dwellings for garbage collection purposes is reasonable. - A city council could reasonably place mobile home parks, motels and apartment buildings in a different classification from neighborhoods of single-family dwellings for purposes of garbage collection. Sheek v. City of Newport News, 214 Va. 288 , 199 S.E.2d 519 (1973).

Application of § 8.01-250.1 held unconstitutional where asbestos was placed in buildings between 1939 and 1971. - In an action against manufacturers of asbestos products seeking compensatory and punitive damages allegedly sustained in inspecting, analyzing, containing, removing and replacing asbestos-containing products allegedly placed in certain school buildings between 1939 and 1971, application of § 8.01-250.1 was unconstitutional under the due process clause of this section, since the revival statute was designed primarily, not to relieve the hazard to public health, but to relieve budgetary concerns. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325 (1987).

Motor Vehicle Dealer Licenses and Transaction Recovery Fund. - The 1988 amendment to § 46.2-1508, which required a person licensed as a dealer in another state to obtain a certificate of dealer registration from DMV as a prerequisite to selling motor vehicles at wholesale auctions in Virginia, and former Article 3 of Chapter 15, Title 46.2 ( § 46.2-1522 et seq. [now repealed]), the Motor Vehicle Transaction Recovery Fund, do not violate Va. Const., Art. I, § 1 (use and enjoyment of property), this section, Va. Const., Art. IV, § 14 (prohibition against special legislation), or the Commerce Clause of the U.S. Const., Art. I, § 8. Fredericksburg Auto Auction, Inc. v. DMV, 242 Va. 42 , 406 S.E.2d 23 (1991).

Private prosecutor. - Trial court did not violate defendant's due process rights in allowing a private prosecutor, retained by the victim's family, to participate in prosecuting the victim's husband for her murder; though the victim's family paid his fees, he testified that he represented the Commonwealth, not the family. Riner v. Commonwealth, 40 Va. App. 440, 579 S.E.2d 671, 2003 Va. App. LEXIS 287 (2003), aff'd, 268 Va. 296 , 601 S.E.2d 555 (2004).

Because an attorney simultaneously represented the victim in a civil action against defendant and sought to prosecute her, and because the procedural safeguards were not followed that would have ensured the publicly-elected prosecutor remained in control of the case, the trial court erred in failing to disqualify the attorney as a private prosecutor. Price v. Commonwealth, 72 Va. App. 474, 849 S.E.2d 140, 2020 Va. App. LEXIS 269 (2020).

No private right of action. - Because neither Va. Const. art. I, § 1 nor Va. Const. art. I, § 11 is self-executing, there is no self-executing private right of action to enforce equal rights under the Virginia Constitution. Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 2015 U.S. Dist. LEXIS 125230 (E.D. 2015).

Extraneous influence on jury. - Court rejected the petitioner's claim that his rights under the Sixth, Eighth and Fourteenth Amendments, as well as Va. Const., Art. I, §§ 8, 9 and 11, were violated because the jurors were exposed to an extraneous influence, namely a Bible, during the trial. Although the petitioner claimed that at least one unidentified juror carried a Bible during the trial and specifically referred to it during the penalty phase, the court found that the petitioner failed to allege facts that establish that the jurors were "exposed" to a Bible during the course of the trial and, therefore, his claim was speculative. Powell v. Warden of the Sussex I State Prison,, 2005 Va. LEXIS 106 (Nov. 8, 2005).

Due Process Clause requires prosecution to prove beyond a reasonable doubt every element of the charged crime. - Defendant's conviction for administering a massage without a permit in violation of Fairfax, Va., County Code § 38.1-2-1 was reversed because, while the fact that defendant was in a closed room in a massage parlor standing next to a massage table on which a naked man was lying suggested that defendant was not providing a free service, the County failed to prove beyond a reasonable doubt that defendant had received compensation for giving the massage. Kim v. Fairfax County, No. 1347-05-4, 2006 Va. App. LEXIS 46 (Feb. 7, 2006).

Commonwealth failed to prove beyond a reasonable doubt that defendant had received actual notice of being adjudicated as a habitual offender, such that defendant's conviction for driving a motor vehicle after having been declared an habitual offender, in violation of § 46.2-357, could not stand; the Commonwealth did not satisfy defendant's due process right to having each element of the offense proved beyond a reasonable doubt. Bishop v. Commonwealth, 275 Va. 9 , 654 S.E.2d 906, 2008 Va. LEXIS 19 (2008).

Trial court did not err in relying on defendant's two prior convictions for driving under the influence of alcohol to find defendant guilty of defendant's third DUI offense because defendant did not overcome the presumed validity of the two prior DUI convictions that served as predicates for the third offense DUI conviction in that defendant's only argument was limited to the fact a blank on the form conviction orders was unchecked. Greco v. Commonwealth, No. 2121-12-1, 2014 Va. App. LEXIS 125 (Apr. 1, 2014).

Disqualification of prosecutor properly denied. - Trial court did not err in denying defendant's motion to disqualify the entire Commonwealth Attorney's Office because defendant failed to meet her burden of proving that a conflict of interest existed when an assistant Commonwealth's attorney represented her in a maiming charge when the maiming offense was unrelated to the murder charge before the trial court; defendant failed to offer any testimony that a conflict existed or that the assistant obtained privileged information that could have been adverse to her interest, and defendant did not produce any evidence of misconduct, bias, or conflict of interest by the Commonwealth's Attorney's Office that interfered with her receiving a fair trial. Williams v. Commonwealth, No. 1380-09-2, 2010 Va. App. LEXIS 402 (Oct. 19, 2010).

Applied in Smith v. Allen-Bradley Co., 371 F. Supp. 698 (W.D. Va. 1974); Bristol Redevelopment & Hous. Auth. v. Farmbest, Inc., 215 Va. 106 , 205 S.E.2d 406 (1974); Phillips v. Foster, 215 Va. 543 , 211 S.E.2d 93 (1975); Snap-N-Pops, Inc. v. Browning, 432 F. Supp. 360 (E.D. Va. 1977); Yager v. Commonwealth, 220 Va. 608 , 260 S.E.2d 251 (1979); Blue Cross v. Commonwealth, 221 Va. 349 , 269 S.E.2d 827 (1980); Groves v. Cox, 559 F. Supp. 772 (E.D. Va. 1983); Blinder, Robinson & Co. v. SCC, 227 Va. 24 , 313 S.E.2d 652 (1984); Marshall v. Bird, 230 Va. 89 , 334 S.E.2d 573 (1985); Terry v. Mazur, 234 Va. 442 , 362 S.E.2d 904 (1987); Russell County School Bd. v. Anderson, 238 Va. 372 , 384 S.E.2d 598 (1989); Hoffman Family, LLC v. City of Alexandria, 272 Va. 274 , 634 S.E.2d 722, 2006 Va. LEXIS 89 (2006); Bd. of Supervisors of James County v. Windmill Meadows, LLC, 287 Va. 170 , 752 S.E.2d 837, 2014 Va. LEXIS 7 (2014); Grafmuller v. Commonwealth, 290 Va. 525 , 778 S.E.2d 114, 2015 Va. LEXIS 153 (2015).

B. LIFE, LIBERTY OR PROPERTY INTEREST.

Right to life prevails over nebulous liberty interest. - When one parent asserts the child's explicit constitutional right to life as the basis for continuing medical treatment and the other is asserting the nebulous liberty interest in refusing life-saving treatment on behalf of a minor child, the explicit right to life must prevail. In re Baby "K", 832 F. Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 825, 115 S. Ct. 91, 130 L. Ed. 2d 42 (1994).

Subject of Department of Social Services investigation of child sexual abuse. - While a teacher has a liberty interest in pursuing his vocation, he or she is not deprived of that right by the Department of Social Services (DSS) when it makes a finding of "founded" in investigating a complaint of child sexual abuse against the teacher since the teacher can only be removed from his or her position by the school board, not by the DSS, which has no authority to force the school board to do anything; moreover, if the DSS fulfills its duties and follows the proper procedures, the subject of its investigation receives all of the due process to which he or she is entitled. Carter v. Gordon, 28 Va. App. 133, 502 S.E.2d 697 (1998).

Guarantee provides procedural safeguards against government's arbitrary deprivation of interests. - Under the Due Process Clause of both the Fourteenth Amendment to the United States Constitution and this section, the procedural, as opposed to the substantive, due process guarantee exists to provide procedural safeguards against a government's arbitrary deprivation of certain interests. Mandel v. Allen, 889 F. Supp. 857 (E.D. Va. 1995), aff'd, 81 F.3d 478 (4th Cir. 1996).

Due process guarantee does not create constitutionally protected interests. - The procedural due process guarantee does not create constitutionally protected interests; rather, it provides procedural safeguards against government's arbitrary deprivation of certain interests. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759 (1995).

Relationship with federal constitution. - Because federal and Virginia due process protections were coterminous, and plaintiff employee failed to allege facts sufficient to support the deprivation of a liberty or property interest under the federal constitution (an intra-departmental demotion could not implicate a protectible property interest, and the employee could not allege defamation occurring in the course of employment implicating the deprivation of a liberty interest), the employee's state claim was dismissed. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. Va. 2010).

Two-step inquiry when procedural due process challenged. - When procedural due process respecting deprivation of a property interest is challenged, a two-step inquiry is employed. The first inquiry is whether the interest is a property interest protected by procedural due process guarantees; if so, the second is whether the procedures prescribed or applied are sufficient to satisfy the due process fairness standard. McManama v. Plunk, 250 Va. 27 , 458 S.E.2d 759 (1995).

This section provides due process protection to one unlawfully or improperly deprived of property, whether real or personal, and the deprived person may enforce his constitutional right to compensation in a common-law action. Graham v. Mitchell, 529 F. Supp. 622 (E.D. Va. 1982).

And entitles him to notice and opportunity to be heard. - This section of the Constitution means that a person is entitled to notice and opportunity to be heard before an impartial tribunal, before any binding order can be made affecting his right to property. Graham v. Mitchell, 529 F. Supp. 622 (E.D. Va. 1982).

Property interests which may ripen into vested rights. - The due process clause of the Virginia Constitution protects not only rights that have vested, but also substantive property interests which may ripen into vested rights. School Bd. v. United States Gypsum Co., 234 Va. 32 , 360 S.E.2d 325 (1987).

No deprivation of property interest found. - University employee did not allege facts sufficient to suggest that he had a property interest in his position that triggered either federal or state due process protections; the employee was demoted, not terminated, and the demotion did not implicate a protected property interest. The allegation that his position was a five-year appointment was insufficient to rebut the state-law presumption that the position was at-will, especially given that the employee had held the position for more than five years at the time he was removed. Cominelli v. Rector & Bd. of Visitors of the Univ. of Va., 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

Because a city did not deprive a landowner of a vested property interest when the city rezoned the owner's property by a city ordinance upon the annexation of the property by the city, the city did not violate any of the owner's procedural due process rights. The owner did not have a vested right to develop the property according to a revised master plan, or in the continuation of the property's zoning status before annexation. Bragg Hill Corp. v. City of Fredericksburg, 297 Va. 566 , 831 S.E.2d 483, 2019 Va. LEXIS 90 (2019).

Lessee who was granted a lease under § 28.2-603 and related statutes assumed the risk that the waters surrounding the leased grounds would be insufficiently pure to permit the direct harvest of shellfish from them. The limited rights the lessees acquired when leasing state-owned bottomlands doomed their takings claim. The city and sanitation district did not interfere with the limited property rights the lessees had under the leases and, therefore, their takings claim failed as a matter of law. Johnson v. City of Suffolk, 851 S.E.2d 478, 2020 Va. LEXIS 142 (Dec. 10, 2020).

The intent of the General Assembly determines whether a statute will be applied retrospectively, but the general rule of statutory construction is that legislation only speaks prospectively. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988).

So long as constitutional rights and vested interests are not infringed. - The General Assembly can determine whether legislation applies prospectively or retrospectively, subject to the limitation that its enactments may not infringe or impair a constitutionally protected right or vested interest. Booth v. Booth, 7 Va. App. 22, 371 S.E.2d 569 (1988).

This section is applicable to corporations. - The constitutional provision that "no person shall be deprived of his property without due process of law," includes private corporations. Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 (1907).

Prisoner who alleged that theft of his property was caused by the negligence of state officials had the constitutional right to a post-deprivation hearing, and could maintain a common-law action to recover damages for an unlawful taking without due process. Graham v. Mitchell, 529 F. Supp. 622 (E.D. Va. 1982).

Full recovery in tort not a fundamental right. - Although the constitutions of certain states specifically prohibit limitations upon recovery in personal injury actions, the Virginia Constitution contains no such provision. Thus, the right to a full recovery in tort is not a fundamental right under the Virginia Constitution. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part and rev'd in part, 877 F.2d 1191 (4th Cir. 1989).

Medical malpractice statute of limitations upheld. - The medical malpractice statute of limitations for minors, § 8.01-243.1 , which reduced the tolling period for infants with medical malpractice claims by requiring that any such actions brought on their behalf shall be commenced within two years of the date of the last act or omission giving rise to the cause of action except that if the minor was less than eight years of age at the time of the occurrence of the malpractice, he shall have until his tenth birthday to commence an action, did not violate the equal protection and due process clauses of the state and federal Constitutions, and was not special legislation in violation of Va. Const., Art. IV, § 14. Willis v. Mullett, 263 Va. 653 , 561 S.E.2d 705, 2002 Va. LEXIS 57 (2002).

Collateral estoppel for settled claims. - An employer, having acquired a vested right by a noncompensability determination on an occupational disease claim, may assert the doctrine of collateral estoppel to prevent the claimant from asserting that the settled claim becomes compensable based upon a change in the statute. Clinchfield Coal Co. v. Barton, 6 Va. App. 576, 371 S.E.2d 39 (1988).

A statute that authorized a life tenant to dispose of a remainderman's property interest in a tobacco quota would be unconstitutional as a violation of the due process clauses of the Fifth Amendment to the Constitution of the United States and this section. Jeffress v. Stith, 241 Va. 313 , 402 S.E.2d 14 (1991).

Family conference did not implicate constitutional rights. - Family conference between a parent's family and the Alexandria Department of Human Services (DHS) was not a criminal interrogation implicating the constitutional right to counsel, or a custodial event requiring DHS to provide Miranda-like warnings to parents who might later be subject to a termination proceeding; further, due process principles did not require DHS to abide by the family's agreement that one of the parent's aunts adopt the parent's daughter. Clayton v. Alexandria Dep't of Human Servs., No. 2819-07-4, 2008 Va. App. LEXIS 339 (July 22, 2008).

No due process violation shown. - Trial court did not violate defendant's due process rights by requiring defendant to show that defendant possessed or manufactured explosive materials or devices for an educational purpose, a scientific purpose, or any lawful purpose, because the last clause of § 18.2-85, constituted a statutory defense for which defendant bore burden of providing supporting evidence. Flanagan v. Commonwealth, 58 Va. App. 681, 714 S.E.2d 212, 2011 Va. App. LEXIS 274 (2011).

Section 9.1-902 's reclassification of carnal knowledge of a minor as a "sexually violent offense," which retroactively subjected an offender to heightened registration requirements, was not a violation of procedural due process, as convicted sex offenders had no fundamental right to rely on the civil legislative scheme in existence at the time of pleading guilty. Smith v. Commonwealth, 286 Va. 52 , 743 S.E.2d 146, 2013 Va. LEXIS 76 (2013).

Developer had no constitutional vested right in the continuation of a road because the county owned the road in fee simple, and the developer had no property right in the road once it was dedicated; the developer had a statutory right to construct the road within five years, and it forfeited that right through inaction. Loch Levan Land Ltd. P'ship v. Bd. of Supervisors, 297 Va. 674 , 831 S.E.2d 690, 2019 Va. LEXIS 93 (2019).

C. NOTICE AND OPPORTUNITY TO BE HEARD.

Requirements of due process. - All the authorities agree that due process of law requires that a person shall have reasonable notice and a reasonable opportunity to be heard before an impartial tribunal, before any binding decree can be passed affecting his right to liberty or property. Ward Lumber Co. v. Henderson-White Mfg. Co., 107 Va. 626 , 59 S.E. 476 (1907); Commission of Fisheries v. Hampton Rds. Oyster Packers & Planters Ass'n, 109 Va. 565 , 64 S.E. 1041 (1909).

Assisted living facility operator's complaint under 42 U.S.C.S. §§ 1981, 1982, 1983, 2000-d, U.S. Const. amends. V and XIV, and Va. Const., Art. I, §§ 1 and 11, that the facility's license was revoked due to his race, was barred by the statute of limitations in subsection A of § 8.01-243 , because his claims accrued when he had no reasonable expectation that he would receive further information concerning the extent of his injury, which occurred more than two years before he filed his complaint. Smith v. Goodwin,, 2003 U.S. Dist. LEXIS 22133 (E.D. Va. May 2, 2003).

Denial of a mother's continuance motion did not violate the mother's due process rights because the mother had actual notice of the hearing but chose not to attend for reasons not apparent on the record; under such circumstances, the circuit court did not violate the mother's due process rights by proceeding in her absence. Hughes v. Hughes, No. 1530-10-1, 2011 Va. App. LEXIS 85 (Ct. of Appeals Mar. 8, 2011).

No reversible error occurred where a motion to appoint a special prosecutor was not made in writing; because appellant had notice of entry of the order and an opportunity to object and make arguments, he received all of the process that was due. Moreover, judicial approval was not required to employ a special assistant prosecutor, and, even if a court order was required, good cause existed to excuse the Commonwealth's failure to submit a written motion. Tucker v. Commonwealth, No. 1527-12-2, 2013 Va. App. LEXIS 192 (Ct. of Appeals July 2, 2013).

Trial court erred in denying a husband's motion for reconsideration because his due process rights were violated when he was not given an opportunity to testify, present evidence, and cross-examine witnesses about his retirement account and his 2012 distribution. Menninger v. Menninger, 64 Va. App. 616, 770 S.E.2d 232, 2015 Va. App. LEXIS 121 (2015).

Father's due process rights were not violated in this custody matter; he had reasonable notice of the hearings and no further notification was necessary, given that he filed a response saying that he would not answer the mother's discovery requests, and he acknowledged receipt of the notice of her motions in a letter to the trial court. Stephens v. Chrismon, No. 1932-15-1, 2016 Va. App. LEXIS 165 (Ct. of Appeals May 17, 2016).

Father's due process rights were not violated because the father had notice of each hearing and had the opportunity to be heard, he presented evidence and argument, and the trial court listened to all evidence and argument prior to making its rulings. Potas v. Potas, No. 0939-17-1, 2017 Va. App. LEXIS 339 (Dec. 27, 2017).

Regarding preliminary hearings. - Defendant's conviction for assaulting a police officer in violation of § 18.2-57 had to stand, as defendant was not denied the right to a preliminary hearing on that charge after the district court terminated the charge by entering a nolle prosequi officer and the Commonwealth then obtained a direct indictment for the same offense and proved its case in the trial court. Since the case had been terminated in the district court once the nolle prosequi order was entered, defendant was not under actual arrest for that charge as required by the preliminary hearing statute, § 19.2-218, and not holding the preliminary hearing was a statutory, not constitutional, matter, which meant that defendant's due process rights under Va. Const., Art. I, § 11 were not violated because a preliminary hearing was not held. Wright v. Commonwealth, 52 Va. App. 690, 667 S.E.2d 787, 2008 Va. App. LEXIS 509 (2008).

Summary contempt. - Summary contempt order violated defendant's due process rights because all of the underlying events occurred outside open court and several of the events occurred outside the issuing judge's presence and thus, defendant was entitled to prior notice and an opportunity to be heard. Harrington v. Commonwealth, No. 0522-09-4, 2010 Va. App. LEXIS 157 (Apr. 27, 2010).

An opportunity to contest validity of tax is due process for taxpayer. - The character of the tax - that is, whether it be a property or a license tax - is immaterial. Notice to the taxpayer previous to the assessment is not required as to either. All that is essential in such cases to constitute due process of law is that the law shall afford the taxpayer an opportunity to contest its validity and to show that it is an illegal exaction before it is enforced or his liability therefor is irrevocably fixed. Commonwealth v. Carter, 126 Va. 469 , 102 S.E. 58 (1920).

As is opportunity in court for relief from improper taxation. - If the tax statute or the general laws of the State provide an opportunity in the courts for the correction of erroneous assessments, and for relief from improper taxation, this constitutes due process of law. Commonwealth v. Carter, 126 Va. 469 , 102 S.E. 58 (1920).

A county ordinance imposing a tax on unlicensed automobiles, but containing certain exceptions, including vehicles of servicemen on active duty, vehicles stored in structures, vehicles in public landfills and automobile graveyards and vehicles stored at or by direction of any governmental authority, did not deny due process. Duke v. County of Pulaski, 219 Va. 428 , 247 S.E.2d 824 (1978).

Issuance by a legislative committee of subpoena duces tecum ex parte violated no constitutional rights of the intended witnesses. The normal method of testing a subpoena duces tecum, issued without notice, by motion to quash or vacate afforded appellants full opportunity to be heard before final determination of the matter and satisfied the requirements of due process. NAACP v. Committee on Offenses Against Admin. of Justice, 199 Va. 665 , 101 S.E.2d 631, vacated as moot, 358 U.S. 40, 79 S. Ct. 24, 3 L. Ed. 2d 46 (1958).

Former § 4-80.2, dealing with the cancellation or termination of alcohol distribution agreements, is void for vagueness and in violation of this section. Vintage Imports, Ltd. v. Joseph E. Seagram & Sons, 409 F. Supp. 497 (E.D. Va. 1976). As to the Beer Franchise Act, see § 4.1-500 et seq.

Ordinance not providing for judicial review, dealing with granting of license, held invalid. - City ordinance requiring license to operate billiard saloon or poolroom, and providing that the license should be a personal privilege and should be granted only upon the order of the city manager, was held to violate this section by reason of its failure to provide for notice and hearing by undertaking to make the determination of the city manager final and unreviewable, and by not providing for a judicial review thereof. Assaid v. City of Roanoke, 179 Va. 47 , 18 S.E.2d 287 (1942).

Due process as to abatement of nuisances. - Even in those cases where the nuisance may not be summarily abated without notice to the owner of the property, the notice to the owner of the proceeding and an opportunity to be heard before a mere ministerial officer or person engaged in abating the nuisance, before the actual destruction of the property, satisfies the constitutional requirement. Bowman v. Virginia State Entomologist, 128 Va. 351 , 105 S.E. 141 (1920).

The constitutional guaranty of due process of law does not in any case of the abatement of a public nuisance require a judicial investigation. Bowman v. Virginia State Entomologist, 128 Va. 351 , 105 S.E. 141 (1920).

Virginia may provide for substituted service upon former residents of the State in actions arising from acts done in the State during the period of their residence. North River Ins. Co. v. Davis, 237 F. Supp. 187 (W.D. Va. 1965), aff'd, 392 F.2d 571 (4th Cir. 1968).

Notice and comment provisions for agency rule promulgation hearings. - The purpose of notice and comment provisions are to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Such notice and comment provisions clearly contemplate that an agency may wish to alter its proposal after receiving public comment. Since possible change in the regulation is the very reason for the public comment, a party is not denied due process merely because the proposed regulation was not an accurate forecast of the precise action which the agency will take upon the subjects mentioned in the notice of hearing. American Bankers Life Assurance Co. v. Division of Consumer Counsel, 220 Va. 773 , 263 S.E.2d 867 (1980).

The State Corporation Commission is not required to provide additional notice and opportunity for comment where the changes in the promulgated rule, even if substantial, do not enlarge the proposed rule's subject matter, and are a logical outgrowth of the public comments received. American Bankers Life Assurance Co. v. Division of Consumer Counsel, 220 Va. 773 , 263 S.E.2d 867 (1980).

Virginia State Bar Disciplinary Board. - The Virginia State Bar Disciplinary Board improperly allowed the amendment of a statement in a certification against an attorney after he had admitted the statement's correctness; the amended charge was tantamount to a new charge without notice, review by the district committee, or opportunity to be heard, and the attorney was denied the procedural protections of Va. Sup. Ct. R. pt. 6, § IV, R. 13. Pappas v. Va. State Bar, 271 Va. 580 , 628 S.E.2d 534, 2006 Va. LEXIS 51 (2006).

Notice regarding probation violation hearing. - Inmate's due process rights were not violated because the inmate received written notice of the grounds the circuit court relied upon for its conclusion that the inmate violated the conditions of probation; prior to the probation violation hearing, the inmate's probation officer gave the inmate a major violation report, which listed each violation. Price v. Commonwealth, 51 Va. App. 443, 658 S.E.2d 700, 2008 Va. App. LEXIS 166 (2008).

Where a trial court holds a hearing to determine the question of support payments, and one of the parties requests an opportunity to be present, to be heard, and to cross-examine adversary witnesses, if any, due process requires that the court afford the litigant that opportunity either by hearing the evidence itself, referring the case to a commissioner, or ordering that evidence be taken by depositions. Burts v. Burts, 227 Va. 618 , 316 S.E.2d 745 (1984).

A hearing on determining the location of a public road is not essential to due process under the federal and state Constitutions. Stewart v. Fugate, 212 Va. 689 , 187 S.E.2d 156 (1972).

Court need not exercise cross-examination opportunity for litigant. - Although a trial court must afford a litigant an opportunity to cross-examine a witness, it is not required to exercise that opportunity for the litigant. It is not the responsibility of the court to schedule the litigant's depositions, or to subpoena the witnesses. Venable v. Venable, 2 Va. App. 178, 342 S.E.2d 646 (1986).

Court not required to appoint DNA expert for indigent defendant. - Denial of funds for DNA expert did not violate defendant's constitutional right to due process; defendant was not constitutionally entitled to all the experts a non-indigent defendant might afford, defendant failed to show a "particularized need" for appointment of an expert, and defendant had an opportunity to present defendant's claim fairly within the adversary system. Branche v. Commonwealth, No. 0912-05-2, 2006 Va. App. LEXIS 174 (May 9, 2006).

Imposition of a non-participation sanction against the defendant in a divorce proceeding comported with fundamental fairness and was consistent with due process of law. Fox v. Fox, No. 0721-97-4, 1998 Va. App. LEXIS 157 (Ct. of Appeals March 17, 1998).

Administrative procedures. - Where a store relied to its detriment on subpoenas issued to witnesses (who failed to appear) by the Board and conceded that the Board had sufficient evidence to find an alcoholic beverage license violation, the store was not denied due process. 7-11, Inc. v. Va. Alcoholic Bev. Control Bd., No. 2740-02-4, 2003 Va. App. LEXIS 324 (Ct. of Appeals June 3, 2003).

Real estate appraiser was not deprived of her constitutional due process rights at an informal license revocation hearing because under § 2.2-4019, she had no statutory right to cross-examine witnesses, and there was no Sixth Amendment right to cross-examination in a civil administrative proceeding. Haley v. Commonwealth, No. 0014-06-4, 2006 Va. App. LEXIS 441 (Ct. of Appeals Oct. 3, 2006).

Circuit court erred in suspending the revocation of a real estate agent's license because the Real Estate Board of the Commonwealth of Virginia did not violated the agent's procedural due process rights when a reasonable reading of the initial notice clearly indicated that the agent's prior criminal record would be before the Board and that it was actually required to consider it; the initial notice set forth the agent's rights pursuant to the Virginia Administrative Process Act, subsection A of § 2.2-4019, the grounds for disciplinary actions under 18 VAC § 135-20-155, the actual language of § 54.1-204, and the fact that the Board was required to consider the provisions of § 54.1-204 in making its determination. Commonwealth v. DeLapp, No. 0258-10-1, 2010 Va. App. LEXIS 405 (Ct. of Appeals Oct. 19, 2010).

Circuit court did not err in affirming the decision of the Virginia Board of Nursing denying an applicant's petition to be a Certified Nurse Aide because the applicant was afforded due process since she was given reasonable notice of the hearing regarding the charges of neglect and finding of misappropriation of patient property and a meaningful opportunity to be heard in the hearing; 18 VAC § 90-25-80 did not create an irrebuttable presumption that violated the applicant's due process rights because the applicant had multiple findings of neglect and a finding of misappropriation of patient property on her record. Bamaiyi v. Va. Bd. of Nursing, No. 1524-12-1, 2013 Va. App. LEXIS 142 (Ct. of Appeals May 7, 2013).

Statutes and regulations of the Virginia Board of Nursing did not violate an applicant's due process and equal protection rights because they applied to all persons seeking certification; the applicant, like everyone else seeking certification by endorsement, was subject to the Board's statutes and regulations. Bamaiyi v. Va. Bd. of Nursing, No. 1524-12-1, 2013 Va. App. LEXIS 142 (Ct. of Appeals May 7, 2013).

Termination of parental rights. - Admission of the court-appointed special advocate reports pursuant to § 9.1-153 in the termination of parental rights proceeding against the father did not violate the father's procedural due process rights, as the father was afforded all the process he was due when the trial court held an extensive two-day hearing and his parental rights were terminated only after the trial court determined that the county welfare agency's petition to terminate was supported by clear and convincing evidence. Holley v. Amherst County Dep't of Soc. Servs., No. 3397-02-3, 2003 Va. App. LEXIS 330 (Ct. of Appeals June 10, 2003).

When the father appeared before the circuit court, the Juvenile and Domestic Relations District Court's ruling had been annulled, and, at that point, the father had approximately eight months' notice of the intention of the Department of Social Services to change the goal to adoption and termination of his parental rights; thus, the father had sufficient notice of the change, and his due process rights were not violated. Sabir v. Roanoke City Dep't of Soc. Servs., No. 1866-18-3, 2019 Va. App. LEXIS 126 (May 28, 2019).

Protective orders. - No violation of due process occurred when the circuit court adjudicated protective orders because the guardian ad litem had notice of the hearing and the opportunity to be heard; both protective orders were properly before the circuit court by virtue of the appeal filed by the guardian ad litem from the orders entering the permanency planning order and the protective orders, and thus, the circuit court had the power to adjudicate the appeal and to dissolve the protective orders. Dover v. Alexandria Dep't of Cmty. & Human Servs., No. 1625-12-4, 2013 Va. App. LEXIS 135 (Ct. of Appeals Apr. 30, 2013).

Substituted service not defective. - Substituted service on a corporation was not defective because the language of subsection B of § 8.01-329 reflected a legislative intent to serve process at a single address, not multiple addresses; the record showed that the corporation received mail at the post office box shown on the affidavit for substituted service, that the university mailed correspondence by certified mail, return receipt requested, to the corporation at that address, that both the corporation's president and general manager received or signed the certification of mailing accompanying correspondence from the university, and that the corporation used both the post office box and the physical address during its contractual relationship with the university. This demonstrated that the address the university identified on the affidavit was reasonably calculated to provide notice to the corporation and was not unconstitutional. Va. Polytechnic Inst. & State Univ. v. Prosper Fin. Inc., 284 Va. 474 , 732 S.E.2d 246, 2012 Va. LEXIS 163 (2012).

Release of appeal bond to appellee. - Where a father participated in the hearing in which his child support arrearage was initially determined, and unsuccessfully appealed that ruling, as the trial court on remand allowed his counsel to argue about the arrearage, the father's due process rights were not violated when the trial court ordered the release of most of his appeal bond to the mother, to be applied toward the arrearage, her attorneys' fee award, and the interest on those amounts. Zedan v. Westheim, 62 Va. App. 39, 741 S.E.2d 792, 2013 Va. App. LEXIS 145 (2013).

D. ANTI-DISCRIMINATION CASES.

This provision prohibits invidious, arbitrary discrimination upon the basis of sex. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707 (1973).

It is no broader than the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707 (1973).

In cases involving allegations that statutes violate both Va. Const., Art. 1, § 11 and the equal protection clause of the federal constitution, standards of constitutionality developed under federal law are applied, and a separate standard is neither stated nor applied for resolution of the challenge under state law. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

The antidiscrimination clause in this section is no broader than the equal protection clause of the Fourteenth Amendment to the United States Constitution. Shaheed v. Winston, 885 F. Supp. 861 (E.D. Va. 1995), aff'd, 161 F.3d 3 (4th Cir. 1998).

Virginia Constitution contains no equal protection clause as such; equal protection rights are guaranteed by the antidiscrimination clause in this section, and the prohibitions against special legislation in Va. Const., Art. IV, § 14. Neither clause provides stronger protection than the equal protection clause of the Fourteenth Amendment to the United States Constitution. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part and rev'd in part, 877 F.2d 1191 (4th Cir. 1989).

Virginia Const., Art. I, § 11 is no broader than the equal protection clause of U.S. Const., Amend. XIV and the federal rational basis standard of constitutionality is applied in considering a challenge under the Virginia provision, even though the Virginia provision, unlike the federal equal protection clause, identifies gender as a protected class. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Single-sex education as violation of equal protection. - Virginia held to violate equal protection with respect to male-only admission policy of Virginia Military Institute; proposed remedy of separate women's institute at private women's college held not to cure constitutional violation. United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996).

Supreme Court of Virginia has never held that due process clause of Virginia Constitution gives broader rights than due process clause of United States Constitution. On the contrary, that court has held that the two equal protection clauses give identical rights. Therefore, where plaintiff has not stated a claim under the federal constitution, his claim under the Virginia Constitution must also be denied. Leftwich v. Bevilacqua, 635 F. Supp. 238 (W.D. Va. 1986).

Gender discrimination. - In the 1995 amendments to the Virginia Human Rights Act (VHRA), the Legislature eliminated the availability of common-law wrongful termination actions based on any public policy that is contained in VHRA. Therefore, although Article I, § 11 expresses the Commonwealth's policy against gender discrimination, any claim against an employer based on such discrimination must be brought under Title VII, the VHRA, or any other state statute that specifically provides for such a cause of action - but not as a common-law wrongful discharge claim. McCarthy v. Texas Instruments, Inc., 999 F. Supp. 823 (E.D. Va. 1998).

Where a statute is based on a reasonable classification that bears a rational relationship to the objective of the State, there is no impermissible discrimination under the state Constitution. Archer v. Mayes, 213 Va. 633 , 194 S.E.2d 707 (1973).

Legislative classifications are not required to be perfect. Sheek v. City of Newport News, 214 Va. 288 , 199 S.E.2d 519 (1973).

A classification will not be held to be unconstitutional merely because it results in some inequality or some discrimination. Duke v. County of Pulaski, 219 Va. 428 , 247 S.E.2d 824 (1978).

Equal protection. - If a challenger to a legislative redistricting plan, on the basis of race, meets its evidentiary burden, the electoral district in issue is subjected to strict scrutiny review, rather than a rational basis test, because the legislative action was taken on the basis of race, a suspect category, and, under the strict scrutiny standard, the defendant must show that the district's design was the result of a compelling governmental purpose and was narrowly tailored to achieve that purpose. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Legislative body has discretion to exercise the political judgment necessary to balance competing interests in creating redistricting plans, and courts must exercise extraordinary caution in determining that an electoral district was motivated by racial, not political, interests when there is a high correlation in the voting age population between race and political affiliation. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Issue of narrow tailoring of a voting district in a manner reasonably necessary to comply with federal requirements of the Voting Rights Act, 42 U.S.C.S. §§ 1971 through 1974(e), is part of the strict scrutiny test, a test not applicable until after a determination is first made that race was the predominant factor in drawing the district. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

In a redistricting challenge, in the absence of specific evidence in a specific district, pattern evidence alone cannot sustain a trial court's finding of racial discrimination in the creation of a voting district. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

A systematic, intentional discrimination, by those administering the tax system is a denial of due process. - A systematic, intentional discrimination, by those administering the tax system of a state, whether as directed by statute or contrary to statute, against a person, by an assessment of the property of such person at a higher rate of valuation than that applied to the same kind of property of other persons whose property is taxed in the same jurisdiction, is a denial to such person of due process of law and the equal protection of the laws guaranteed to him by the state and federal Constitutions. Union Tanning Co. v. Commonwealth, 123 Va. 610 , 96 S.E. 780 (1918).

But where property is undervalued and one is made to pay correct assessment, this is not a violation of due process. - Where there has been no discrimination between persons or classes of persons, but the property of the like kind of all persons in a given jurisdiction has been undervalued in its assessment for taxation contrary to law, a correction made of such assessment of any individual property owner according to law, is not a violation of the constitutional provisions as to due process of law or the equal protection of the laws, and evidence in a proceeding to correct an erroneous assessment that the property was assessed on a higher scale of valuation than other like property was properly excluded. Union Tanning Co. v. Commonwealth, 123 Va. 610 , 96 S.E. 780 (1918).

For the legislature to divest one of a vested right under a decree is to deprive such person of his property without due process of law. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

Mere rendition of decree gives no vested rights. - A vested right is defined as a right, so fixed, that it is not dependent on any future act, contingency or decision to make it more secure. Tested by this definition, parties in favor of whom a decree has been rendered have no vested right at the time of the rendition of the decree. Their right is not fixed in the sense that it is settled. It is an inchoate right, which becomes vested upon the happening of one of two events, viz., an affirmance of the decree or the expiration of time allowed for an appeal. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

Gerrymandering allegations. - Only residents of districts allegedly racially gerrymandered, in violation of Va. Const., Art. I, § 11, or non-residents showing specific evidence of a particularized injury, have standing to challenge the legislature's redistricting plan. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Common-law necessaries doctrine held invalid. - The common-law necessaries doctrine, which makes a husband responsible for necessities provided to his spouse, but which does not impose a similar obligation on the wife, contains a gender-based classification and is violative of this section and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. It is not substantially related to the achievement of an important governmental objective. Schilling v. Bedford County Mem. Hosp., 225 Va. 539 , 303 S.E.2d 905 (1983).

Cause of action for sex discrimination. - There is a private cause of action against the government of Virginia under the provision of this section which prohibits sex discrimination. Barlow v. AVCO Corp., 527 F. Supp. 269 (E.D. Va. 1981).

Use of a person's race or national origin to justify a vehicle stop to investigate drug trafficking is contrary to the Constitution of Virginia and the fourteenth amendment of the United States Constitution, and it violates the reasonableness requirement of the fourth amendment of the United States Constitution. Lowery v. Commonwealth, 9 Va. App. 314, 388 S.E.2d 265 (1990).

Presumption arising in favor of mother's choice for infant's fate. - Where parents of infant born with anencephaly disagreed over whether or not to continue medical treatment for her, the constitutional and common law presumption had to be that mother was the appropriate decision maker based on mother's "natural bonds of affection" and the relative noninvolvement of the infant's biological father. This presumption arises from the explicit guarantees of a right to life in the United States Constitution, Amendments V and XIV, this section, and section 1 of Article 1 of the Virginia Constitution. In re Baby "K", 832 F. Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 825, 115 S. Ct. 91, 130 L. Ed. 2d 42 (1994).

Equal protection claim denied. - Where it was determined that the removal of religious materials posted in a classroom did not violate a teacher's right to freedom of speech since classroom walls are intended for unprotected curricular speech, and the teacher contended that the school denied the teacher equal protection of the law by only removing religious materials, the recasting of the teacher's freedom of speech claim as an equal protection claim based on alleged discrimination against the teacher's viewpoint was unavailing. Lee v. York County Sch. Div., 418 F. Supp. 2d 816, 2006 U.S. Dist. LEXIS 7114 (E.D. Va. 2006), aff'd, 484 F.3d 687, 2007 U.S. App. LEXIS 10139 (4th Cir. Va. 2007).

II. IMPAIRMENT OF CONTRACTS.

Contract clause does not operate to obliterate state's police power. Working Waterman's Ass'n v. Seafood Harvesters, Inc., 227 Va. 101 , 314 S.E.2d 159 (1984).

Police power is paramount to contract rights. - The proscription against enacting statutes that impair the obligation of contracts does not prevent the State from exercising power that is vested in it for the common good, even though contracts previously formed may be affected thereby. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals. Working Waterman's Ass'n v. Seafood Harvesters, Inc., 227 Va. 101 , 314 S.E.2d 159 (1984).

One whose rights are subject to state restriction, cannot remove them from the power of the State by making a contract about them. Working Waterman's Ass'n v. Seafood Harvesters, Inc., 227 Va. 101 , 314 S.E.2d 159 (1984).

The legislature may change rules of procedure except as restrained by the Constitution. Pine v. Commonwealth, 121 Va. 812 , 93 S.E. 652 (1917).

And it is within the power of the legislature to shorten the period of limitation on an existing contract, leaving always a reasonable time within which to invoke a remedy for its breach, or to prolong the period of limitation where the right to plead it has not accrued. Smith v. Northern Neck Mut. Fire Ass'n, 112 Va. 192 , 70 S.E. 482 (1911).

But for the legislature to divest one of a vested right under a decree is to violate this section as to the impairment of the obligation of contract. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

A vested right is defined as a right so fixed that it is not dependent on any future act, contingency or decision to make it more secure. Tested by this definition, parties in favor of whom a decree has been rendered have no vested right at the time of the rendition of the decree. Their right is not fixed in the sense that it is settled. It is an inchoate right, which becomes vested upon the happening of one of two events, viz., an affirmance of the decree or the expiration of the period of time in which to take an appeal. Kennedy Coal Corp. v. Buckhorn Coal Corp., 140 Va. 37 , 124 S.E. 482 (1924).

It is settled law that a statute in force at the date of a contract is an element of it as to its construction and binding force or obligation, as much as if the written contract expressly so declared. S.H. Hawes & Co. v. William R. Trigg Co., 110 Va. 165 , 65 S.E. 538 (1909), modified on other grounds sub nom. United States v. Ansonia Brass & Copper Co., 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107 (1910).

Ordinance holding property owner liable for water consumed by tenant, irrespective of contract, invalid. - An ordinance which seeks to make the owner of premises personally liable, irrespective of contract, for water consumed upon the owner's premises by a lessee thereof, is repugnant to the section in that it deprives such owner of his property without due process of law, unless a lien is given on the premises by statute or there is, at least, some statutory authority therefor by virtue of the charter or otherwise. Etheredge v. City of Norfolk, 148 Va. 795 , 139 S.E. 508 (1927).

Retroactive application of law did not breach plea agreement. - As § 9.1-902 's reclassification of carnal knowledge of a minor as a "sexually violent offense," which retroactively subjected a convicted sex offender to heightened registration requirements, was an exercise of the state's regulatory police power, the Commonwealth's retroactive enforcement of those requirements did not breach its plea agreement with the offender or violate Va. Const. art. I, § 11 and § 1-239 . Smith v. Commonwealth, 286 Va. 52 , 743 S.E.2d 146, 2013 Va. LEXIS 76 (2013).

Effect of amendments to § 20-109. - Where the parties executed a spousal support agreement, the subsequently enacted subsection A of § 20-109, which barred support to a former spouse involved in a cohabitation relationship analogous to marriage, did not apply retroactively to the agreement, which did not otherwise bar cohabitation; to apply subsection A of § 20-109 retroactively would have amounted to an unconstitutional impairment on the former wife's vested contractual right pursuant to Va. Const., Art. I, § 11. Baldwin v. Baldwin, 44 Va. App. 93, 603 S.E.2d 172, 2004 Va. App. LEXIS 472 (2004).

Effect of 1972 amendments to §§ 20-109 and 20-109.1. - The wife's right to alimony did not depend alone upon the final decree of divorce. Instead, her right arose from a property settlement agreement approved and confirmed by the chancellor in the final divorce decree. Such an agreement created vested property rights in the parties by virtue of the judicial sanction and determination of the court; it was a final adjudication of the property rights of the parties. It could not be abrogated by subsequent legislative action found in the 1972 amendments to §§ 20-109 and 20-109.1. Thus the 1972 amendment to each of those sections as applied to the property settlement in the instant case violated the impairment of contract clauses of both the federal and state Constitutions to the extent that the amendments were applied to the property agreement entered into prior to the amendments. Shoosmith v. Scott, 217 Va. 290 , 227 S.E.2d 729 (1976), aff'd on rehearing, 217 Va. 789 , 232 S.E.2d 787 (1977).

Act held not to violate this section. - An act of assembly (Acts 1893-4, p. 513, now §§ 59.1-108 through 59.1-115), enacted to protect the owners of timber and logs from depredation was held not in conflict with the provisions of this section. Hurley v. Hurley, 110 Va. 31 , 65 S.E. 472 (1909).

Sections unconstitutional. - Former § 4-118.27 (see now § 4.1-406 ), which takes away any discretionary right a supplier might have had to terminate an at-will contract and former § 4-118.38 (see now § 4.1-402 ), which forbids a supplier's exercise of any such contractual right in the six-month period before the Virginia Wine Franchise Act became effective, are provisions that are not proper exercise of the police power but simply an effort to protect a small group of wholesalers from possible economic loss and are invalid as a violation of the Contract Clause, Va. Const., Art. I, § 11. Heublein, Inc. v. Department of ABC, 237 Va. 192 , 376 S.E.2d 77 (1989).

III. TAKING OR DAMAGING PRIVATE PROPERTY FOR PUBLIC USE.

A. GENERALLY.

This section was adopted as a guaranty in favor of all private property. - The very language employed at once announces that it is not any particular classes of individuals or corporations against which the constitutional provision is directed, but that it was adopted as a guaranty in favor of all private property by whatsoever instrumentality taken "or damaged" for public uses. Nelson County v. Loving, 126 Va. 283 , 101 S.E. 406 (1919).

State procedure must be exhausted first. - When a state provides an adequate procedure for obtaining just compensation, a property owner cannot claim a violation of the federal provision until it has used the state procedure and been denied just compensation. Pasquotank Action Council, Inc. v. City of Va. Beach, 909 F. Supp. 376 (E.D. Va. 1995).

Relationship with other laws. - Section 8.01-187 is not the exclusive remedy for claimants making an inverse condemnation claim against a political subdivision of the Commonwealth. The provisions of Va. Const., Art. I, § 11 are self-executing. The enactment of § 8.01-187 does not change that analysis or evidence an intent on the part of the General Assembly to limit the right to make the constitutional takings claim. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

Circuit court erred in holding that § 8.01-187 constituted an inverse condemnation and claimant's exclusive remedy against a municipal corporation where the provisions of Va. Const., Art. I, § 11 were self-executing and § 8.01-187 disturbed no vested rights and created no new obligation. Section 8.01-187 merely supplied another remedy to enforce existing rights. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

As a convicted sex offender did not have any vested contractual rights with respect to the registration requirements in effect when he entered into his plea agreement, § 9.1-902 's subsequent reclassification of his conviction of carnal knowledge of a minor as a "sexually violent offense," which subjected him to more stringent sex offender registration requirements, was not an unconstitutional taking under Va. Const. art. I, § 11. Smith v. Commonwealth, 286 Va. 52 , 743 S.E.2d 146, 2013 Va. LEXIS 76 (2013).

The legislature has ample power to provide for the forfeiture of property employed in defiance of the laws of the State. Commonwealth v. One 1970, 2 Dr. H.T. Lincoln Auto., 212 Va. 597 , 186 S.E.2d 279 (1972).

But the provisions as to taking, or damaging, private property have no relation to a forfeiture of property imposed upon an owner who has been convicted of using the same for unlawful and immoral purposes. Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 (1921).

The legislature cannot authorize the taking of private property for private use. Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98 , 43 S.E. 194 (1903); Boyd v. C.L. Ritter Lumber Co., 119 Va. 348 , 89 S.E. 273 (1916).

Provision is only applicable to private property for public use. - It is illogical for a state to "take" property from itself and then owe itself compensation; therefore the takings provision applies only to private property taken for public use. Continental Cas. Co. v. Town of Blacksburg, 846 F. Supp. 486 (W.D. Va. 1994).

This provision has no application to a private corporation without the power of eminent domain which opens a street on its own property. Raleigh Court Corp. v. Faucett, 140 Va. 126 , 124 S.E. 433 (1924).

Private property cannot be taken without just compensation. - Under this section and the eminent domain statutes private property cannot be taken or damaged even for a public use without just compensation. C & O Ry. v. Ricks, 146 Va. 10 , 135 S.E. 685 (1926).

Under this section landowners' private property may not be taken for public use without just compensation. State Hwy. & Transp. Comm'r v. Linsly, 223 Va. 437 , 290 S.E.2d 834 (1982).

Nor damaged without just compensation. - Under the present Constitution it is unlawful to damage private property for a public use without just compensation, just as it was unlawful theretofore to take private property for a public use without compensation. Swift & Co. v. City of Newport News, 105 Va. 108 , 52 S.E. 821 (1906).

A private right of action under this section exists only if a preexisting common-law action underlies the constitutional guarantee. Frazier v. Collins, 538 F. Supp. 603 (E.D. Va. 1982).

Section not applicable to acts committed in violation of law. - The prohibition of this section against the enactment of laws permitting the taking or damaging of private property, without just compensation, has no application to acts committed in violation of law. The eminent domain statutes provide adequate and sufficient remedy for the taking and damaging of private property in a lawful manner. The negligent acts of public officials or agents in the carrying on of a public duty or function cannot be regarded as acts of the government itself, nor can it be inferred from either the Constitution or the eminent domain statutes that the State has voluntarily assumed liability for the tortious acts of its officers and agents committed in violation of law. Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597 (1954).

But compensation is guaranteed irrespective of negligence in taking or damage. - It is the plain purpose of the language used in this section to guarantee to an owner just compensation both where his property is taken for public uses and where it is damaged for public uses, irrespective of whether there be negligence in the taking or the damage. Heldt v. Elizabeth River Tunnel Dist., 196 Va. 477 , 84 S.E.2d 511 (1954); Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398 (1962).

This section, which is self-executing, permits a landowner to enforce his constitutional right to compensation in a common-law action both where his property is taken for public uses and where it is damaged for public uses, irrespective of whether there be negligence in the taking or the damage. Jenkins v. County of Shenandoah, 246 Va. 467 , 436 S.E.2d 607 (1993).

Contributory negligence of landowner. - The trial court erred in qualifying plaintiff's right to recover for damage to her buildings by instructing the jury that such right would be defeated if she were guilty of negligence contributing to her damage. Notwithstanding any negligence on plaintiff's part, she was entitled to recover for any damage actually caused by the construction of the project and severable from that caused by her negligence. Heldt v. Elizabeth River Tunnel Dist., 196 Va. 477 , 84 S.E.2d 511 (1954).

No constitutional right to hearing on issue of necessity. - The power of eminent domain is an essential attribute of sovereignty which inheres in the General Assembly, and the only constitutional limitations imposed upon the power of eminent domain are contained in the just compensation clause. Thus, there is no constitutional right to a hearing on the issue of necessity. Hamer v. School Bd., 240 Va. 66 , 393 S.E.2d 623 (1990).

Eminent domain proceedings. - The requirements of due process do not inhibit the sovereign from taking physical possession of private property for public use in a condemnation proceeding prior to notice to the owner and in advance of a judicial determination of the validity of such taking. City of Richmond v. Dervishian, 190 Va. 398 , 57 S.E.2d 120 (1950).

Due process of law is satisfied, in eminent domain proceedings, by a hearing subsequent to the taking, as to the validity of the taking, where the condemnor, at the time of the taking, acquires only a defeasible title to and right of possession of the property. City of Richmond v. Dervishian, 190 Va. 398 , 57 S.E.2d 120 (1950).

A delegation of the power of eminent domain is constitutional provided the taking is for public use, the use is needful for the public, and provided further that the public's right to use the facilities is adequately protected. Peck Iron & Metal Co. v. Colonial Pipeline Co., 206 Va. 711 , 146 S.E.2d 169, cert. denied, 385 U.S. 823, 87 S. Ct. 52, 17 L. Ed. 2d 60 (1966).

Fifteen-year delay between the time a redevelopment authority found a landowner's property to be blighted and the time the authority sought condemnation of the property did not implicate due process, under U.S. Const., Amend. V or Va. Const., Art. 1, § 11, because: (1) no statute of limitations applied, under § 36-51.1, and the lack of a statute of limitations was reasonable, as redevelopment projects were by nature long-term undertakings; and (2) the landowner was not deprived of just compensation by this delay because the owner was not constitutionally entitled to be compensated for the value of an ongoing business. Norfolk Redevelopment & Hous. Auth. v. C & C Real Estate, Inc., 272 Va. 2 , 630 S.E.2d 505, 2006 Va. LEXIS 59 (2006).

Inapplicability of sovereign immunity. - A landowner's action to recover damages to private property is not a tort action, but a contract action and consequently is not barred by sovereign immunity. Jenkins v. County of Shenandoah, 246 Va. 467 , 436 S.E.2d 607 (1993).

Waiver of sovereign immunity from inverse condemnation claims. - The just-compensation clause of this section constitutes a waiver of sovereign immunity from inverse condemnation claims, and § 8.01-187 creates a statutory mechanism for the enforcement of such claims. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984).

Required development, etc., of public facilities by private landowner unconstitutional. - There is nothing in the Constitution, enabling statutes or case law of Virginia which empowers the sovereign to require private landowners, as a condition precedent to development, to construct or maintain public facilities on land owned by the sovereign, when the need for such facilities is not substantially generated by the proposed development. The private money necessary to fund the performance of such requirements is property, and such requirements violate the constitutional guarantee that no person shall be deprived of his life, liberty or property without due process of law. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

As is condition to right of private development. - A local governing body does not have the power to enact a zoning ordinance that requires individual landowners, as a condition to the right to develop their parcels, to dedicate a portion of their fee for the purpose of providing a road, the need for which is substantially generated by public traffic demands rather than by the proposed development. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

Restrictive covenants applicable to a residential subdivision create an "interest or estate" in land, which a public utility may acquire by eminent domain, but subject to the protection of this section that it may not "be taken or damaged for public uses, without just compensation." Meagher v. Appalachian Elec. Power Co., 195 Va. 138 , 77 S.E.2d 461 (1953), commented on in 39 Va. L. Rev. 1127 (1953).

Rights in soil lying under public road. - Where a water company owning easements for pipes under a road contested the Highway Commissioner's (now Transportation Commissioner's) right to compel it to bear the expense involved in relocating its water line as made necessary by changes in the grade of the road, in reversing a judgment that the company's easement constituted property which could not be taken without compensation, it was held that, so far as rights in the subjacent soil are involved, the public right-of-way for highway purposes extends to making reasonable improvements in grade facilitating the safety and convenience of public travel. Anderson v. Stuarts Draft Water Co., 197 Va. 36 , 87 S.E.2d 756 (1955).

Whether a condemnation is for a public or a private use is a judicial question and is subject to review by the courts. State Hwy. Comm'r v. Kreger, 128 Va. 203 , 105 S.E. 217 (1920). But note the clause inserted by the 1928 amendment to this section in the Constitution of 1902, which permits the General Assembly to define "public uses."

Legislative declaration as to drainage as public purpose. - Former § 15.1-283 is an express declaration by the General Assembly that establishing adequate drainage is a public purpose and that the use of property for that purpose is a public use. While such a declaration is not conclusive and is subject to judicial review, it is presumed to be right. Burns v. Board of Supvrs., 218 Va. 625 , 238 S.E.2d 823 (1977).

Implied consent that counties be sued. - The State, by this provision and by the statutes which authorize counties to be sued (former § 15.1-508, see now § 15.2-1404) and claims to be asserted against counties (former §§ 15.1-550, 15.1-552, and 15.1-553, see now §§ 15.2-1245, 15.2-1246, and 15.2-1247, respectively), by necessary implication consented that the counties of the State might be sued for injury to private property damaged by them for public uses, insofar as the manner of doing or letting the work to contract, etc., is concerned. Nelson County v. Loving, 126 Va. 283 , 101 S.E. 406 (1919).

It is immaterial whether a railroad company acts in its public or private capacity. In neither aspect can it take or damage private property for its use without making just compensation therefor. Southern Ry. v. Fitzpatrick, 129 Va. 246 , 105 S.E. 663 (1921).

Effect on statutes. - In view of the provision of the present Constitution which forbids damage to private property for a public use without just compensation, all existing statutes inconsistent with the Constitution were held to be thereby nullified, and subsequent inconsistent statutes to be forbidden. Swift & Co. v. City of Newport News, 105 Va. 108 , 52 S.E. 821 (1906).

Statutory authority conferred on a city to exercise the power of eminent domain, does not conflict with this section. Light v. City of Danville, 168 Va. 181 , 190 S.E. 276 (1937).

Constitutionality of act creating Rudee Inlet Authority. - See Rudee Inlet Authority v. Bastian, 206 Va. 906 , 147 S.E.2d 131 (1966), Acts 1960, c. 227, which created the Rudee Inlet Authority, was repealed by Acts 2004, c. 15.

For acts, sections, etc., held not to violate this provision, see Strawberry Hill Land Corp. v. Starbuck, 124 Va. 71 , 97 S.E. 362 (1918); Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 (1921); Mumpower v. Housing Auth., 176 Va. 426 , 11 S.E.2d 732 (1940); Long v. Shirley, 177 Va. 401 , 14 S.E.2d 375 (1941); United States v. Alexander, 47 F. Supp. 900 (W.D. Va. 1942).

B. TAKING OR DAMAGING OF PROPERTY.

Denial of permit under coastal primary sand dune zoning ordinance not a regulatory taking requiring compensation. - Denial by city of a permit required by city's coastal primary sand dune zoning ordinance to develop two lots did not constitute a regulatory taking requiring compensation of landowner where the ordinance predated landowner's acquisition of the property; "bundle of rights" acquired by landowner when he acquired the property did not include the right to develop land without restriction. City of Va. Beach v. Bell, 255 Va. 395 , 498 S.E.2d 414, cert. denied, 525 U.S. 826, 119 S. Ct. 73, 142 L. Ed. 2d 57 (1998).

Property is damaged for Virginia constitutional purposes when an appurtenant right connected with the property is directly and specially affected by a public use and that use inflicts a direct and special injury on the property which diminishes its value. Board of Supervisors v. Omni Homes, Inc., 253 Va. 59 , 481 S.E.2d 460, cert. denied, 522 U.S. 813, 118 S. Ct. 58, 139 L. Ed. 2d 22 (1997).

But does not include damages which would not have been wrong even without act of legislature. - This section was construed by the Supreme Court of Virginia as not including damages which would not have been wrong even without a permissive act of the legislature. It was held that an oyster planter takes his right to plant and propagate oysters on the public domain of the Commonwealth subject to the ancient right of the riparian owners to drain the harmful refuse of the land into the sea, which is the sewer provided by nature. Upon this point the Supreme Court of the United States followed the state court. Darling v. City of Newport News, 249 U.S. 540, 39 S. Ct. 371, 63 L. Ed. 759 (1919), aff'g, 123 Va. 14 , 96 S.E. 307 (1918).

No taking absent interference with all reasonable beneficial uses. - All citizens hold property subject to the proper exercise of the police power for the common good, and even where such an exercise results in substantial diminution of property values, an owner has no right to compensation therefor. No taking occurs in these circumstances unless the regulation interferes with all reasonable beneficial uses of the property, taken as a whole. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867 (1982).

Property is considered taken for constitutional purposes if the government's action deprives the property of all economic use. Board of Supervisors v. Omni Homes, Inc., 253 Va. 59 , 481 S.E.2d 460, cert. denied, 522 U.S. 813, 118 S. Ct. 58, 139 L. Ed. 2d 22 (1997).

Franchisee not entitled to compensation under takings clause from franchisor. - Franchisee, gas station operator, was not entitled to compensation for his leasehold interest from commonwealth's purchase of the business property from the franchisor under the Takings Clause of the Fifth Amendment, or Va. Const., Art. I, § 11, because the franchisee had not shown the required governmental action; the franchisor was a private entity, and the Takings Clause did not provide for a cause of action against a private party. Bajwa v. Sunoco, Inc., 320 F. Supp. 2d 454, 2004 U.S. Dist. LEXIS 10187 (E.D. Va. 2004).

Medical malpractice damages cap not unconstitutional taking. - One cannot obtain property interest in cause of action that has not accrued. Therefore, since there was nothing to prevent the General Assembly from limiting a remedy for medical malpractice, so far as unaccrued causes of action are concerned, a statutory cap on medical malpractice damages does not violate the "takings" clause. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307 (1999).

Words "or damaged" do not allow considering abutter's land in estimating damages to residue. - Different courts have assigned different reasons why the enhanced value to the abutter's land cannot be considered in estimating the damages to the residue. Whatever may be the true reason for the rule of law, it is too firmly established as a rule of constitutional law to be changed by the courts. Nor was it the intention of this section to change the rule by the insertion, in 1902, of the words "or damaged." Shirley v. Russell, 149 Va. 658 , 140 S.E. 816 (1927).

If land is so committed to a particular use that it cannot be put to another use economically, under those circumstances, it is appropriate to take the committed use of the land into consideration when determining the market value of the land. Fairfax County Park Auth. v. Virginia DOT, 247 Va. 259 , 440 S.E.2d 610 (1994).

Excess benefit to abutting owner taken into consideration in determining damages to abutter. - If the change of grade of a street causes an enhancement of the market value of property abutting on that street greater than that of property not so abutting, the excess benefit is special to such abutters, although a number are so benefited, and is to be taken into account in determining whether or not the property of such abutter has been damaged within the meaning of this section. Town of Galax v. Waugh, 143 Va. 213 , 129 S.E. 504 (1925).

Injuries caused by exercise of power of eminent domain. - The public agency or corporation causing the land to be condemned or the work to be done is primarily liable for injuries caused by the exercise of the power of eminent domain. And this applies to property taken or damaged by a city, county or other political subdivision. Tidewater Constr. Corp. v. Manly, 194 Va. 836 , 75 S.E.2d 500 (1953).

A contractor or agent lawfully acting on behalf of a principal to whom the right of eminent domain has been accorded, in making a proposed public improvement, cannot be held personally liable for damages if such improvement is made without negligence on his part. Tidewater Constr. Corp. v. Manly, 194 Va. 836 , 75 S.E.2d 500 (1953).

Restriction on use constitutes "taking." - When a land use permitted to one landowner is restricted to another similarly situated, the restriction is discriminatory, and, if not substantially related to the public health, safety or welfare, constitutes a denial of equal protection of the laws. A restriction on the right to use which thus denies equal protection also constitutes a "taking" of one of the most valuable components of the package of private property rights, and, absent just compensation, such taking is a denial of due process of law. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

Contract limitation not a taking. - Statutory cap on the amount by which public contracts lawfully could be increased did not constitute an unlawful taking of a contractor's additional labor without payment, since the cap only affected the remedy available for certain breach of contract actions under the common law, and not the validity of the underlying contractual obligations. Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., 745 F.3d 703, 2014 U.S. App. LEXIS 4189 (4th Cir. 2014), cert. denied, 135 S. Ct. 361, 135 S. Ct. 357, 190 L. Ed. 2d 251 (U.S. 2014).

Zoning ordinances may be unconstitutional as applied to an individual parcel. - Zoning ordinances, of necessity, regulate land use uniformly within large districts, and it is impractical to tailor such ordinances to meet the condition of each individual parcel within the district as the size, shape, topography, or other conditions affecting such a parcel may, if the zoning ordinance is applied to it as written, render it relatively useless; thus, a zoning ordinance, valid on its face, might be unconstitutional as applied to an individual parcel, in violation of Va. Const., Art. 1, § 11. Cochran v. Fairfax County Bd. of Zoning Appeals, 267 Va. 756 , 594 S.E.2d 571, 2004 Va. LEXIS 57 (2004).

Single occurrence of property damage. - Single occurrence of flooding can support an inverse condemnation claim under Va. Const., Art. I, § 11. Livingston v. Va. DOT, 284 Va. 140 , 726 S.E.2d 264, 2012 Va. LEXIS 119 (2012).

Homeowners entitled to compensation if government's operation of public improvement damaged property. - Where the allegations in a complaint, if true, established that homes and personal property were damaged during a storm due to the government's operation of, and failure to maintain, a relocated stream, the trial court erred in dismissing on demurrer the homeowners' inverse condemnation action under Va. Const., Art. I, § 11. Livingston v. Va. DOT, 284 Va. 140 , 726 S.E.2d 264, 2012 Va. LEXIS 119 (2012).

Inverse condemnation. - Circuit court properly dismissed the insurers' original inverse condemnation complaint for failure to state a claim because it sounded wholly in tort and did not state a prima facie cause of action for inverse condemnation where it neither expressly nor impliedly alleged that a county or anyone working for it purposefully caused the backflow of raw sewage into a grocery store or deliberately allowed it to happen in order to keep the entire system operating for other users of the system. AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469 , 800 S.E.2d 159, 2017 Va. LEXIS 113 (2017).

Circuit court erred in denying the insurers' motion for leave to amend their complaint because neither the State Constitution nor the implied constitutional right of action for inverse condemnation made a categorical distinction between personal and real property, and the damage to a grocery store's personal property came as a result of, or "incident to," the backflow of raw sewage into the store. AGCS Marine Ins. Co. v. Arlington Cty., 293 Va. 469 , 800 S.E.2d 159, 2017 Va. LEXIS 113 (2017).

More stringent controls allowed on regulated utilities. - In the case of a regulated utility, the State may, under the police power, impose controls that are even more stringent than those that can be impressed upon other private property owners. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867 (1982).

Action of Water Control Board not confiscatory. - State Water Control Board's action requiring connection of privately owned utilities' sewer lines to lines of public utility, which would leave the utilities' collector lines in operation and have no effect on the rates charged to customers, where the cost of construction of the treatment facilities had long been recaptured, and where abandonment of the treatment facilities would have no effect on the utilities' continuation in business, operating profit, or value as going concerns, despite the fact that there was presently no economically feasible alternative use for the abandoned structures or the land on which they stood, did not render the board's actions confiscatory. Commonwealth ex rel. State Water Control Bd. v. County Utils. Corp., 223 Va. 534 , 290 S.E.2d 867 (1982) (holding the Board's action nevertheless unreasonable and arbitrary under applicable statutes).

Filing of condemnation proceeding and lis pendens does not constitute a taking. Without further interference with an owner's right to use and dispose of his land, the filing of condemnation proceedings and a lis pendens does not constitute a taking of the property requiring just compensation under the Virginia Constitution. Similarly, allegations of potential diminution in property value resulting from the institution of these proceedings does not constitute damage to the property envisioned by this section. Bartz v. Board of Supvrs., 237 Va. 669 , 379 S.E.2d 356 (1989).

The trial court erred in making the county liable for interest from the time of the entry of the order until payment was made since the county did not assert any indications of "taking" or dominion over the landowner's property until legal title passed and former § 25-46.34(b) (now § 25.1-249) affords the condemnor 30 days after the trial court sets the final amount of the compensation award to accept or reject the compensation amount without any penalty and the County exercised its option to pay for the property at the set price within the 30-day time period; therefore, there was no statutory or constitutional basis for the trial court to require the County to pay any interest on the compensation award. Bartz v. Board of Supvrs., 237 Va. 669 , 379 S.E.2d 356 (1989).

Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. Richmond, F. & P.R.R. v. Metropolitan Wash. Airports Auth., 251 Va. 201 , 468 S.E.2d 90 (1996).

Provisions against taking or damaging private property are self-executing. - The provisions of this section against the taking or damaging of private property for public use, without just compensation are self-executing and repeal and displace all existing laws inconsistent therewith. Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 (1919); Shirley v. Russell, 149 Va. 658 , 140 S.E. 816 (1927); Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398 (1962).

This section is self-executing, and a landowner whose property has been damaged for public use may recover in a common-law action. Heldt v. Elizabeth River Tunnel Dist., 196 Va. 477 , 84 S.E.2d 511 (1954); Burns v. Board of Supvrs., 218 Va. 625 , 238 S.E.2d 823 (1977).

No material impairment of direct access to property. - In a case in which the city council adopted an ordinance closing the portion of a road that abutted the landowner's property to all non-emergency vehicular traffic, that exercise of police power by the city did not, as a matter of law, deprive the landowner of reasonable access because the landowner retained access to its property through a major public highway; and the landowner's lost access to the road, although qualifying as a direct loss of access, was not a material impairment of direct access to property. Thus, the closure did not constitute a taking that entitled the landowner to compensation. Hooked Grp., LLC v. City of Chesapeake, 298 Va. 663 , 842 S.E.2d 413, 2020 Va. LEXIS 59 (May 28, 2020).

The words "or damaged" appeared in § 58 of the 1902 Constitution for the first time. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

The word "damaged" as used in this section means damaged in the legal sense, that is, damage resulting from a legal invasion, as opposed to a mere physical invasion, of property or property rights. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657 (1971).

The word "damaged" as used in this section means damage done to the corpus of the property, or to some right enjoyed in connection therewith. The mere fact that private property is rendered less desirable for some purposes, or even less salable, does not constitute damage within the meaning of the section. Lambert v. City of Norfolk, 108 Va. 259 , 61 S.E. 776 (1908).

And is limited to cases where the corpus is directly affected. - A city under legislative authority might condemn land for the purpose of establishing a hospital thereon, or a prison, which, if established, would have the consequential effect to injure or depreciate the market or actual value of property in the neighborhood. Such injuries would not be within this section prohibiting the taking or damaging of property without just compensation for public uses. This provision is limited to cases where the corpus is directly affected, and also specifically affected in a manner not common to the property owner and to the public at large. City of Lynchburg v. Peters, 156 Va. 40 , 157 S.E. 769 (1931).

But to constitute "damages" there need be no physical invasion of the owner's real property. The owner may recover if the construction and operation of the improvement would amount to a private nuisance at common law, or is the cause of substantial damage, though consequential. Tidewater Ry. v. Shartzer, 107 Va. 562 , 59 S.E. 407 (1907).

Damage to personal property in place under leasehold right. - Where personal property damaged or required to be removed by public undertaking is in place under a leasehold right, then, as incidental to the damaging of a property right, i.e., the leasehold interest, compensation for the costs of relocating the personal property is constitutionally required. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657 (1971).

Power of legislature to exclude element of damages. - Should the legislature exclude from a statute authorizing the exercise of the power of eminent domain any element of damage that directly flows from the taking, or allow benefits and advantages that do not particularly and exclusively affect the particular tract or parcel of land whereof a portion is condemned, such a provision would be unconstitutional. Shirley v. Russell, 149 Va. 658 , 140 S.E. 816 (1927).

Accrual of right to invoke this provision. - Until there is either a taking or damage to his property, the owner has no occasion to invoke the protection of the Constitution. The mere fact that sewage is turned into a stream does not give a right of action. It is only when the quantity becomes great enough to work injury to others that a liability arises. McKinney v. Trustees of Emory & Henry College, Inc., 117 Va. 763 , 86 S.E. 115 (1915).

Time of application of inhibition. - The constitutional inhibition upon taking or damaging private property for a public use without just compensation applies to the time of the actual taking or damaging, not to a mere paper taking or damaging. Swift & Co. v. City of Newport News, 105 Va. 108 , 52 S.E. 821 (1906).

This section was held not to take away from a turnpike company the right to change the grades of the pike, but only to provide that just compensation should be made for the damages resulting therefrom. Neither the Constitution nor any statute pointed out the remedy, but the common law afforded an appropriate remedy. Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 (1919).

Where a turnpike company constructed a bridle path parallel to its roadbed upon land dedicated to it for a right-of-way, an adjacent owner was held entitled to compensation for damage to the residue of his property, by reason of a change in the grade, under this section. Virginia Hot Springs Co. v. Lowman, 126 Va. 424 , 101 S.E. 326 (1919).

Acts done in the proper exercise of the governmental power to improve navigation, and not directly encroaching upon private property, though their consequences may impair its use, are not a taking within the meaning of this section, and do not entitle the owner to compensation. Oliver v. City of Richmond, 165 Va. 538 , 178 S.E. 48 (1935), cert. denied, 298 U.S. 674, 56 S. Ct. 942, 80 L. Ed. 1396 (1936).

Ownership or possession of animals. - An order prohibiting the defendant from owning or possessing companion animals was not a taking and, even if it was, was not for public use. Green v. Commonwealth, No. 1724-97-3, 1998 Va. App. LEXIS 601 (Ct. of Appeals Nov. 24, 1998).

Casting of large quantities of smoke, cinders, dust and dirt upon a store or dwelling by a railroad company is actionable under this section. Southern Ry. v. Fitzpatrick, 129 Va. 246 , 105 S.E. 663 (1921).

Exercise of police power not a taking within meaning of this section. - Sections 48-1 through 48-6 are an exercise of the police power of the State, and not a taking of private property for public use, for which compensation must be made, within the meaning of this section. Jeremy Imp. Co. v. Commonwealth, 106 Va. 482 , 56 S.E. 224 (1907).

Abatement of a nuisance is not a taking. - In an action for damages following the demolition of a residential building, the city's demolition of the property was not a taking, but rather the abatement of a nuisance for which no compensation was due. The availability of post-deprivation procedures barred the property owner's procedural due process claim. Lee v. City of Norfolk, 281 Va. 423 , 706 S.E.2d 330, 2011 Va. LEXIS 55 (2011).

No unconstitutional taking where economically viable use of property. - Trial court properly sustained the town's demurrer to the landowners' assertion that the town's refusal to extend the expired site plan and refusal to vacate the subdivision plat had deprived them of all economically viable use of the land without just compensation in violation of this section of the Constitution of Virginia. The landowners did not allege that they had applied for, or were denied, a new site plan or that they had complied with the requirements for obtaining an extension of the site plan under former Section 15.1-475(E)(1) (now § 15.2-2261) and were denied such an extension. Since development of the property with townhouses was an economically viable use of the property, and the pleadings did not assert that the town had precluded such development, there had been no unconstitutional taking of property. Helmick v. Town of Warrenton, 254 Va. 225 , 492 S.E.2d 113 (1997).

C. JUST COMPENSATION.

This section does not say how a person shall be paid or what just compensation is. - This section merely guarantees to each citizen just compensation for his property taken or damaged for public uses. It does not say how he shall be paid or what shall constitute just compensation. Nor does it guarantee that every citizen shall receive equal benefits from a public improvement. If the market value of the landowner's remaining property has been increased by the improvement, such increase may constitute a part of his just compensation. The property owner is entitled to receive the value of what he has been deprived of, and nothing more. If the market value of his remaining land has been increased more than it has been damaged by the improvement, then manifestly he has suffered no loss. Long v. Shirley, 177 Va. 401 , 14 S.E.2d 375 (1941).

The just compensation of this section is a fair equivalent for the damage inflicted. Town of Galax v. Waugh, 143 Va. 213 , 129 S.E. 504 (1925).

The amount of land taken relative to the amount left the owner has little relevance to determining just compensation due as measured by fair market value - the standard mandated in condemnation proceedings in this Commonwealth. Fairfax County Park Auth. v. Virginia DOT, 247 Va. 259 , 440 S.E.2d 610 (1994).

Virginia law holds partial diminution in the value of property compensable only if it results from dislocation of a specific right contained in the property owner's bundle of property rights. Board of Supervisors v. Omni Homes, Inc., 253 Va. 59 , 481 S.E.2d 460, cert. denied, 522 U.S. 813, 118 S. Ct. 58, 139 L. Ed. 2d 22 (1997).

Diminution in value not sufficient to establish taking. - In inverse condemnation actions, as property owners did not allege that the presence of a public utility's transmission lines interfered with their ability to exercise any specific property right, but that the transmission lines rendered their land less valuable as residential property, they did not state a claim for a "taking" under Va. Const. art. I, § 11. Byler v. Va. Elec. & Power Co., 284 Va. 501 , 731 S.E.2d 916, 2012 Va. LEXIS 167 (2012).

Landowner is entitled to "just compensation," but not to bonus compensation under this section. State Hwy. & Transp. Comm'r v. Parr, 217 Va. 522 , 230 S.E.2d 253 (1976).

Not a right to recover property. - The landowner's constitutional right is a right to just compensation, not a right to recover possession of the property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802 (1990).

Compensation not required in every case of financial loss. - The constitutional requirement of compensation does not import the necessity of payment in every case where financial loss, giving the word "damage" its ordinary rather than its legal meaning, might be shown as the result of a public undertaking. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657 (1971).

Plaintiff had not acquired the necessary rights to realize its preferred method of development either as a matter of contract or easement; the action of the defendant county in purchasing the property in question could not damage a non-existent right, and thus this purchase did not damage plaintiff's property within the contemplation of this provision. Board of Supervisors v. Omni Homes, Inc., 253 Va. 59 , 481 S.E.2d 460, cert. denied, 522 U.S. 813, 118 S. Ct. 58, 139 L. Ed. 2d 22 (1997).

The loss may be damnum absque injuria, unless rights identifiable as property rights are involved. Potomac Elec. Power Co. v. Fugate, 211 Va. 745 , 180 S.E.2d 657 (1971).

Consideration of uses to determine market value of land. - The market value of the land is derived by considering the various uses to which the land is susceptible, not just those uses to which a particular owner may be restricted. Fairfax County Park Auth. v. Virginia DOT, 247 Va. 259 , 440 S.E.2d 610 (1994).

The fair market value of the property condemned should be calculated without regard to the use restrictions placed on it by trust agreement. Fairfax County Park Auth. v. Virginia DOT, 247 Va. 259 , 440 S.E.2d 610 (1994).

Enhanced value of land not taken by eminent domain is not an element in compensation. - The enhanced value of land not taken in eminent domain proceedings by reason of the improvement cannot be considered as an element of just compensation as provided in this section. It is a community benefit and not a special or peculiar benefit to the land that may be offset against damages in condemnation proceedings. Shirley v. Russell, 149 Va. 658 , 140 S.E. 816 (1927).

Deduction from compensation for benefits. - For the land taken, the owner is entitled to receive full compensation in money, without deduction for any benefits, but, as to the land not taken, there is to be deducted from the damage sustained peculiar benefits received, and, if the damage to the residue of the tract falls short of such peculiar benefits, the deficiency is not charged to the owner, and, it would seem, that he would have no cause of action for damage to such residue. Town of Galax v. Waugh, 143 Va. 213 , 129 S.E. 504 (1925).

Compensation of defending proceedings. - The expense and annoyance to which a property owner is put by the necessity of defending condemnation proceedings are incidents to the exercise of the sovereign power of eminent domain, for which there is no constitutional guaranty of compensation, and the hardships must be borne pro bono publico. State Hwy. Comm'r v. Kreger, 128 Va. 203 , 105 S.E. 217 (1920).

Compensation for the cost of relocating personal property is required, under the "just compensation" clause of this section, as damage incidental to the taking of fee simple title to land. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

This section prohibits a condemning authority from imposing the confiscatory burden of moving tangible personal property on an individual citizen rather than spreading the cost more equitably over the general public. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

And moving costs can be definitely established. - Moving costs, unlike loss of profits, loss of good will, interruption of business, and other incidental damages, can be definitely established. City of Richmond v. Old Dominion Iron & Steel Corp., 212 Va. 611 , 186 S.E.2d 30 (1972).

Awarding of interest depends on construction of local statute. - Whether interest on the award should be allowed must depend upon the construction of the local statute, in the light of this section, the report of the commissioners and all the facts and circumstances surrounding the case. Export Leaf Tobacco Co. v. City of Richmond, 163 Va. 145 , 175 S.E. 753 (1934); VEPCO v. Call, 195 Va. 454 , 78 S.E.2d 670 (1953). See also VEPCO v. Marks, 195 Va. 468 , 78 S.E.2d 677 (1953).

But in absence of statute, the rule is derived from constitutional provisions. - In the absence of any statutory provisions controlling the subject, the rule in respect to interest must be derived from the constitutional provisions requiring just compensation to be made for the property taken. Export Leaf Tobacco Co. v. City of Richmond, 163 Va. 145 , 175 S.E. 753 (1934); VEPCO v. Call, 195 Va. 454 , 78 S.E.2d 670 (1953). See also VEPCO v. Marks, 195 Va. 468 , 78 S.E.2d 677 (1953).

Security for unpaid compensation. - It is only where the statute permits, or to the extent that it permits, the seizure and use of the property previous to the payment of the compensation that it is at all essential to the validity of the statute that it should provide any security for payment of the unpaid compensation. State Hwy. Comm'r v. Kreger, 128 Va. 203 , 105 S.E. 217 (1920).

Where sanitation district intentionally discharged sewage on private property and, indeed, its system was designed so that a valve would permit such discharge when the flow became excessive, the sanitation district was not immune from landowner's constitutionally mandated right to compensation. Hampton Rds. San. Dist. v. McDonnell, 234 Va. 235 , 360 S.E.2d 841 (1987).

Landowners whose property was damaged by water backup due to storm sewer system presented sufficient evidence to sustain an action under this section where although county argued that the landowners failed to present sufficient evidence to establish a prima facie case of inverse condemnation because the county took no steps with respect to the maintenance, construction or supervision or operation of the drainage easements, the county had accepted the drainage easement. Jenkins v. County of Shenandoah, 246 Va. 467 , 436 S.E.2d 607 (1993).

Required rental or sale of dwelling units at prices not fixed by free market. - Where an amendment to a county zoning ordinance requires the developer or owner to rent or sell 15% of the dwelling units in the development to persons of low or moderate income at rental or sale prices not fixed by a free market, such a scheme violates the guarantee set forth in this section that no property will be taken or damaged for public purposes without just compensation. Board of Supvrs. v. DeGroff Enters., Inc., 214 Va. 235 , 198 S.E.2d 600 (1973).

Sale of property acquired by condemnation. - There is no constitutional requirement that property once acquired by the sovereign through condemnation may not thereafter be sold to private individuals. When public use of property acquired by a municipality has ceased, the property may be sold or leased as the public welfare may demand. Hunter v. Norfolk Redevelopment & Housing Auth., 195 Va. 326 , 78 S.E.2d 893 (1953), holding § 36-48 et seq. not violative of this section.

Implied contract remedy. - The owner whose property is taken or damaged for public use has a right to waive all other remedies and to sue upon an implied contract that he will be paid therefor such amount as would have been awarded if the property had been condemned under the eminent domain statute. Burns v. Board of Supvrs., 218 Va. 625 , 238 S.E.2d 823 (1977).

Allegations that an adjacent landowner constructed a storm sewer system on its own property and then dedicated that property to the county board of supervisors, and that resultant discharge of water over the plaintiff's land caused substantial damage stated a good cause of action on implied contract not subject to demurrer. Burns v. Board of Supvrs., 218 Va. 625 , 238 S.E.2d 823 (1977).

This section is self-executing and permits the landowner to enforce its constitutional right to compensation in a common-law action based upon implied contract. Richmond, F. & P.R.R. v. Metropolitan Wash. Airports Auth., 251 Va. 201 , 468 S.E.2d 90 (1996).

The general eminent domain statute of the State fully complies with the constitutional requirement as to just compensation. State Hwy. Comm'r v. Kreger, 128 Va. 203 , 105 S.E. 217 (1920).

IV. TRIAL BY JURY.

State court proceedings are not governed by U.S. Const., Amend. 7, but by corresponding provisions in state constitutions. Boyd v. Bulala, 672 F. Supp. 915 (W.D. Va. 1987).

The constitutional guaranty of a jury trial is by no means universal in its application. The provision of this section in reference thereto has no application to suits in chancery, demurrers to the evidence, cases agreed, special verdicts, and other methods of procedure. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 (1921).

And does not apply when there is no controversy to be determined by jury. - If no evidence is offered, or none that would warrant a jury in finding a verdict in accordance therewith, then the rights of the parties become a question of law, and there is no controversy to be determined by a jury, and the constitutional guaranty does not apply. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 (1921).

Nor when court proceeds upon motion in a summary way. - While trial by jury is never to be taken away by implication or without positive words in an act of assembly, the laws sometimes give a court express authority to proceed without the solemnity of a jury; and the same thing is understood when power is given the court to proceed upon motion in a summary way. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 (1921).

Guarantee of jury trial same as when constitutions were adopted. - It has long been well settled that neither the state nor federal Constitution guarantees or preserves the right of trial by jury except in those cases where it existed when those constitutions were adopted. Bowman v. Virginia State Entomologist, 128 Va. 351 , 105 S.E. 141 (1920).

Inapplicable where no right to jury when Constitution adopted. - The provision as to trial by jury is inapplicable to those proceedings in which there was no right to jury trial when the Constitution was adopted. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578 , 331 S.E.2d 466 (1985).

All parties to civil litigation are entitled to a fair and impartial trial by a jury of persons who stand indifferent in the cause. Edlow v. Arnold, 243 Va. 345 , 415 S.E.2d 436 (1992).

Applicable to common-law actions seeking damages. - The provision as to trial by jury has no application to ordinary suits in chancery, but it is clearly applicable to common-law actions seeking damages, including punitive damages. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578 , 331 S.E.2d 466 (1985).

Section 55-248.40 discloses a legislative intent to provide contract remedies, not a recovery in tort, because: (1) the assignment to the court of the factual determination of whether a landlord is responsible for an act or omission prohibited by the Virginia Residential Landlord and Tenant Act, §§ 55-248.2 through 55-248.40, is entirely appropriate in an equitable claim, but at odds with the role of the court vis-a-vis the jury in an action at law for damages, such as an action for personal injury; (2) to allow the question of whether a tenant may recover damages for personal injuries to turn on the court's discretion would be inconsistent with the recognized principle of tort law that a plaintiff is entitled to compensation sufficient to make him whole; and (3) the provision allowing a court to enjoin a landlord from continuing an act or omission prohibited by the Act and to award damages in its discretion conforms to the longstanding authority of chancery courts to award damages incident to an award of equitable relief. Isbell v. Commercial Inv. Assocs., 273 Va. 605 , 644 S.E.2d 72, 2007 Va. LEXIS 52 (2007).

Medical malpractice damages cap not jury right impingement. - Although the mandate of this section includes the right to receive the amount of damages awarded by a jury after a proper trial, the jury trial guarantee secures no rights other than those that existed at common law and the common law never recognized a right to full recovery in tort. Therefore, a statutory cap on medical malpractice damages does not impinge upon the right to trial by jury. Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307 (1999).

Portion of § 8.01-383.1 unconstitutional. - In cases involving unliquidated damages, subsection B of § 8.01-383.1 , which gives trial court post-verdict option to award a new trial or impose additur, violates the right to jury trial because it fails to provide plaintiff an option either to consent to the use of additur or to have a new trial. Supinger v. Stakes, 255 Va. 198 , 495 S.E.2d 813 (1998).

Right to jury trial on appeal from board of supervisors not a constitutional right. - Plaintiff's right to a trial by jury of his appeal from the action of the board of supervisors of a county, disallowing his claim of money due him from the county, does not rest upon any constitutional right of trial by jury, because the proceeding is in effect an action against the county. But the right to a jury trial conferred by statute is just as essential to the jurisdiction of the court as if the right were conferred by the Constitution. Lambert v. Board of Supvrs., 140 Va. 62 , 124 S.E. 254 (1924). See also Chairman of Hwy. Comm'n v. Carter, 149 Va. 56 , 140 S.E. 117 (1927).

Plaintiffs are entitled to trial by jury of punitive damage claim. O'Brien v. Snow, 215 Va. 403 , 210 S.E.2d 165 (1974).

On the issue of attorney fees. - Trial court did not err, in the creditor's promissory note action against the debtor, in denying the creditor's post-verdict motion for attorney fees despite the fact that a promissory note provision would permit the creditor to recover attorney fees; the debtor had a state constitutional and statutory right to have the issue of awarding attorney fees submitted to the jury, the jury considered the issue, and the jury returned a verdict with its monetary award, and, thus, the creditor was not entitled to claim that a custom existed that the issue of attorney fees was decided in a post-verdict motion, especially since he did not offer evidence to support that claim. Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349, 2005 Va. LEXIS 40 (2005).

Insured had no right to a jury trial on the issue of bad faith or an award of attorney's fees and costs because Va. Const. art. I, § 11 did not apply to proceedings under the statute; subsection A does not implicate the right to a jury trial under Va. Const. art. I, § 11. REVI, LLC v. Chi. Title Ins. Co., 290 Va. 203 , 776 S.E.2d 808, 2015 Va. LEXIS 114 (2015).

The word "suits" in this section is manifestly used in much the same sense as the word "controversies" in the preceding part of the same sentence, and not in a strictly technical sense. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 (1921).

Erroneous transfer to equity. - Where an erroneous transfer to equity deprived the plaintiff of its right to jury trial, the error was not harmless. Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578 , 331 S.E.2d 466 (1985).

Jury trial in bankruptcy court. - The common-law right of trial by jury imbedded in the Constitutions of the United States and of Virginia coupled with the statutory enabling statutes eliminates any question as to whether or not the bankruptcy court is vested with the authority to provide a trial by jury where such right otherwise exists in other courts, whatever the forum. Brown v. Frank Meador Buick, Inc., 8 Bankr. 450 (Bankr. W.D. Va. 1981).

Jury resolves disputed facts only. - When the Virginia Constitution first was adopted, the jury's sole function was to resolve disputed facts, and this continues to be the jury's sole function, thus, the Virginia Constitution guarantees only that a jury will resolve disputed facts. Speet v. Bacaj, 237 Va. 290 , 377 S.E.2d 397 (1989).

The date when an investment company's land first suffered damage as a result of a city's acts was an issue of disputed fact, and the investment company was entitled to a jury trial on that issue; in any event, the city failed to present sufficient evidence to support the trial court's finding as to the date when damage first occurred. The only evidence presented related to a date when surface water backed up from the city's parcel in a ditch that extended partially into the investment company's land, and the mere presence of water in a drainage ditch was not in itself, injurious or damaging to the land. Bethel Inv. Co. v. City of Hampton, 272 Va. 765 , 636 S.E.2d 466, 2006 Va. LEXIS 93 (2006).

Standard of review. - Whether a civil litigant has been denied the right to trial by a fair and impartial jury is a question treated on appeal as one addressed to the sound discretion of the trial court and, unless there has been abuse of that discretion, the judgment below will not be reversed on appeal. Edlow v. Arnold, 243 Va. 345 , 415 S.E.2d 436 (1992).

Waiver of right to trial by jury. - Longshoreman who brought a negligence action against a boat owner was entitled to demand a jury trial in the proceeding held upon remand because the circuit court made an unchallenged factual finding that the waiver of the longshoreman's right to a jury trial, under Va. Const., Art. I, § 11 and § 8.01-336 , was limited to the first trial. Heinrich Schepers GmbH & Co., KG v. Whitaker, 280 Va. 507 , 702 S.E.2d 573, 2010 Va. LEXIS 267 (2010).

Batson challenges. - Defendant's Batson challenge failed because defendant did not meet the burden to show purposeful discrimination by demonstrating a peremptory strike of an African-American juror was based on the juror's failure to respond to a question that was not asked, as (1) defendant conceded this was an unintentional mistake, and (2) an ambiguous double-tiered hearsay remark did not prove otherwise. Bethea v. Commonwealth, 297 Va. 730 , 831 S.E.2d 670, 2019 Va. LEXIS 101 (2019).

Arguing residual doubt in sentencing phase. - Where the trial court refused to allow admission of evidence and to permit argument suggesting that defendant did not murder victim, preventing the sentencing jury from obtaining this critical information did not violate notions of fundamental fairness and did not constitute a violation of this section; a defendant may not argue residual doubt in the sentencing phase, and therefore, the trial court did not err in refusing to admit evidence and to allow argument on the subject. Stockton v. Commonwealth, 241 Va. 192 , 402 S.E.2d 196, cert. denied, 502 U.S. 280, 112 S. Ct. 280, 116 L. Ed. 2d 231 (1991).

Informing jury of consequences of acquittal by reason of insanity. - Due process under the United States and Virginia Constitutions did not require that the jury be informed during the guilt phase that an acquittal by reason of insanity would not entitle defendant to be released and could result in his commitment to a mental health facility. Such information would encourage an acquittal irrespective of the evidence. Holmes v. Commonwealth, No. 0905-07-3, 2008 Va. App. LEXIS 515 (Nov. 25, 2008).

Opinions of medical review board. - The admitting of the opinions of the medical review board into evidence is not an unconstitutional infringement on plaintiff's right to a jury trial as guaranteed by this section. Speet v. Bacaj, 237 Va. 290 , 377 S.E.2d 397 (1989).

Plaintiff entitled to withdraw agreement to special three-person jury prior to trial. - Given the clearly expressed constitutional purpose and legislative intent to preserve the right to trial by jury in both criminal and civil cases, a consent to a special three-person jury under subsection D of § 8.01-359 may be withdrawn before trial under the same conditions enunciated in Thomas v. Commonwealth, 218 Va. 553 , 238 S.E.2d 834 (1977). Therefore, plaintiff was entitled to withdraw his previous agreement to the special jury. Painter v. Fred Whitaker Co., 235 Va. 631 , 369 S.E.2d 191 (1988).

Legislative redistricting plan. - Party asserting that a legislative redistricting plan has improperly used race as a criterion must show that the legislature subordinated traditional redistricting principles to racial considerations and that race was not merely a factor in the design of the district, but was the predominant factor. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

In a challenge to a legislative redistricting plan on racial grounds, where majority-minority districts are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislatively drawn boundaries must show at the least that the legislature could have achieved its legitimate political objectives in alternative ways that are comparably consistent with traditional redistricting principles, and that party must show that those redistricting alternatives would have brought about significantly greater racial balance. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Food poisoning and causation. - Right to a trial by a jury in a civil case is constitutional in origin, and a jury's verdict should be set aside only where it is plainly wrong or there is no credible evidence in the record to support that verdict; since a physician's opinion that a diner's illness was caused by food poisoning was based sufficiently on facts known to him and was not speculative, since a timeline discrepancy regarding the onset of the diner's symptoms went to weight given the testimony by the jury, and since the lay testimony coupled with the doctor's diagnosis was sufficient to support a jury verdict for diner against a restaurant alleging food poisoning, the trial court erred in setting aside the jury's verdict. Bussey v. E.S.C. Rests. Inc., 270 Va. 531 , 620 S.E.2d 764, 2005 Va. LEXIS 91 (2005).

V. STATUTES HELD NOT TO VIOLATE THIS SECTION.

The condemnation of lands under the "Public Park Condemnation Act" (former §§ 25-120 through 25-231) did not constitute such discrimination against a landowner as to violate the provisions of Va. Const., Art. I, § 11. Via v. State Comm'n on Conservation & Dev., 9 F. Supp. 2d 556 (W.D. Va.), aff'd, 296 U.S. 549, 56 S. Ct. 245, 80 L. Ed. 388 (1935).

The Right to Work Statute, §§ 40.1-58 through 40.1-69, does not violate this section. Finney v. Hawkins, 189 Va. 878 , 54 S.E.2d 872 (1949).

The Fair Trade Act of 1958 (former § 59.1-1 et seq.) did not violate this section. Standard Drug Co. v. General Elec. Co., 202 Va. 367 , 117 S.E.2d 289 (1960), appeal dismissed, 368 U.S. 4, 82 S. Ct. 16, 7 L. Ed. 2d 16 (1961).

Drainage Act of 1914, ch. 332 (from which Chapter 6 of Title 21 is derived) does not violate this section. Strawberry Land Hill Corp. v. Starbuck, 124 Va. 71 , 97 S.E. 362 (1918).

The capitation tax is valid as a revenue measure. Shepheard v. Moore, 207 Va. 498 , 151 S.E.2d 419 (1966).

The Virginia Birth-Related Neurological Injury Compensation Act ( § 38.2-5000 et seq.) does not violate this section. King v. Virginia Birth-Related Neurological Injury Comp. Program, 242 Va. 404 , 410 S.E.2d 656 (1991).

The Virginia Birth-Related Neurological Injury Compensation Act ( § 38.2-5000 et seq.) does not violate the Anti-Discrimination Clause in this section. This clause is not applicable because it applies only to "governmental discrimination upon the basis of religious conviction, race, color, sex, or national origin." King v. Virginia Birth-Related Neurological Injury Comp. Program, 242 Va. 404 , 410 S.E.2d 656 (1991).

The purpose of the Virginia Birth-Related Neurological Injury Compensation Act, which is to make medical malpractice insurance coverage available to licensed physicians, bears a reasonable relationship to the provision for assessments, and the assessments are neither arbitrary nor discriminatory in a manner prohibited by the state or federal constitutions. King v. Virginia Birth-Related Neurological Injury Comp. Program, 242 Va. 404 , 410 S.E.2d 656 (1991).

Virginia Sexually Violent Predator Act. - Provision in subsection A of § 37.2-910 for conducting annual assessment hearings under the Virginia Sexually Violent Predator Act, § 37.2-900 et seq., by video conference is not facially unconstitutional. Shellman v. Commonwealth, 284 Va. 711 , 733 S.E.2d 242, 2012 Va. LEXIS 197 (2012).

Conducting an annual assessment hearing under § 37.2-910 of the Virginia Sexually Violent Predator Act by video conference did not violate respondent's rights to counsel and to due process; as he was able to participate in the hearing and confer with his counsel, he was not prejudiced by the trial court's denial of his request to attend the hearing in person. Shellman v. Commonwealth, 284 Va. 711 , 733 S.E.2d 242, 2012 Va. LEXIS 197 (2012).

No right to trial by jury for psychiatric treatment order. - Psychiatric patient at a state psychiatric facility was not entitled to a jury trial before undergoing psychiatric and medical treatment against the patient's will because the right to a jury trial under Va. Const. art. I, § 11 did not require a jury to decide whether the patient was to undergo psychiatric and medical treatment against the patient's will pursuant to § 37.2-1101. Ingram v. Commonwealth, 62 Va. App. 14, 741 S.E.2d 62, 2013 Va. App. LEXIS 131 (2013).

Constitutionality of death penalty. - Court found no reason to depart from its prior precedent and it had already rejected defendant's arguments that the death penalty on its face and as applied violated the Sixth Amendment, the Eighth Amendment, and the Fourteenth Amendment to the United States Constitution, as well as Va. Const., Art. I, §§ 8, 9, and 11. Jackson v. Commonwealth, 267 Va. 178 , 590 S.E.2d 520, 2004 Va. LEXIS 8 (2004), cert. denied, 543 U.S. 891, 125 S. Ct. 168, 160 L. Ed. 2d 155 (2004).

Execution by electrocution constitutional - Execution of prisoners by electrocution does not violate Va. Const., Art. I, §§ 9 and 11. Orbe v. Johnson, 267 Va. 560 , 601 S.E.2d 547, 2004 Va. LEXIS 53 (2004).

Taking blood samples for DNA analysis not contrary to due process. - The statutes providing for the taking of blood samples from convicted felons for DNA analysis do not violate the federal due process provisions of the Constitution of Virginia because the enactment of the statutes themselves in 1990 provided notice that all persons convicted of a felony would be required to give a blood sample for DNA analysis. Johnson v. Commonwealth, 259 Va. 654 , 529 S.E.2d 769, 2000 Va. LEXIS 60, cert. denied, 531 U.S. 981, 121 S. Ct. 432, 148 L. Ed. 2d 439 (2000).

Defendant's concession that he could not show that the Commonwealth intentionally delayed indicting defendant to gain a tactical advantage in a case where he attacked the victim but could not be identified for 12 years after the crime, because advancements in DNA technology took that long to match the DNA found at the crime scene to him meant that he could not show that his substantive due process rights were violated. Anderson v. Commonwealth, 48 Va. App. 704, 634 S.E.2d 372, 2006 Va. App. LEXIS 414 (2006), aff'd, 274 Va. 469 , 650 S.E.2d 702, 2007 Va. LEXIS 115 (Va. 2007).

Reasonable doubt standard. - Trial court did not err in refusing to declare §§ 18.2-269 and 18.2-270 unconstitutional in a case where defendant was charged with and later convicted of driving under the influence of alcohol; there did not exist an evidentiary presumption relieving the Commonwealth of the burden of proof beyond a reasonable doubt in those two statutes, as § 18.2-269 did not have a mandatory presumption but a rebuttable presumption and § 18.2-270 had no presumption at all. Lawrence v. Commonwealth, No. 0658-06-4, 2007 Va. App. LEXIS 150 (Apr. 10, 2007).

Automobile dealer franchise. - Judgment finding that a car company violated subsection 7 of § 46.2-1569 was reversed because the company was denied its right to due process as it was not given fair notice that the statute would be interpreted as prohibiting it from not shipping at least one of each requested vehicle model to a dealer in any month that it was capable of doing so. Volkswagen of Am., Inc. v. Smit, 279 Va. 327 , 689 S.E.2d 679, 2010 Va. LEXIS 30, cert. denied, 131 S. Ct. 138, 178 L. Ed. 2d 35, 2010 U.S. LEXIS 6564 (U.S. 2010).

Adoption. - Trial court did not err by determining that this section was not unconstitutional as applied to the mother's case because the totality of the facts supported a finding that she did not lack an understanding of the nature and legal consequences of her consent and the adoption. The mother executed a form representing that she consented to the adoption of her son by her parents, the record indicated that she knew the adoption was not temporary, the adoption was sought to prevent the son's father from becoming involved with the son, and she did not challenge the adoption for seven years. Lively v. Smith, 72 Va. App. 429, 848 S.E.2d 620, 2020 Va. App. LEXIS 252 (2020).

Former § 8-59 (see now § 8.01-299 ) did not violate this section because it authorized service of process on domestic corporations by publication, where there was no person in the county or corporation, wherein the action was commenced, on whom service could be had. A.S. White & Co. v. Jordan, 124 Va. 465 , 98 S.E. 24 (1919).

Former § 8-352 (now § 8.01-430 ), providing for judgment by trial court where a verdict was set aside as against the evidence, was not in violation of this section. W.S. Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245 , 108 S.E. 15 (1921).

The five-year limitation of former § 65.1-52 (3) (now § 65.2-406) on occupational disease claims did not contravene any of claimant's rights to due process and equal protection. Miller v. Locher Silica Corp., 12 Va. App. 1213, 408 S.E.2d 566 (1991).

Former § 65.1-102 (now § 65.2-714), which allows Industrial (now Workers' Compensation) Commission to award attorney fees by administrative process, did not violate Virginia Constitution's guarantee of trial by jury since health care providers may preserve their right to jury trial by not accepting payment from workers' compensation insurance carrier; however, once provider accepts payment from carrier it waives its right to pursue civil action (and thus, jury trial). Fairfax Hosp. Ass'n v. Sines, 1503-87-4 (Ct. of Appeals March 14, 1989).

Former §§ 65.1-88 and 65.1-102 (now §§ 65.2-603 and 65.2-714) did not impair hospital's contract with employee in violation of federal and state constitutions since statutes challenged were not intended to impair existing contract of hospital. Fairfax Hosp. Ass'n v. Sines, 1503-87-4 (Ct. of Appeals March 14, 1989).

Section 8.01-581.15 , which limits the amount of recoverable damages in a medical malpractice action, does not infringe upon the right to a jury trial, because the section does not apply until after a jury has completed its assigned function in the judicial process, and because although a party has the right to have a jury assess his damages, he has no right to have a jury dictate through an award the legal consequences of its assessment. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525 (1989).

Section 8.01-581.15 does not deny the right of trial by jury nor violate the separation of powers, anti-discrimination, or special legislation clauses of the Virginia Constitution. Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989).

Assertion that § 8.01-581.15 , which limits the amount of recoverable damages in a medical malpractice action, violates procedural due process by creating an irrebuttable presumption was without merit, because § 8.01-581.15 creates no presumptions whatsoever regarding the individual merits of a medical malpractice claim, but merely affects the parameters of the remedy available after the merits of a claim have been decided. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525 (1989).

The purpose of § 8.01-581.15 , which limits the amount of recoverable damages in a medical malpractice action, namely, to maintain adequate health care services in this Commonwealth, bears a reasonable relation to the legislative cap, ensuring that health care providers can obtain affordable medical malpractice insurance; therefore, it does not violate substantive due process. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525 (1989).

Former § 46.1-65 (d) (see now § 46.2-752 E), dealing with the imposition of motor vehicle license fees and taxes by counties and towns, did not violate this section. Town of Ashland v. Board of Supvrs., 202 Va. 409 , 117 S.E.2d 679 (1961).

Sections 48-7 through 48-15, concerning abatement of houses of ill fame, is valid hereunder. Bunkley v. Commonwealth, 130 Va. 55 , 108 S.E. 1 (1921).

Former § 54-187 (see now § 54.1-2706), empowering the State Board of Dental Examiners to revoke or suspend the certificate and license of any licensed dentist for advertising, etc., did not violate this section. Goe v. Gifford, 168 Va. 497 , 191 S.E. 783 (1937).

Former § 56-426, providing for the clearing of a railroad right-of-way, was a valid and constitutional legislative enactment. Southern Ry. v. Commonwealth, 205 Va. 114 , 135 S.E.2d 160 (1964).

Former § 65.1-47.1, creating a presumption that a fire fighter's disability due to respiratory illness constitutes an occupational disease compensable under the Workers' Compensation Act, does not violate the employer's constitutional rights. County Fire & Rescue Servs. v. Newman, 222 Va. 535 , 281 S.E.2d 897 (1981).

CIRCUIT COURT OPINIONS

Virginia Constitution does not guarantee a jury trial in all civil cases. - Virginia Constitution does not guarantee a jury trial in all "suits between man and man"; rather, one must look to the law as it existed when the Virginia Constitution was adopted and as it has been uniformly construed since that time in order to determine whether a jury trial is a right in a particular type of case. Moore v. Moore, 61 Va. Cir. 668, 2002 Va. Cir. LEXIS 320 (Roanoke 2002).

Waiver of right to trial by jury. - Plaintiff waived her right to have a jury decide factual issues raised in defendant's plea in bar by failing to request a jury, either in writing or orally at the hearing on the plea in bar; accordingly, the court did not deny plaintiff her right to trial by jury when the court granted the plea in bar after conducting an evidentiary hearing without a jury. Absent a jury demand, subsection B of § 8.01-336 authorized the court to hear and rule on the plea in bar. Painter v. Singh, 73 Va. Cir. 77, 2007 Va. Cir. LEXIS 32 (Fairfax County 2007).

In a lessor's breach of contract action, and under a knowing and voluntary waiver test, a lessee waived its right to a jury trial under Va. Const., Art. 1, § 11. The jury waiver provision in the lease was valid, and the fact that the lessee's representative failed to read the lease was irrelevant in the absence of fraud, duress, mutual mistake or lack of capacity or an allegation that the provision was hidden in particularly inconspicuous print. Fairfax Co. of Va., LLC v. Samson Realty, LLC, 74 Va. Cir. 141, 2007 Va. Cir. LEXIS 152 (Fairfax County 2007).

Waiver of a jury trial in a lease provision was enforced because a party could waive by contract any right conferred by law or contract if the party being charged with relinquishment of a right had knowledge of the right and intended to waive it; it was clear from the "waiver clause" that was included in the lease that the parties intended to waive jury trial. HZ Retail LLC v. Mohammed, 98 Va. Cir. 108, 2018 Va. Cir. LEXIS 11 (Fairfax County Jan. 31, 2018).

Since fraud in the inducement was not being claimed to the specific clause in the lease that dealt with the waiver of jury trial, the waiver clause was separable from the contract in which it was embedded; therefore, a lessee's motion to strike the lessors' demand for a jury trial was granted. HZ Retail LLC v. Mohammed, 98 Va. Cir. 108, 2018 Va. Cir. LEXIS 11 (Fairfax County Jan. 31, 2018).

Lessee's motion to strike lessors' demand for a jury trial was granted because conversion and unjust enrichment claims arose from the landlord-tenant relationship and were included in the language in the waiver that stated that a trial by jury was waived in any action, claim, or counterclaim brought in connection with any matter arising out of or in any way connected with this lease, the landlord-tenant relationship. HZ Retail LLC v. Mohammed, 98 Va. Cir. 108, 2018 Va. Cir. LEXIS 11 (Fairfax County Jan. 31, 2018).

Appeal bond requirement did not violate right to jury trial. - Debtor's constitutional right to a jury trial was not violated when the clerk of a district court did not forward to the circuit court the record in the district court case, after the debtor's request to waive an appeal bond on indigency grounds was denied following a review by the district court of the financial status of the debtor, because the appeal bond statute, complete with its indigency waiver, was a reasonable provision for circuit court appellate review of district court decisions. Elyazidi v. Barr, 91 Va. Cir. 89, 2015 Va. Cir. LEXIS 163 (Fairfax County Aug. 6, 2015).

Civil penalties under the Virginia Consumer Protection Act. - In the State's action defendants alleging violations of the Virginia Consumer Protection Act (VCPA) and the Virginia Solicitation of Contributions law, the court held that defendants were entitled to a jury on the issue of civil penalties under the (VCPA) because civil penalties required the possible assessment of monetary damages but not on the issues of injunctive relief, including restitution and attorney's fees. Commonwealth v. Serv. Dogs by Warren Retrievers, 101 Va. Cir. 275, 2019 Va. Cir. LEXIS 37 (Madison County Mar. 10, 2019).

CIRCUIT COURT OPINIONS

Jury demand denied. - Jury demand on the special plea was denied because there were no disputed facts; the case involved issues of law for the court to resolve by applying contract law to the agreement's undisputed contractual language. Doe v. Va. Wesleyan Coll., 90 Va. Cir. 345, 2015 Va. Cir. LEXIS 101 (Norfolk July 29, 2015).

Eminent domain statutes provided adequate remedy for city's alleged taking. - Property owner had no claim against a city for the allegedly negligent acts of its officials and agents in failing to take action to control a sewage system, which overflowed and dumped raw sewage onto the owner's property, because the eminent domain statutes, § 25-46.1 et seq., and Va. Const., Art. I, § 11, adequately provided remedies for the taking and damaging of personal property; there was no voluntary assumption of liability by the city for the tortious acts of its agents in this regard. Goodman v. City of Norfolk, 59 Va. Cir. 209, 2002 Va. Cir. LEXIS 342 (Norfolk July 2, 2002).

Constitutionality of statute. - Statute granting a city the authority to acquire an entire tract so long as a portion of any improvement was within the acquisition area was constitutional in light of an amendment to Va. Const. art. I, § 11 because the statute's scope and applicability was much narrower than that of the Takings Clause and the legislative intent in enacting the statute was not to frustrate the purpose of the Takings Clause, but to work and be read in conjunction with the clause. Allen v. City of Va. Beach, 100 Va. Cir. 299, 2018 Va. Cir. LEXIS 621 (Virginia Beach Nov. 8, 2018).

Town exercising eminent domain against county property. - Town, although authorized by statute to acquire property outside the limits of the town for the improvement of the town's waterworks system, could not acquire by eminent domain property owned by the surrounding county for a proposed school site in that the town was not expressly authorized to do so by statute. Town of Purcellville v. Loudoun County Bd. of Supervisors, 74 Va. Cir. 417, 2007 Va. Cir. LEXIS 297 (Loudoun County 2007).

Inapplicability of sovereign immunity. - Allegations set forth in the motion for judgment that a county authority constructed and removed water from a well located on a landowner's property satisfied the constitutional requirement of a taking for public use; accordingly, an inverse condemnation case under Va. Const., Art. 1, § 11, survived the plea of sovereign immunity. Holland v. Nelson County Serv. Auth., 68 Va. Cir. 99, 2005 Va. Cir. LEXIS 87 (Nelson County 2005).

City's sovereign immunity defense to the homeowners' takings claim pursuant to Va. Const., Art. I, § 11, based on the backup of the city's sewer system into the homeowners' residence had to be denied; actions under that constitutional provision were not tort claims, but claims based on an implied contract, and, thus, the doctrine of sovereign immunity did not apply. Sullivan v. City of Hopewell, 70 Va. Cir. 134, 2006 Va. Cir. LEXIS 29 (Greensville County 2006).

Construction or repair of utilities is a public use. - Property owners and business tenants stated a cause of action for inverse condemnation under Va. Const., Art. I, § 11, where they alleged that the city denied them access to their property in order to build and repair public utilities, which was a public use under § 1-219.1 . Close v. City of Norfolk, 82 Va. Cir. 636, 2009 Va. Cir. LEXIS 203 (Norfolk Dec. 23, 2009).

Construction of hotel not a public use. - Property owners and business tenants failed to state a cause of action for inverse condemnation under Va. Const., Art. I, § 11, where they alleged that the city denied them access to their property in order to accommodate the construction of a hotel, which was not a public use under § 1-219.1 . Close v. City of Norfolk, 82 Va. Cir. 636, 2009 Va. Cir. LEXIS 203 (Norfolk Dec. 23, 2009).

Wetlands mitigation. - Circuit court found that it did have subject matter jurisdiction over a case because the Virginia Department of Transportation was utilizing its eminent domain authority under § 25.1-109, in tandem with Va. Const. art. 1, § 11 and § 33.2-1001, to condemn property for the purpose of wetlands mitigation. Comm'r of Highway v. Lockhart,, 2020 Va. Cir. LEXIS 156 (Buchanan County Aug. 17, 2020).

Consideration of uses to determine market value of property. - In determining value for property, both current and future development value are relevant where not speculative, but interruption of a public highway is not compensable where the landowner retains access to the abutting public highway. Commonwealth Transp. Comm'r v. Pruitt Props., 62 Va. Cir. 95, 2003 Va. Cir. LEXIS 268 (Goochland 2003).

Evidence of visibility in condemnation case. - City's motion in limine to exclude damages concerning a reduction of the public's visibility from being introduced at a condemnation trial was denied where a portion of the landowner's property had been taken for the bridge project, the landowner was claiming damage to the residue, and thus, the issue of visibility damages was properly before the court. City of Chesapeake v. Tidewater Constr. Corp., 95 Va. Cir. 167, 2017 Va. Cir. LEXIS 17 (Chesapeake Feb. 10, 2017).

No constitutional right to a jury trial. - Because a property owner lacked any right to a jury trial in its suit against the Commonwealth under the Just Compensation Clause, Va. Const., Art. I, § 11, the action was to proceed on the Commonwealth's terms, pursuant to the plain meaning of § 8.01-187 . Moreover, the instant court lacked any power to effect a more expansive waiver of immunity than provided for by the Commonwealth itself. Catholic Diocese v. Commonwealth Transp. Comm'r, 74 Va. Cir. 154, 2007 Va. Cir. LEXIS 245 (Alexandria 2007).

Vagueness. - Section 46.2-1054 was not unconstitutionally vague as applied to a black, tree-shaped air freshener dangling from the rear view mirror of defendant's vehicle where the statute unambiguously provided that any object suspended from a vehicle that obstructed a driver's clear view of the highway through the windshield, thereby providing fair notice of its prohibitions, and the statute did not confer unlimited discretion on law enforcement to determine whether an offense had occurred. City of Chesapeake v. Evans, 91 Va. Cir. 247, 2015 Va. Cir. LEXIS 244 (Chesapeake Sept. 29, 2015).

Zoning decision by county board of supervisors not arbitrary or capricious. - County board of supervisors' decision to deny the application of a developer and property owner for a conditional use permit to build a resort on agriculturally-zoned property was upheld because: (1) the board considered traffic conditions, septic and well concerns, environmental concerns, and the general character of the neighborhood in making their decision, and thus, it was not arbitrary and capricious under a substantive due process analysis; (2) the board's action was legislative, not administrative, in character and therefore was presumed to be valid under separation of powers principles; and (3) the evidence was sharply conflicting, leaving a question that was "fairly debatable." Freezeland Orchard Co. v. Warren County, 61 Va. Cir. 548, 2001 Va. Cir. LEXIS 517 (Warren County 2001).

Property owners could bring inverse condemnation claim despite not following §§ 15.2-1246 and 15.2-1247. - Because §§ 15.2-1246 and 15.2-1247 did not provide the exclusive procedural remedies for property owners asserting an inverse condemnation claim against a county, the owners did not waive their right to a common-law action under Va. Const., Art. I, § 11, by failing to appeal a decision of the county board of supervisors. Hartwell v. County of Fairfax, 83 Va. Cir. 105, 2011 Va. Cir. LEXIS 90 (Fairfax County June 24, 2011).

Property owner was not required to present his inverse condemnation claim to the county board of supervisors under § 15.2-1248 prior to filing suit as the just compensation provision Va. Const. art. I, § 11, was self-executing. Applying the presentment provision would have deprived the owner of his ability to seek just compensation under the Virginia Constitution despite the provision being self-executing because he failed to comply with a procedural barrier. Farrell v. Fairfax Cty. Bd. of Supervisors, 105 Va. Cir. 529, 2020 Va. Cir. LEXIS 148 (Fairfax County Aug. 31, 2020).

Common law provides a remedy to a takings claim. - Motion to strike and dismiss a landowner's objections to a condemnation petition filed by the Commissioner of Highways was denied because the common law provided a remedy to an Art. I, § 11 takings claim; although subsection G of § 1-219.1 and subdivision A 9 of § 25.1-417 did not expressly delineate a remedy to VDOT's finding that the portion of the land that was not subject to the taking was not an "uneconomic remnant," the language of those sections also did not state that there was no remedy for an alleged wrongful determination that a parcel of land was not an "uneconomic remnant." Comm'r of Hwys v. W. Dulles Props., L.L.C., 86 Va. Cir. 284, 2013 Va. Cir. LEXIS 16 (Fairfax County Mar. 4, 2013).

Virginia Department of Social Services hearing and appeals process constitutional. - Petitioner's appeal from the Virginia Department of Social Services hearing officer's disposition of "founded sexual molestation, level 1" based on petitioner's claim of a denial of due process was denied where no constitutional violation was found because: (1) petitioner was afforded the fundamental fairness that due process required because the record revealed that petitioner was advised in advance of all hearing dates, that petitioner appeared and called witnesses to testify for petitioner, that petitioner also testified on petitioner's own behalf, and that petitioner was given notice, a hearing, and an opportunity to be heard; and (2) insofar as procedural due process was concerned, the Virginia Court of Appeals ruled that the challenged hearing and appeal procedures were constitutionally adequate. Anonymous v. Va. Dep't of Soc. Servs., 64 Va. Cir. 381, 2004 Va. Cir. LEXIS 174 (Salem 2004).

Administrative procedures. - Although a clerical employee lacked authority to act on a Virginia Department of Labor and Industry citation, the alleged lack or insufficiency of notice under 16 VAC § 270(A) was not caused by the Department or by a lack of due process, but by the company's failure to have proper mail routing procedures in place. Godsey & Son, Inc. v. Davenport, 67 Va. Cir. 576, 2004 Va. Cir. LEXIS 357 (Richmond Dec. 15, 2004).

Publication of notices in newspapers. - Circuit court lacked subject matter jurisdiction to grant a corporation authority to publish legal notices within a city in its newspaper under subsection A of § 8.01-324 because the newspaper lacked the breadth of circulation in the city enjoyed by another newspaper, but, depending upon the facts of a case, due process requirements for notice by publication could be met by publishing in either or neither of the two newspapers; publication of notices in newspapers meeting the requirements of § 8.01-324 may not survive a due process scrutiny. In re Dow Jones & Co., 79 Va. Cir. 514, 2009 Va. Cir. LEXIS 246 (Norfolk Nov. 17, 2009).

No due process violation based on lack of evidentiary hearing. - University's failure to provide the student an opportunity to be heard on an application for in-state tuition at an evidentiary hearing did not violate the student's due process rights because there was no requirement that the student be afforded an evidentiary hearing. Wittich v. George Mason Univ., 75 Va. Cir. 311, 2008 Va. Cir. LEXIS 67 (Fairfax County 2008).

Requirements of due process. - Due process did not require the dismissal of an action to enforce a mechanic's lien for failure to include a potential lien holder as a party because the potential lien holder was not a necessary party; necessary parties in such actions were those with present lien claims against the premises, and consideration of the potential lien holder's claim by the commissioner of chancery at judicial sale proceedings, should the proceedings reach that stage, would protect its due process interests. Kesterson Heating & Plumbing, Inc. v. Blankenship, 70 Va. Cir. 440, 2004 Va. Cir. LEXIS 372 (Alexandria 2004).

The Sixth Amendment and Crawford did not apply in a probation revocation hearing because the full panoply of rights due a defendant in a criminal prosecution does not extend to parole revocation proceedings, neither does that panoply of rights apply in a probation revocation hearing. Commonwealth v. Dickens, 73 Va. Cir. 437, 2007 Va. Cir. LEXIS 229 (Norfolk July 18, 2007), aff'd, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

Affidavit from a custodian of state police records of sex offender registrations that stated that defendant failed to register as a sex offender was properly admitted into evidence at a probation revocation hearing where admission of the affidavit did not violate defendant's due process right to confront witnesses in a criminal trial. Commonwealth v. Dickens, 73 Va. Cir. 437, 2007 Va. Cir. LEXIS 229 (Norfolk July 18, 2007), aff'd, 52 Va. App. 412, 663 S.E.2d 548, 2008 Va. App. LEXIS 356 (2008).

Denial of Sixth Amendment speedy trial right was not available in a claim of pre-indictment delay; rather, pre-indictment delay involved a due process right. However, a due process violation claim was not supported by evidence that the Commonwealth intentionally delayed an indictment or that defendant was thereby prejudiced; the fact that defendant's high-quality counsel was unable to consolidate the indictment's charges with other charges for a favorable sentencing consideration created no substantive or procedural right. Commonwealth v. Boone, 73 Va. Cir. 277, 2007 Va. Cir. LEXIS 232 (Portsmouth Apr. 26, 2007).

Homeowners had not adequately alleged a due process violation with respect to the demolition of a structure in an historic district where neither their investment in their homes based on zoning, a zoning ordinance granting them a right to appeal the architectural review board decision, nor their status as aggrieved parties granted them a property right in the structure. Freemason St. Area Ass'n v. City of Norfolk, 103 Va. Cir. 244, 2019 Va. Cir. LEXIS 611 (Norfolk Oct. 21, 2019).

Notice in traffic light photo-monitoring system. - Notice provided to defendant was constitutionally sufficient and the means by which defendant received notice was also constitutionally sufficient where she received notice through the first notification mechanism authorized by statute, that notice provided defendant detailed information as to both the nature of the violation and the procedural options available to her to contest the violation, and defendant then availed herself of one of these options, specifically to contest the violation at an evidentiary hearing, both in the general district court and, subsequently, in the circuit court. City of Fairfax v. Cooper, 99 Va. Cir. 334, 2018 Va. Cir. LEXIS 120 (Fairfax County July 10, 2018).

Property deprivations. - This section is self-executing only to the extent of deprivation of property; the section does not include similar language for deprivations of life and liberty. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004).

Restriction on use constitutes "taking." - Owner and tenants of real property pled facts that, if proven true, could have led to the conclusion that they had no reasonable access to their property during an extended street closure and, therefore, the property was taken or damaged pursuant to Va. Const., Art. I, § 11, without just compensation. Further, they were entitled to argue that compensation was permissible for the temporary damaging of their direct access easement due to construction for a public use. Close v. City of Norfolk,, 2011 Va. Cir. LEXIS 101 (Norfolk Apr. 12, 2011).

Categorical taking. - There were no factual allegations in adjacent landowners' complaint sufficient to support a claim of a categorical taking because although the landowners factually alleged an encroachment deprived them of all economic and physical use of a portion of their lots, they did not allege a taking of all use or value of their entire properties. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

Flights over private lands do not constitute a taking. - Noise from aircraft flying directly over a property did not make the property unfit for residential use as the owners sold their home for use as a residence for more than twice what they purchased it for, and the property was not deprived of all economic use; there was not a constitutional taking under Va. Const., Art. I, § 11. Osipovs v. Chesapeake Airport Auth., 74 Va. Cir. 350, 2007 Va. Cir. LEXIS 295 (Chesapeake 2007).

Discharge of water onto neighboring property was taking. - Discharge of water from a school board's retention basin onto neighboring property caused substantial damage and amounted to a "taking" for which the landowners could seek just compensation under Va. Const., Art. I, § 11. The school board was not immune from suit because the action sounded in contract. Waltman v. King William County Sch. Bd., 81 Va. Cir. 381, 2010 Va. Cir. LEXIS 129 (Norfolk Nov. 22, 2010).

Taking of more property than necessary for public use. - Dismissal of a city's petition for condemnation was appropriate because the city's motion for and filing of an amended petition and certificate, substantially different from the initial petition and certificate, followed by an insistence that there was no legal difference between the documents, demonstrated that the city in fact was attempting to take more property than was necessary to achieve the stated public purpose of a utility easement. City of Chesapeake v. KH HR Two Great Bridge, LLC, 91 Va. Cir. 16, 2015 Va. Cir. LEXIS 129 (Chesapeake June 9, 2015).

Inverse condemnation. - Lessee's basic right as a business owner to have reasonable access to its business for its customers was a private personal property right that was protected under the constitution and thus the proper subject of an inverse condemnation claim where that right was alleged to have been taken or damaged by the county for public use due to the county's unreasonable delay in repairing the sinkhole and restoring the service road that provided access to the lessee's service station. PM Lube, LLC v. Cty. of Loudoun, 100 Va. Cir. 395, 2018 Va. Cir. LEXIS 706 (Loudoun County Dec. 18, 2018).

County's delay in restoring the service road in the face of the evident damage that the sinkhole and lack of reasonable access would likely cause the lessee constituted the type of governmental conduct that would support liability in inverse condemnation. PM Lube, LLC v. Cty. of Loudoun, 100 Va. Cir. 395, 2018 Va. Cir. LEXIS 706 (Loudoun County Dec. 18, 2018).

Damages based on inverse condemnation. - Because a bridge expansion by the Commonwealth Transportation Commissioner of Virginia changed the grade of the owners' permanent easement, eliminated access to portions of their property, and caused storm water to erode portions of their property, the owners were entitled to damages based on inverse condemnation under Va. Const., Art. I, § 11. Jennings v. Commonwealth Transp. Comm'r of Va., 83 Va. Cir. 184, 2011 Va. Cir. LEXIS 100 (Wythe County July 18, 2011).

Va. Const. art. I, § 11 did not apply to a landowner's inverse condemnation claim against a city for issuing a fill permit to the landowner's neighbors because the provision did not apply to alleged damage of private property for a private use. Collett v. City of Norfolk, 85 Va. Cir. 258, 2012 Va. Cir. LEXIS 177 (Norfolk Aug. 24, 2012).

When a landowner claimed inverse condemnation against a city for issuing a fill permit to the landowner's neighbors, no violation of Va. Const. art. I, § 11 was sufficiently stated because (1) the landowner did not allege the landowner was deprived of all economic use of the landowner's land, (2) the landowner did not allege the permit was issued for a public purpose, under § 1-219.1 , and (3) it was not alleged that the city's stormwater disposal system contributed to the landowner's alleged damage. Collett v. City of Norfolk, 85 Va. Cir. 258, 2012 Va. Cir. LEXIS 177 (Norfolk Aug. 24, 2012).

City's demurrer to landowner's inverse condemnation suit was sustained because, when the city limited access to an established entrance to the landowner's property, access to the property was not completely extinguished but only reduced in the interest of public safety, constituting a valid, non-compensable, exercise of police power. Hooked Grp., L.L.C. v. City of Chesapeake, 100 Va. Cir. 303, 2018 Va. Cir. LEXIS 616 (Chesapeake Nov. 9, 2018), aff'd, 842 S.E.2d 413, 2020 Va. LEXIS 59 (2020).

Landowners entitled to § 8.01-187 proceeding to determine just compensation. - Landowners established damage under Va. Const., Art. I, § 11, and that, if not compensated, they were entitled to a proceeding under § 8.01-187 to determine just compensation as the property had suffered a significant increase in volume, frequency, and vibrations from noise due to aircraft flying directly overhead, there was no requirement that the damage be significant, and the exact amount of damages was not important as the landowners sought a declaratory judgment. Osipovs v. Chesapeake Airport Auth., 74 Va. Cir. 350, 2007 Va. Cir. LEXIS 295 (Chesapeake 2007).

Cap on medical malpractice damages. - Virginia Medical Malpractice Act, § 8.01-581.1 et seq., which provided a statutory cap on the amount of damages that could be awarded in a medical malpractice, was constitutional since the law applied equally to all persons within the class because the classification was reasonable and because the medical malpractice cap was a rational means of achieving the legislative goal of securing health care services by maintaining the availability of malpractice insurance at affordable rates. Allen v. Mid-Atlantic Health Alliance, Inc., 63 Va. Cir. 59, 2003 Va. Cir. LEXIS 194 (Fredericksburg 2003), rev'd in part, sub nom. Gamache v. Allen, 268 Va. 222 , 601 S.E.2d 598 (2004).

Telephonic testimony. - Because § 17.1-513.2 authorized a court to conduct any hearing using a telephonic communication system, the transportation commissioner's right to cross-examine and to a fair trial would not be violated if a landowner's appraiser testified under oath and submitted to cross-examination by telephone. Commonwealth Transp. Comm'r v. Cogil Corp., 67 Va. Cir. 398, 2005 Va. Cir. LEXIS 149 (Warren County June 8, 2005).

No private right of action. - Virginia Const., Art. I, § 10, and this section, are not self-executing; there is not a private right of action under the Virginia Constitution for a claim of unreasonable seizure. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004); Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

Trial court found that Va. Const., Art. I, § 11, did not give a police officer who claimed that other officers forcibly removed him from his home and took him to a police station where he was held against his will a private right of action to sue the City of Norfolk or the police officers for false imprisonment. Young v. City of Norfolk, 62 Va. Cir. 307, 2003 Va. Cir. LEXIS 296 (Norfolk 2003).

Sheriff's negligence in not providing the inmate with medical services was not actionable under the cruel and unusual punishment and due process of law provisions in the state constitution because no private right of action existed under either provision, except for claims of damage to or taking of property. Quigley v. McCabe, 91 Va. Cir. 397, 2015 Va. Cir. LEXIS 243 (Norfolk Nov. 30, 2015).

Majority-minority. - By placing more black voters into majority-minority legislative districts under a redistricting plan than were necessary or reasonable to give the minority group a reasonable opportunity to elect a candidate of its choice, the Commonwealth discriminated against the citizens of the districts by subordinating traditional redistricting principles to race. West v. Gilmore,, 2002 Va. Cir. LEXIS 37 (Salem Mar. 10, 2002).

Long arm jurisdiction. - Defendants' phone conversations and e-mails with plaintiffs' employees in Virginia while defendants were in New York and Florida did not satisfy the "minimal contacts" required for asserting personal jurisdiction over defendants in Virginia under the Due Process Clause. Idexcel, Inc. v. Lieto,, 2012 Va. Cir. LEXIS 13 (Fairfax County Jan. 24, 2012).

Standing. - Town had no standing under the constitution to bring an action seeking a declaration that a reapportionment ordinance a county adopted was unconstitutional because it was not a citizen. Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 2002 Va. Cir. LEXIS 480 (Lancaster County Oct. 10, 2002).

Equal protection. - Because the State Air Pollution Control Board properly considered the factors in § 10.1-1322.3, and because an exchange of allowances under subdivision D 3 and subsection F of § 10.1-1328 between sister companies was a "purchase," the owner's status was not a basis to determine that the nonattainment area requirements of the Clean Air Interstate Rule was unconstitutional on an equal protection basis. Mirant Potomac River, LLC v. State Air Pollution Control Bd., 78 Va. Cir. 13, 2008 Va. Cir. LEXIS 187 (Richmond 2008).

Single photo identification was sufficiently reliable. - Trial court denied defendant's motion to suppress the single photo identification by the alleged victim in a breaking and entering case, because the out-of-court identification was of more than sufficient reliability to overcome any taint of suggestiveness under Va. Const., Art. I, § 11. The victim saw the intruder who entered his house and then fled; he had a full view of the intruder's face, his clothing, and his person; the victim's prior description of the intruder matched the overall physical description of defendant; and the victim was reasonably certain of his identification of defendant. Commonwealth v. Talbert, 84 Va. Cir. 428, 2012 Va. Cir. LEXIS 125 (Charlottesville Apr. 12, 2012).

Authorization to perform marriages. - Bond requirement of § 20-26 was unconstitutional; further, the one person requirement was insufficiently narrowly tailored as required by the Equal Protection Clause and thus § 20-26 unconstitutionally discriminated against the members on the basis of their religion. The members were found to have been appropriate individuals to perform wedding ceremonies. In re Dhanoa, 86 Va. Cir. 373, 2013 Va. Cir. LEXIS 18 (Fairfax County Mar. 29, 2013).

Section 56-49.01 does not authorize "taking" or damaging without just compensation. - Section 56-49.01 does not authorize "taking" or damaging without just compensation because by its very terms, the statute creates a cause of action against the natural gas company for actual damages caused. Atl. Coast Pipeline, LLC v. Avery, 92 Va. Cir. 387, 2016 Va. Cir. LEXIS 73 (Nelson County May 9, 2016), aff'd, 295 Va. 522 , 815 S.E.2d 783 (2018).

Pipeline for public use. - Pipeline survey was for public use because the survey of the proposed route for the pipeline was not only to determine the "best" route but also whether a particular parcel was the appropriate location for the pipeline. Atl. Coast Pipeline, LLC v. Avery, 92 Va. Cir. 387, 2016 Va. Cir. LEXIS 73 (Nelson County May 9, 2016), aff'd, 295 Va. 522 , 815 S.E.2d 783 (2018).

Natural gas company did not seek to condemn more property than necessary to achieve the stated public use because the proposed pipeline would go underground in an area already subject to a power easement; no evidence refuted that of the company that future access rights to the properties were needed for future maintenance and safety. Va. Natural Gas, Inc. v. Sumner, 98 Va. Cir. 167, 2018 Va. Cir. LEXIS 21 (Chesapeake Feb. 23, 2018).

Temporary entry to survey not a taking. - Natural gas company's right to enter was not unlimited as to the date, scope, or duration under the statute, and thus, a temporary entry to survey was not a "taking" of private property. Atl. Coast Pipeline, LLC v. Avery, 92 Va. Cir. 387, 2016 Va. Cir. LEXIS 73 (Nelson County May 9, 2016), aff'd, 295 Va. 522 , 815 S.E.2d 783 (2018).

Ordinance not facially unconstitutional as taking. - Ordinance was not facially unconstitutional as a taking of adjacent landowners' properties without compensation in violation of the Virginia Constitution because all landowners in the county held their property subject to its zoning ordinance; the same right that a neighbor had under the ordinance inured to the benefit of the landowners and the other owners in the waterfront section of a development. Hamrick v. Bd. of Supervisors of Westmoreland Cty., 98 Va. Cir. 403, 2007 Va. Cir. LEXIS 3067 (Westmoreland County Nov. 1, 2007).

Protective order. - Protective orders did not violate the Takings Clauses as the law required a temporary deprivation of a firearm in whatever manner the owner saw fit. Baird v. Baird, 99 Va. Cir. 432, 2018 Va. Cir. LEXIS 323 (Wise County Aug. 8, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Proposed amendment. - Damages sustained when a major cross-town highway is converted to a limited access only highway that eliminates all direct access to the major highway by abutting landowners are compensable under the current Constitution and will remain compensable under the amendment. See opinion of Attorney General to The Honorable Jackson H. Miller, Member, House of Delegates, 11-135, 2012 Va. AG LEXIS 3 (1/26/12).

Proposed amendment, if adopted, would not expand the meaning of "damages" to such an extent that it would enable the owners of property located in the vicinity of, or affected by, an unpopular public facility to recover damages when none of their land has been taken for the facility. See opinion of Attorney General to The Honorable Jackson H. Miller, Member, House of Delegates, 11-135, 2012 Va. AG LEXIS 3 (1/26/12).

Design and construction of highways and roads, including the installation of medians and other traffic management and safety features, represent the exercise of the Commonwealth's police power, the exercise of which generally is not compensable under the current Constitution, provided that a reasonable means of ingress and egress for an abutting property remains; whether limitations on vehicular access will be compensable under the proposed amendment will depend on how the General Assembly defines by statute "lost access" and "lost profits," but a property owner likely will have an opportunity to present to the body determining just compensation evidence of the damages alleged to have been sustained. See opinion of Attorney General to The Honorable Jackson H. Miller, Member, House of Delegates, 11-135, 2012 Va. AG LEXIS 3 (1/26/12).

Franchise fees owed under franchise agreements. - The Virginia Communications Sales and Use Tax Act does not reduce the amount of franchise fees owed under existing franchise agreements. Therefore, the Act does not constitute an impairment of contract as prohibited by this section. See opinion of Attorney General to The Honorable Harry B. Blevins, Member, Senate of Virginia, 07-044 (9/5/07).

Compulsory pooling orders. - Absent an election by the owner, a Virginia Gas and Oil Board order that deems the interest of a gas owner leased to the unit operator does not constitute a taking pursuant to Article I, § 11. See opinion of Attorney General to The Honorable Clarence E. "Bud" Phillips, Member, House of Delegates, 09-023, 2009 Va. AG LEXIS 27 (6/10/09).

The Virginia Gas and Oil Act is constitutional, and the Act and the Virginia Gas and Oil Board provide appropriate protection of the due process rights of gas owners in the context of the compulsory pooling hearings and orders. See opinion of Attorney General to The Honorable Clarence E. "Bud" Phillips, Member, House of Delegates, 09-023, 2009 Va. AG LEXIS 27 (6/10/09).

Proffer payments. - Section 15.2-2303.1:1 does not infringe the Contracts Clauses of the United States or of the Virginia Constitutions. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, 10-065, 2010 Va. AG LEXIS 53 (9/13/10).

Local ordinances found constitutional. - A noise control ordinance that prohibits certain animal noises at certain times is constitutional under the constitutions of Virginia and of the United States. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, 11-065, 2011 Va. AG LEXIS 35 (6/22/11).

A local ordinance that prohibits the owner of agricultural animals from allowing such animals to run at large in the locality is constitutional under the constitutions of Virginia and of the United States. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, 11-065, 2011 Va. AG LEXIS 35 (6/22/11).

"Lost access." - Whether any particular change in access to a specific landowner's property constitutes compensable lost access is a fact-dependent question and, therefore, is properly a matter for the body determining just compensation to resolve, based on the evidence in each case. Whether there is a material impairment of direct access and whether a property owner is entitled to just compensation for lost access are questions of fact properly left to the body determining just compensation, unless the facts in a specific case lead the court to conclude that reasonable persons cannot differ, in which circumstance the court may proceed with the determination as a matter of law. See opinion of Attorney General to Honorable J. Chapman Petersen, Member, Senate of Virginia, No. 13-099, 2014 Va. AG LEXIS 6 (1/10/14).

Dedication of land. - A local governing body may require dedication of land for street widening and construction of drainage improvements only when the need for such conditions is generated by the proposed development. Whether that standard has been met in any particular situation is a question of fact. See opinion of Attorney General to The Honorable Lionell Spruill, Sr., Member, House of Delegates, No. 14-061, 2014 Va. AG LEXIS 72 (11/3/14).

I. GENERAL CONSIDERATION.

Balance between free expression and speakers' responsibility. - This section recognizes the balance to be struck between the right of free expression enjoyed by the individual and the press on the one hand and the right of defamed individuals to hold the speakers "responsible" for damage to reputation on the other. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Liberty of the press embraces the circulation and distribution of magazines and periodicals as well as religious literature. The solicitation of a subscription to a magazine or periodical expressing opinions and disseminating views is merely a step and but one of the steps in its publication and circulation. Robert v. City of Norfolk, 188 Va. 413 , 49 S.E.2d 697 (1948).

It does not matter by whom a report is published; the privilege is the same, as a matter of law, for a private individual as for a newspaper. By "liberty of the press" indeed is merely meant that the publications in the press shall not be subject to an antecedent censorship. Williams Printing Co. v. Saunders, 113 Va. 156 , 73 S.E. 472 (1912).

Freedom of speech is a right which the courts have zealously guarded and maintained. But the right has its limitations and the State may punish its abuse. The right may not be exercised in such manner as to destroy respect for the courts, the very institution which is the guardian of that right. Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953).

While the rights of freedom of speech and assembly are fundamental, they are not absolute and must be exercised in subordination to the general comfort and convenience and in consonance with peace, good order and the rights of others. Thomas v. City of Danville, 207 Va. 656 , 152 S.E.2d 265 (1967); York v. City of Danville, 207 Va. 665 , 152 S.E.2d 259 (1967).

Coextensive with the federal free speech provisions. - Va. Const., Art. I, § 12 is coextensive with the free speech provisions of the federal First Amendment. Key v. Robertson, 626 F. Supp. 2d 566, 2009 U.S. Dist. LEXIS 51092 (E.D. Va. 2009).

Obscenity in utterance is not within the area of protected speech and press. Goldstein v. Commonwealth, 200 Va. 25 , 104 S.E.2d 66 (1958).

Defamation actions. - Pure expressions of opinion did not form the basis of a defamation action, although factual statements made to support an opinion could have formed basis of a defamation action; where the statements given in a private placement memorandum were opinions or were truthful, a defamation judgment was reversed. Am. Communs. Network, Inc. v. Williams, 264 Va. 336 , 568 S.E.2d 683, 2002 Va. LEXIS 94 (2002).

Doctors' allegations that people who worked for a healthcare association where the doctors had worked, told others that the doctors "abandoned" their patients and that they had "concerns" about the doctors' competence, stated a claim for defamation per se, and the trial court erred by dismissing the doctors' action against the healthcare association based on those allegations. Fuste v. Riverside Healthcare Ass'n, 265 Va. 127 , 575 S.E.2d 858, 2003 Va. LEXIS 13 (2003).

Three statements in an employee's performance review should not have been submitted to the jury in the employee's defamation action against a company and her supervisor, as the statements were opinion and protected by the First Amendment of the United States Constitution and Va. Const., Art. I, § 12. The negative connotation in one of the statements was an allegation that the employee engaged in open and inappropriate criticism of others; whether the employee's statements were critical of others and made openly were facts that were subject to evidentiary proof, but whether such statements were inappropriate was a matter of opinion. Raytheon Tech. Servs. Co. v. Hyland, 273 Va. 292 , 641 S.E.2d 84, 2007 Va. LEXIS 32 (2007).

Unsuccessful candidate for public office did not show actual malice required to support a defamation suit against a newspaper editorial author and a publisher as: (1) defendants' rights to free speech under the First Amendment and Va. Const., Art. I, § 12, protected even the false statements in the editorial unless defendants knew of their falsity or subjective serious doubts as to their truth; (2) actual malice was not shown by the existence of contradictory information in the newspaper's files; (3) defendants' failure to investigate the accuracy of a false statement that the candidate had resigned from the school board did not show actual malice; (4) there was no evidence that the author had any serious doubt about the truth of the statements asserting that the candidate had a "blot on (the candidate's) record" because the candidate bore some degree of responsibility for the school board's disastrous budget deficit, even though the candidate was acquitted of the criminal charges of malfeasance under § 22.1-91; and (5) the author had no reason to question information about a special grand jury's report. Jackson v. Hartig, 274 Va. 219 , 645 S.E.2d 303, 2007 Va. LEXIS 96 (2007).

In this defamation action, defendant's motion to dismiss was denied because the court was unable to conclude that the statements at issue were pure expressions of opinion that could not form the basis of an actionable claim for defamation; the representative's statements could be reasonably understood to imply the existence of defamatory facts. Bates v. Strawbridge Studios, Inc.,, 2012 U.S. Dist. LEXIS 28938 (W.D. Va. Mar. 5, 2012).

Trial court properly dismissed the defamation claims against the psychologist because her statements that cast the mother in a negative light were merely expressions of opinion and therefore were not actionable. Padula-Wilson v. Landry, 298 Va. 565 , 841 S.E.2d 864, 2020 Va. LEXIS 43 (2020).

Taxation of cable television service does not violate this section. - A cable communication television service is not entitled to the same exemption from business privilege license taxation, provided by subdivision C 3 of § 58.1-3703, to which operators of a "television broadcasting station or service" are entitled. Chesterfield Cablevision, Inc. v. County of Chesterfield, 241 Va. 252 , 401 S.E.2d 678 (1991).

Unless a "suspect classification" is involved, the legislature may, constitutionally, treat different subjects differently for the purpose of taxation: (1) if the difference is real; (2) if the distinction has some relevance to the legislative purpose; and (3) if the differing treatments are not so disparate, relative to the difference in classification, as to be wholly arbitrary. The holding in Winchester TV Cable v. State Tax Comm'n, 216 Va. 286 , 217 S.E.2d 885 (1975), articulates the distinction between "broadcasting" and television cable services. That distinction, in itself, meets the first part of the threefold test set forth above. Chesterfield Cablevision, Inc. v. County of Chesterfield, 241 Va. 252 , 401 S.E.2d 678 (1991).

Where it was apparent from the undisputed facts that the other two parts of the test were also met, there was a rational basis for the legislative decision to tax those differing businesses differently. Chesterfield Cablevision, Inc. v. County of Chesterfield, 241 Va. 252 , 401 S.E.2d 678 (1991).

City tax imposed on television cable company with nonexclusive franchise did not violate the cable company's rights under the First Amendment to the United States Constitution or Va. Const., Art. I, § 12. Cox Cable Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394 , 410 S.E.2d 652 (1991).

A city ordinance requiring a permit to solicit contributions or sell articles on the streets, under which defendant was convicted for soliciting without such a permit a subscription to a magazine published by his employer which expressed opinions and disseminated ideas, permitted the punishment of incidents fairly within the protection of the guarantee of a free press, and as applied to defendant's conduct the ordinance was void. Robert v. City of Norfolk, 188 Va. 413 , 49 S.E.2d 697 (1948).

City ordinance regulating certain billboards was not a valid time, place and manner restriction, and favored commercial speech over noncommercial speech; therefore, it was an impermissible restriction on speech protected by the federal and Virginia Constitutions. Adams Outdoor Adv. v. City of Newport News, 236 Va. 370 , 373 S.E.2d 917 (1988).

Debate as to qualifications of candidates is protected. - Not all speech is protected by the First Amendment to the federal Constitution and this section. But there can be no doubt that discussion of public issues and debate on the qualifications of candidates for public office are integral to the operation of the system of government and are entitled to the broadest protection the First Amendment can afford. Mahan v. National Conservative Political Action Comm., 227 Va. 330 , 315 S.E.2d 829 (1984).

Right to engage in a parade or demonstration as an exercise of the rights of freedom of speech and assembly is subject to reasonable and nondiscriminatory regulation. York v. City of Danville, 207 Va. 665 , 152 S.E.2d 259 (1967).

Parade ordinance violating rights of freedom of speech and assembly. - The provision in an ordinance requiring that application for a parade permit be filed with the chief of police "not less than thirty days nor more than sixty days before the date on which it is proposed to conduct the parade" is an arbitrary and unreasonable prior restraint upon the rights of freedom of speech and assembly. York v. City of Danville, 207 Va. 665 , 152 S.E.2d 259 (1967).

Posting materials on school room walls not protected. - Where religious materials were removed from a teacher's classroom walls, no violation of the teacher's freedom of speech was shown since the teacher's curricular speech was subject to school board regulation, the materials involved matters of personal interest rather than public concern, and no designated public forum was created by the board. Lee v. York County Sch. Div., 418 F. Supp. 2d 816, 2006 U.S. Dist. LEXIS 7114 (E.D. Va. 2006), aff'd, 484 F.3d 687, 2007 U.S. App. LEXIS 10139 (4th Cir. Va. 2007).

Speech by public employees. - After police officers were suspended for statements about a female officer's performance, and then resumed their duties, they plausibly alleged that their speech regarding a threat of injury to other officers and the public was of public concern, thereby implicating constitutional protection; their interest in speaking outweighed the city's interest in promoting the efficient provision of public services, and they sufficiently alleged that their protected speech was the "but for" cause of their suspensions, so their free speech claims survived. Willis v. City of Virginia Beach, 90 F. Supp. 3d 597 (E.D. Va. 2015).

Prohibiting picketing by persons other than employees. - This section does not bar the Commonwealth from prohibiting anyone who is not, or was not immediately prior to the strike or lockout an employee of a business concern, from picketing said business while there is a strike or lockout. Dougherty v. Commonwealth, 199 Va. 515 , 100 S.E.2d 754 (1957), upholding the validity of the third paragraph of § 40.1-53.

The Right to Work Statute, §§ 40.1-58 through 40.1-69, does not violate this section. Finney v. Hawkins, 189 Va. 878 , 54 S.E.2d 872 (1949).

Cross burning statute's prima facie evidence provision is severable. - Because § 18.2-423 did not fall within either of the exceptions to the rule of severability established in former § 1-17.1 [now § 1-243 ], the court held that the prima facie evidence provision was severable and that the provisions of the statute that remained did not violate the First Amendment or Va. Const., Art. I, § 12. Elliott v. Commonwealth, 267 Va. 464 , 593 S.E.2d 263, 2004 Va. LEXIS 41 (2004).

Forcing NAACP to reveal donors. - This section was violated by the Committee on Offenses created under former § 30-42 when the Committee attempted to force the NAACP to divulge the names of its donors. NAACP Legal Defense & Educ. Fund, Inc. v. Committee on Offenses Against Admin. of Justice, 204 Va. 693 , 133 S.E.2d 540 (1963).

Statute held not violative of right of free speech. - See Weston v. Commonwealth, 195 Va. 175 , 77 S.E.2d 405 (1953), construing former § 18.1-292 (3) [now § 18.2-456 (3)], relating to contempt.

Virginia privacy statute. - Subsection A of § 8.01-40 , which prohibits unauthorized use of name or picture of any person, as applied to the facts of the instant case, where plaintiff's name was prominently featured in a real estate flyer was not constitutionally invalid under either the free-speech provisions of the First Amendment to the federal Constitution or this section. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Section 18.2-374, which relates to distribution of obscene material, does not contravene this section of the Constitution of Virginia. Star News, Inc. v. Commonwealth, No. 1785-96-1 (Ct. of Appeals Jan. 6, 1998).

County's public nudity ordinance did not violate free speech rights. - Owners of a strip club were properly convicted of aiding and abetting an erotic dancer in violating a county public nudity ordinance that prohibited certain types of nude dancing; the ordinance did not violate any free speech rights because it had an express exception for theatrical performances, it was a content neutral restriction of speech in banning conduct, and it was a de minimis restriction on artistic erotic speech. Boyd v. County of Henrico, 42 Va. App. 495, 592 S.E.2d 768, 2004 Va. App. LEXIS 92 (2004).

Applied in KMA, Inc. v. City of Newport News, 228 Va. 365 , 323 S.E.2d 78 (1984).

II. JUDICIAL PROCEEDINGS.

Pretrial suppression hearings should be open absent overriding interest. - Absent an overriding interest articulated in findings, pretrial suppression hearings should be open to the public. This holding is mandated by this section. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Criminal competency hearings to be open. - Since the public has a right to know that the incompetent are not tried and the competent do not evade trial, the news media has a qualified right to attend criminal competency hearings. In re Times-World Corp., 25 Va. App. 405, 488 S.E.2d 677 (1997).

No physician-patient privilege supersedes the media's constitutional right to attend a criminal competency hearing, because the defendant's mental condition is at issue in such a proceeding. In re Times-World Corp., 25 Va. App. 405, 488 S.E.2d 677 (1997).

Closure of hearing justified when fair trial jeopardized. - An "overriding interest" exists to justify closure of a pretrial suppression hearing when a fair trial for the defendant is likely to be jeopardized by an open pretrial hearing. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Alternatives must be considered before closure employed. - Before closing a pretrial suppression hearing to the public, the trial court should consider whether there are alternatives available which would eliminate the likelihood of prejudice to the accused. While there are fewer alternatives available at pretrial than at trial, they should be explored before closure is employed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Only part of hearing should be closed where possible. - When it is not possible to hold the entire pretrial suppression hearing in public, only that portion that would be prejudicial should be closed. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Right of public to be heard on closure issue. - Before a pretrial suppression hearing is closed, interested members of the public should have the right to be heard, with the assistance of counsel if desired. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Trial judges erred in ordering closure of a pretrial suppression hearing without affording the intervenors (the press) a hearing on the merits. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Notice to public of closure motion. - For intervention to take place, the public must have notice of the closure motion. For this reason, motions to close a pretrial suppression hearing should be made in writing and filed with the court before the day of the hearing involved, and the public must be given reasonable notice that a closure hearing will be conducted. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Receipt of information in camera at closure hearing. - There is the danger that the information sought to be kept from the public will be disclosed in the hearing on closure, thereby negating the purpose of closure. To protect against this, the trial court may hear or observe this information in camera in order to establish to what extent its release would be prejudicial to the defendant. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Burden at closure hearing. - At the hearing on closure of a pretrial suppression hearing, the burden will be on the moving party to show that an open hearing would jeopardize the defendant's right to a fair trial. The intervenors, however, shall have the burden of showing that reasonable alternatives to closure are available. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Closure of sentencing hearing. - Trial court did not abuse its discretion in denying a broadcaster's request to have a camera in the courtroom during defendant's sentencing hearing because coverage was not permitted during the trial, the "coverage allowed" guidelines were never implicated, the trial court properly considered the impact media coverage could have on a pending civil suit and the opposition of the Commonwealth and defendant, and the broadcaster conceded that there was no constitutional right to have cameras in a courtroom. Va. Broad. Corp. v. Commonwealth, 286 Va. 239 , 749 S.E.2d 313, 2013 Va. LEXIS 133 (2013).

Findings required upon entry of closure order. - Upon entering a closure order, the trial judge shall articulate on the record his findings that the evidence supports the moving party's contention that an open hearing would jeopardize the defendant's fair-trial rights, that alternatives will not protect these rights, and that closure will be effective in protecting them. Richmond Newspapers, Inc. v. Commonwealth, 222 Va. 574 , 281 S.E.2d 915 (1981).

Freedom of speech in contempt proceedings. - To find the line where the right of free speech ends and its abuse begins is not always an easy task. In contempt proceedings, this line must usually be defined by the courts themselves, and in such cases its location is to be established with especial care and caution. Boorde v. Commonwealth, 134 Va. 625 , 114 S.E. 731 (1922).

Denial of access to criminal proceeding. - The proper test to be applied in determining whether there is a constitutional right of access to documents is the test applied by the United States Supreme Court where there has been a denial of access to criminal proceedings. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

While some courts have held that a first amendment right of access extends to documents filed in a criminal proceeding, the Court of Appeals has declined to follow those decisions. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

Conditions of probation. - In a case in which defendant pleaded guilty to aggravated sexual battery of a child under the age of 13, the circuit court erred in ordering that, as a condition of probation, defendant could have no use of any device that could access the internet unless approved by his probation officer because there was no evidence that computers or the internet played any role in defendant's offense; the circuit court articulated no justification for how imposing that restriction on defendant's fundamental right to free speech would serve any rehabilitative or public safety purpose; and that restriction burdened substantially more speech than was necessary to further the government's legitimate interests and was not narrowly tailored. Fazili v. Commonwealth, 71 Va. App. 239, 835 S.E.2d 87, 2019 Va. App. LEXIS 281 (2019).

The test for determining whether a constitutional right of access is available involves a two-part inquiry: (1) whether the place and process have historically been open to the press and general public; and (2) whether public access plays a significant positive role in the functioning of the particular process in question. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

No access to criminal evidence. - Newspapers could not obtain access to evidence used in a criminal trial to subject it to re-testing under the First Amendment or Va. Const., Art. I, § 12, as access to such evidence had not been historically extended to the press and the general public and permitting the re-testing would not play a significant positive role in the functioning of the judicial process. Globe Newspaper Co. v. Commonwealth, 264 Va. 622 , 570 S.E.2d 809, 2002 Va. LEXIS 156 (2002).

Civil and criminal discovery. - While there are some obvious differences between civil and criminal discovery, for purposes of analysis of a constitutional right of access, they are the same. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

Public access to the discovery process may have a negative impact upon the administration of justice and the functioning of the system. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

Discovery materials subpoenaed by the Commonwealth. - There is no constitutional right of access to the discovery materials subpoenaed by the Commonwealth. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

Pretrial discovery materials not yet part of the judicial record. - The common law right of access to "judicial records" does not extend to pretrial discovery materials collected by the parties but not yet a part of the judicial record in the proceedings. In re Worrell Enters., Inc., 14 Va. App. 671, 419 S.E.2d 271 (1992).

CIRCUIT COURT OPINIONS

Standing. - Town had no standing under the constitution to bring an action seeking a declaration that a reapportionment ordinance a county adopted was unconstitutional because it was not a citizen. Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 2002 Va. Cir. LEXIS 480 (Lancaster County Oct. 10, 2002).

Statements imputing unfitness to perform the offices or duties of employment or lack of integrity in the discharge of those duties contained primarily facts, which could be objectively evaluated, and thus, they were not protected as expressions of opinion under U.S. Const., Amend. I, and Va. Const., Art. I, § 12. Jennings v. Jones, 70 Va. Cir. 56, 2005 Va. Cir. LEXIS 294 (Petersburg 2005).

In an action concerning protests in Richmond, the individual plaintiffs lacked standing as to the claims under this section, because they were not challenging the constitutionality of a law or ordinance. Va. Student Power Network v. City of Richmond,, 2021 Va. Cir. LEXIS 30 (Richmond Jan. 20, 2021).

Political speech. - Because U.S. Const. amend. I, and Va. Const., Art. I, § 12, did not require the owner of a privately-owned shopping center to allow a candidate to distribute political materials, the candidate did not state a cause of action upon which relief could be granted; therefore, the owner's and the shopping center's demurrer was sustained. Collins v. Shoppers' World, L.C., 71 Va. Cir. 133, 2006 Va. Cir. LEXIS 81 (Albemarle County 2006).

Retaliation by police. - Protesters were not entitled to an emergency motion for a temporary injunction because, even if they had a private cause of action, their declaratory judgment claim did not present a justiciable controversy where there was a serious question as to whether they would be able to prove that the police action in response to their protest was in retaliation of their expression of free assembly and speech or that declaring an unlawful assembly was pretextual where they admitted that 150 people set up an encampment, blocked the city streets, and interfered with traffic, and an injunction would constitute an unwarranted intrusion into and interference with the ability of law enforcement to do its job during an unprecedented period of civil unrest. Va. Student Power Network v. City of Richmond, 105 Va. Cir. 259, 2020 Va. Cir. LEXIS 108 (Richmond June 30, 2020).

Pure expressions of opinion. - While there is no wholesale defamation exemption for anything that might be labeled "opinion," pure expressions of opinion, not amounting to "fighting words," are protected by the First Amendment of the Constitution of the United States and Va. Const., Art. I, § 12, and, therefore, only statements capable of being proven true or false are actionable. Ziglar v. Media Six, Inc., 61 Va. Cir. 173, 2003 Va. Cir. LEXIS 36 (Roanoke 2003).

Messages on internet message board. - Messages posted on an internet message board did not support the company's claim that the customers conspired to willfully and intentionally injure the company in reputation, trade, or business as they were non-defamatory or matters of opinion - both protected by First Amendment. Xtreme 4x4 Ctr., Inc. v. Howery, 65 Va. Cir. 469, 2004 Va. Cir. LEXIS 229 (Roanoke 2004).

Tattooing. - Process of tattooing is not sufficiently communicative in nature so as to rise to the plateau of an important activity encompassed by Va. Const., Art. I, § 12. Therefore, an ordinance banning tattooing did not violate petitioner's right of free speech. Blue Horseshoe Tattoo, V, Ltd. v. City of Norfolk, 72 Va. Cir. 388, 2007 Va. Cir. LEXIS 151 (Norfolk 2007).

Class of employees of community services board too narrow. - Staff members failed to state a claim for an intentional tort for wrongful discharge; the constitution does not provide an explicit right for a narrow class of persons, namely employees of Community Services Board, to exercise their right of free speech, and it has no provision for employee rights and does not create a class of persons directly entitled to protection into which employees of the Community Services Board belong. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

Motion to quash subpoenas. - Third parties' First Amendment objections to production were subject to a balancing of interests; need, relevancy, strength of case, and burdensomeness were issues to be evaluated and judged along with the "chilling effect" of the discovery on the right of citizens to correspond with their elected officials. Compliance with the subpoenas was stayed until further order of the court and only after the court had dealt with any pretrial dispositive motions as to the instant equal protection claim and such discovery was directed by court order. Northern Va. Cmty. Hosp., L.L.C. v. Loudoun County Bd. of Supervisors, 72 Va. Cir. 174, 2006 Va. Cir. LEXIS 308 (Loudoun County 2006).

Defamation actions. - Because the statements attributable to the director of an agency and alleged in the complaint to be defamatory were expressions of opinion, as they could not reasonably be interpreted as stating actual facts about a person, they could not, as a matter of law, support a cause of action for defamation. Holland v. Hadfield, 74 Va. Cir. 288, 2007 Va. Cir. LEXIS 272 (Chesapeake 2007).

Father's demurrers to an attorney's complaint alleging that statements the father made in a letter were defamatory and defamatory per se were overruled because the attorney sufficiently stated causes of action; the statements contained in the father's letter imputed conduct tending to injure and prejudice the attorney in his profession, and the father made the statements knowing that they were false or with reckless disregard for their truth; the father was not shielded by absolute or qualified privilege because the allegedly defamatory statements were made after the child support litigation had ended, and just as the absolute privilege did not extend to statements made prior to litigation, it likewise did not extend to statements made after the conclusion of the litigation. Donner v. Rubin, 77 Va. Cir. 309, 2008 Va. Cir. LEXIS 238 (Chesapeake 2008).

Most of a surgeon's comments about an anesthesiologist were not actionable as defamation because the comments indicated the surgeon's medical critiques of the anesthesiologist and were opinions which did not state actual facts and were protected by Va. Const., Art. I, § 12; however, an alleged statement that the anesthesiologist euthanized a patient was actionable. Cashion v. Smith, 82 Va. Cir. 64, 2010 Va. Cir. LEXIS 240 (Roanoke Dec. 8, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Options of judge when a temporarily detained patient cannot safely be brought for a public civil commitment hearing within statutory time parameters: first, a judge may continue the hearing beyond the prescribed forty-eight-hour time frame when such continuance serves to protect the due process or statutorily created rights of the patient; second, a judge may order the hearing closed for good cause upon motion of the patient or his attorney and conduct the hearing in the holding or seclusion room; third, in extreme situations, a judge may hold the hearing in the public hearing room outside the patient's presence, after a finding of good cause to do so for the patient's benefit, trusting that the patient's interests will be adequately represented by his attorney and others appearing on his behalf; and, finally, a judge may hold the hearing within the requisite time period and within the "presence" of the patient and the public, yet still address important safety concerns by using video conferencing procedures where available. See opinion of Attorney General to The Honorable S. Lee Morris, Chief Judge, Portsmouth General District Court, 03-103 (12/18/03).

Door-to-door solicitation and/or dissemination of materials in condominium. - A house rule enacted by the board of directors of a condominium unit owners' association, which forbids door-to-door solicitation and/or dissemination of materials, either by residents or others, without prior approval of the board of directors does not offend the Virginia Constitution. See opinion of Attorney General to The Honorable Vincent F. Callahan Jr., Member, House of Delegates, 00-035 (6/5/00).

Local ordinances found constitutional. - A noise control ordinance that prohibits certain animal noises at certain times is constitutional under the constitutions of Virginia and of the United States. See opinion of Attorney General to The Honorable Christopher K. Peace, Member, House of Delegates, 11-065, 2011 Va. AG LEXIS 35 (6/22/11).

Unconstitutional actions. - An absolute prohibition on political booths is not constitutionally permissible and charging a higher fee for such booths than that charged other participating individuals or organizations is presumptively unconstitutional unless justified by a compelling governmental interest, and unless it is narrowly drawn to meet that interest. See opinion of Attorney General to The Honorable Richard L. Morris, Member, House of Delegates, No. 14-064, 2014 Va. AG LEXIS 67 (12/18/14).

I. CONGRESSIONAL DISTRICTS.

Standing. - Fact that a putative complainant's voting district may be affected by the reconfiguration of another district is insufficient to establish the particularized injury required for standing in a redistricting case. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Equality of inhabitants required. - Any plan of districting which is not based upon approximate equality of inhabitants will work inequality in right of suffrage and of power in elections of the representatives in Congress. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

Mathematical exactness not contemplated. - Mathematical exactness, either in compactness of territory or in equality of population, cannot be attained, nor was it contemplated in the provisions of this section. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

No small or trivial deviation from equality of population would justify or warrant an application to a court for redress. It must be a grave, palpable and unreasonable deviation from the principles fixed by the Constitution. No exact dividing line can be drawn. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

Community of interest is not the only requirement, or even one of the requirements spelled out in the Constitution. There must be, as nearly as practicable, an equal number of inhabitants in the districts. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

Deference to legislature's judgment as to communities of interest and geographic isolation. - A federal court must defer to the legislature's judgment about the significance of communities of interest and geographic isolation in the reapportionment process if the state has enacted an otherwise valid reapportionment plan. Cline v. Robb, 548 F. Supp. 128 (E.D. Va. 1982).

This section places limitations on the discretion of the legislature, and whether or not a particular act exceeds those limitations becomes a judicial question when raised by the proper parties in a proper proceeding. See Brown v. Saunders, 159 Va. 28 , 166 S.E. 105 (1932).

The Apportionment Act of 1952 is invalid. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

The disparities in population existing in the ten congressional districts of Virginia as constituted by the Redistricting Act of 1952, violate the requirements of this section. Wilkins v. Davis, 205 Va. 803 , 139 S.E.2d 849 (1965).

II. SENATORIAL AND HOUSE OF DELEGATES DISTRICTS.

Substantially equal representation is required by Fourteenth Amendment. - The equal protection clause of the Fourteenth Amendment to the United States Constitution demands that apportionment accord the citizens of the State substantially equal representation. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

State legislative malapportionment, whether resulting from prolonged legislative inaction or from failure to comply sufficiently with federal constitutional requisites, although reapportionment is accomplished periodically, falls equally within the proscription of the equal protection clause of the Fourteenth Amendment to the federal Constitution. Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964), aff'd, 379 U.S. 694, 85 S. Ct. 713, 13 L. Ed. 2d 698 (1965).

The equal protection clause of the United States Constitution requires that a state make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

The equal protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. To implement this constitutional requisite, a state must make an honest and good faith effort to construct districts as nearly of equal population as is practicable. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

More flexibility permissible with respect to state legislative reapportionment. - In the implementation of the basic constitutional principle, equality of population among the districts, more flexibility is constitutionally permissible with respect to state legislative reapportionment than in congressional redistricting. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

No adequate political remedy to obtain legislature reapportionment appears to exist in Virginia. Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

In Virginia, population is the overriding consideration in any distribution of representatives. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

But is not sole measure of justness of apportionment. - While predominant, population is not the sole or definitive measure of districts when taken by the equal protection clause. Compactness and contiguity of the territory, community of interests of the people, observance of natural lines, and conformity to historical divisions, such as county lines, for example, are all to be noticed in assaying the justness of an apportionment. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

Although population is the predominant consideration, other factors may be of some relevance in assaying the justness of the apportionment. Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964), aff'd, 379 U.S. 694, 85 S. Ct. 713, 13 L. Ed. 2d 698 (1965).

And exactitude in population is not demanded by the equal protection clause. But there must be a fair approach to equality unless it be shown that other acceptable factors may make up for the differences in the number of people. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

But if inequity on population basis is proven, burden is on defendants to show other factors. - In a suit attacking the legislative apportionment statutes, once the plaintiff had proven the inequity of the allotment of representatives on the basis of population, the burden to adduce evidence of the presence of other factors which might explain this disproportion passed to the defendants. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

Traditional redistricting elements such as preservation of existing districts, incumbency, voting behavior, and communities of interest, are legitimate legislative considerations when creating a redistricting plan. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Strict mathematical equality is not imposed on state legislatures by the Constitution. Some deviations from the ideal are permissible if they are based on legitimate considerations incident to the effectuation of a rational state policy. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

Authoritative construction of "contiguous and compact territory" can only be made by the Supreme Court of Virginia, not federal courts. Cosner v. Robb, 541 F. Supp. 613 (E.D. Va. 1982).

Contiguous and compact territory. - Direct evidence, as well as the shape and racial characteristics of the Third Congressional District (pursuant to former § 24.2-302), prove that race predominated in drawing its boundaries, therefore strict scrutiny applies. The Commonwealth has failed to prove that District 3 satisfies a compelling state interest or that it is narrowly tailored. Moon v. Meadows, 952 F. Supp. 1141, 1997 U.S. Dist. LEXIS 1560 (E.D. Va. 1997).

Article II, § 6, of the Constitution of Virginia, requires electoral districts to be composed of contiguous and compact territory, but the Legislature's general disregard for keeping regions and localities intact, and its abandonment of compactness illustrate that traditional principles were subordinate to the principal reason for the make-up of District 3, the creation of a safe black district. Moon v. Meadows, 952 F. Supp. 1141, 1997 U.S. Dist. LEXIS 1560 (E.D. Va. 1997).

While ease of travel within a district is a factor to consider when resolving issues of compactness and contiguity, resting the constitutional test of contiguity solely on physical access within the district imposes an artificial requirement which reflects neither the actual need of the residents of the district nor the panoply of factors which must be considered by the general assembly in the design of a district, and short of an intervening land mass totally severing two sections of an electoral district, there is no per se test for the constitutional requirement of contiguity; each district must be examined separately. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Under principles applicable to a court's review of the requirement of contiguity and compactness of a voting district, a redistricting plan is entitled to a strong presumption of validity and will be invalidated only if it clearly violates or is plainly repugnant to a constitutional provision, and when the constitutionality of a plan depends on facts, the determination of those facts by the legislature can be set aside if it is clearly erroneous, arbitrary, or wholly unwarranted, but if the evidence offered in support of the facts in issue would lead objective and reasonable persons to reach different conclusions, the legislative determination is considered fairly debatable and such a determination must be upheld by the courts. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Virginia Const., Art. II, § 6, speaks in mandatory terms, stating that electoral districts "shall be" compact and contiguous, but this directive does not override all other elements pertinent to designing electoral districts, and, in making reapportionment decisions, the general assembly is required to satisfy a number of state and federal constitutional and statutory provisions in addition to designing districts that are compact and contiguous; to do this requires the general assembly to exercise its discretion in reconciling these often competing criteria. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Voting district that contains two sections completely severed by another land mass do not meet the constitutional requirement of compactness and contiguity, in Va. Const., Art. II, § 6, and the geography and population of the Commonwealth of Virginia necessitate that some electoral districts include water, and land masses separated by water may nevertheless satisfy the contiguity requirement in certain circumstances. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Constitution of Virginia does not require districts to be as compact as possible; Va. Const. art. II, § 6 simply requires that districts shall be compact. Vesilind v. Va. State Bd. of Elections, 295 Va. 427 , 813 S.E.2d 739, 2018 Va. LEXIS 65 (2018).

Circuit court properly denied challengers' request to declare that legislative districts violated the constitution because evidence was presented that would lead reasonable and objective people to differ regarding the compactness of the districts; the evidence presented by the challengers and the Virginia State Board of Elections and the House of Delegates was sufficient to establish that the constitutional validity of the districts under the compactness requirement was fairly debatable. Vesilind v. Va. State Bd. of Elections, 295 Va. 427 , 813 S.E.2d 739, 2018 Va. LEXIS 65 (2018).

"Compact." - The Supreme Court did not agree with complainants' argument that the word "compact," as used in the term "contiguous and compact territory" in this section, means that a senatorial district must not only be "compact in form," it must also be "compact in content." The use of the words "contiguous and compact," as joint modifiers of the word "territory" in this section, clearly limits their meaning as definitions of spatial restrictions in the composition of electoral districts. Jamerson v. Womack, 244 Va. 506 , 423 S.E.2d 180 (1992).

Only residents of districts alleged to violate the compactness and contiguity requirements of Va. Const., Art. II, § 6, or non-residents showing specific evidence of a particularized injury, have standing to challenge the legislature's redistricting plan. Wilkins v. West, 264 Va. 447 , 571 S.E.2d 100, 2002 Va. LEXIS 155 (2002).

Use of single-member districts to achieve population equality satisfies equal protection. - The proper test for determining whether a state apportionment plan violates the equal protection clause is whether it has a rational basis. The attainment of population equality among single-member districts satisfies this test and establishes the constitutionality of Acts 1982, Sp. Sess., c. 1. Cline v. Robb, 548 F. Supp. 128 (E.D. Va. 1982).

And is within ambit of legislative discretion. - The equal protection clause requires districts of substantially equal population. The United States Supreme Court has approved single-member districts in reapportionment plans devised by district courts. In view of this, it would be anomalous, indeed, to hold that a state legislature cannot choose to reapportion by the use of single-member districts. Therefore, in Acts 1982, Sp. Sess., c. 1, the General Assembly's choice of single-member districts to achieve equality of population was well within the ambit of legislative discretion. Cline v. Robb, 548 F. Supp. 128 (E.D. Va. 1982).

Federal electoral college scheme does not provide guide. - The fact that the maximum variances in the populations of various state legislative districts are less than the extreme deviations from a population basis in the composition of the federal electoral college fails to provide a constitutionally cognizable basis for sustaining a state apportionment scheme under the equal protection clause of the Fourteenth Amendment to the federal Constitution. Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964), aff'd, 379 U.S. 694, 85 S. Ct. 713, 13 L. Ed. 2d 698 (1965).

In determining the validity of a legislative apportionment there is no difference in status between the senators and delegates in their disposition throughout the State. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

Granting representation to political subdivisions as such. - The decision of the General Assembly in former § 24.1-12.1 (see now § 24.2-304.01 et seq.), to provide representation to subdivisions qua subdivisions in order to implement this section is valid when measured against the equal protection clause of the Fourteenth Amendment. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

The legislature's plan for apportionment of the House of Delegates in former § 24.1-12.1 (see now § 24.2-304.01 et seq.), may reasonably be said to advance the rational state policy of respecting the boundaries of political subdivisions. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

Fragmentation of political subdivisions to create single-member districts. - A state's choice to maintain the integrity of political subdivisions at the expense of some deviation from the principle of population equality is recognized as legitimate. Reasonable departure from strict mathematical equality is permitted. However, this does not hobble legislative discretion to opt for single-member districts that require the fragmentation of counties and municipalities. Indeed, precedent supports the choice of the General Assembly in Acts 1982, Sp. Sess., c. 1 to reapportion the state into single-member districts that cut across county lines. Cline v. Robb, 548 F. Supp. 128 (E.D. Va. 1982).

Combining three senatorial districts into one multimember district. - Where a district court was confronted with plausible evidence of substantial malapportionment with respect to military personnel and the fear that too much delay would have seriously disrupted the fall 1971 elections, the district court did not abuse its discretion in fashioning the interim remedy of combining the three senatorial districts into one multimember district. Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320, modified, 411 U.S. 922, 93 S. Ct. 1475, 36 L. Ed. 2d 316 (1973).

Reapportionment bill which is limited to certain districts only does not violate this section by denying the opportunity to reapportion other districts as well, where it seeks to correct deficiencies in an earlier reapportionment act which affected all districts in the State, which earlier act afforded delegates and residents of other areas an opportunity to participate in the deliberation and to vote on the composition of all districts, and where all delegates could vote on the joint resolution which limited the scope of the latter reapportionment bill. Cosner v. Robb, 541 F. Supp. 613 (E.D. Va. 1982).

1962 apportionment statutes held unconstitutional. - Former §§ 24-12 and 24-14, as amended in 1962, represented an unconstitutional, invidious discrimination adverse to Arlington, Fairfax and Norfolk, hence they were annulled and declared invalid. Mann v. Davis, 213 F. Supp. 577 (E.D. Va. 1962), aff'd, 377 U.S. 678, 84 S. Ct. 1441, 12 L. Ed. 2d 609 (1964).

1981 apportionment statute unconstitutional. - Former § 24.1-12.2, as amended by Acts 1981, Sp. Sess., c. 12, which reapportioned the electoral districts for the House of Delegates, and which included deviations among populations ranging from 22.13% to 27.72%, was facially unconstitutional because the deviation among the populations of the districts that it created exceeded the limits tolerated by the equal protection clause. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

In addition to its facial invalidity, former § 24.1-12.2 as amended by Acts 1981, Sp. Sess., c. 12 violated the equal protection clause and the Virginia Constitution because the State's announced policies either did not necessitate, or were not adequate to justify, the act's population variances. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

But not on the basis of racial discrimination. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

And could be continued in effect for November election. - Former § 24.1-12.2, as amended by Acts 1981, Sp. Sess., c. 12, while unconstitutional, could be continued in effect for the November election since necessary election machinery was already in progress. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

Acts 1982, Sp. Sess., c. 1 does not violate equal protection clause of the Fourteenth Amendment. Cline v. Robb, 548 F. Supp. 128 (E.D. Va. 1982).

The 1991 Reapportionment Act did not violate compactness requirements. - Chancellor did not err in holding that the General Assembly's 1991 Reapportionment Act (the 1991 plan) did not violate the compactness requirements of this section in fixing the boundary lines of the 15th and 18th Senatorial Electoral Districts. Jamerson v. Womack, 244 Va. 506 , 423 S.E.2d 180 (1992).

Annexation statute which provides for changes in voting districts not invalid. - The statute under which portions of the Counties of Fairfax and Alexandria were annexed to the city of Alexandria was not in conflict with this section, although such annexation changed the voting districts of persons residing in the annexed territory. City Council v. Alexandria County, 117 Va. 230 , 84 S.E. 630 (1915).

Effect of omission of Norfolk-based naval personnel from census. - The General Assembly's reliance on 1980 census figures omitting approximately 9,000 Norfolk-based naval personnel from Virginia's population in enacting former § 24.1-12.2, as amended by Acts 1981, Sp. Sess., c. 12, did not deny a member of the House of Delegates from Norfolk equal protection of the laws. Cosner v. Dalton, 522 F. Supp. 350 (E.D. Va. 1981).

CIRCUIT COURT OPINIONS

2001 apportionment statutes held unconstitutional. - Legislative districts were not reasonably accessible to all other parts of the district without having to travel through one or more other districts; as such, the districts are neither contiguous nor compact as required by Va. Const., Art. II, § 6, and were therefore unconstitutional. West v. Gilmore,, 2002 Va. Cir. LEXIS 37 (Salem Mar. 10, 2002).