Docket – April 11, 2019

4th U.S. Circuit Court of Appeals

Va. Dep’t of Corrs. v. Jordan (P), 4th Cir. (Richardson) from EDVA at Richmond (Lauck).

The district court properly quashed a subpoena by two Mississippi death-row inmates who, in support of a challenge to their state’s lethal-injection procedures, sought documents and testimony about Virginia’s execution practices. The district court reasonably found that the petitioners didn’t have a need for further discovery from the Department, a nonparty, that outweighed the burdens the discovery would impose.

Like Mississippi, Virginia carries out executions using a three-drug protocol that includes compounded midazolam. Also like Mississippi, it previously used pentobarbital in place of midazolam. And like Mississippi, Virginia is eager to keep the identity of its drug supplier secret, lest pressure from death-penalty opponents cause the supplier to stop providing the state with drugs for use in executions.

The district court reasonably found it unlikely that the Department would have useful additional information under any of the petitioners’ theories. The Department had already provided documents showing that it, like Mississippi, could not obtain pentobarbital and had been unable to do so for several years. It did not use a single-drug protocol and never had. The Department also produced its execution manual and testimony describing drug storage and testing.

Moreover, the district court reasonably found that both the Department and its drug supplier would be burdened by the disclosure of the supplier’s identity, which most of the outstanding requests sought to uncover. This would harm the supplier’s own confidentiality interest, one recognized by Virginia law. It would also impede Virginia’s ability to carry out executions by chilling Virginia’s current drug supplier, as well as potential future suppliers, from providing drugs for executions.

Nonparties faced with civil discovery requests deserve special solicitude. Here, the request for more discovery was unsupported by a genuine need that outweighed the burdens involved.


Supreme Court of Virginia

Brown v. Warden (P), SCV (per curiam).

The petition for habeas corpus before this court should be dismissed. In 1970, the petitioner was convicted of the murder of a 4-year-old child. His original death sentence was vacated following Furman v. Georgia, 408 U.S. 238 (1972), and he was resentenced to life in prison.

The petitioner asserts that forensic advances have revealed flaws in hair and fiber evidence admitted at his trial. Although he concedes his petition is untimely, but he asserts that, if applied to him, this statutory limitation period would violate the bar against suspension of the writ of habeas corpus as set forth in the Suspension Clause of Article I, Section 9 of the Constitution of Virginia. This court disagrees.

The petitioner challenges only the reliability of the evidence adduced at his trial – not the subject matter jurisdiction of the sentencing court to address his case – and he attempts to present new evidence which, he contends, shows he is actually innocent. The use of the writ to challenge non-jurisdictional claims of the sort the petitioner alleges was unknown to the drafters of Virginia’s Suspension Clause, and they could not have intended to protect a convicted prisoner’s ability to raise them. Accordingly, the petitioner’s inability to now question and present new evidence bearing on his factual guilt or innocence does not violate the Suspension Clause.

In so holding, this court joins numerous other states which have rejected similar challenges to their own limitation periods.

Petition dismissed.

Spear v. Omary (P), SCV (per curiam) from CAV.

The juvenile and domestic relations district court had jurisdiction to modify an award of child support where the plaintiff had earlier withdrawn an appeal from the JDR court to the circuit court. The remand happened automatically by operation of law, and the court of appeals erred in holding otherwise.

The plaintiff had noted an appeal to the circuit court after the JDR court had denied his request to modify child support that had alleged a material change in circumstances. Code § 16.1-106.1(F) effects an “automatic remand” whenever a circuit court enters an order noting the appellant’s withdrawal of an appeal from the JDR court. The statute doesn’t require a circuit court to expressly remand a matter to the JDR court upon a withdrawn appeal. It gives the circuit court the power to order that the case “remain” within its jurisdiction but requires that the case be remanded to the JDR court if the circuit court fails to exercise that power. Here, when the circuit court failed to expressly retain jurisdiction, Code § 16.1-106.1(F) operated to remand the case to the JDR court.

Reversed, vacated, and remanded. Two justices dissented.

Turner v. Commonwealth (P), SCV (per curiam) from CAV.

The appellant was required to register as a sex offender in Idaho. Pursuant to Code § 9.1-902(F)(ii), he was required to register as a sexually violent offender in Virginia. When he failed to reregister within the 90-day period, he was prosecuted and convicted for failing to reregister. The court of appeals properly upheld his conviction.

The plain import of subpart (ii) is to place within the definition of “‘any offense listed in subsection B,’ ‘criminal homicide’ as defined in this section, ‘murder’ as defined in this section, and ‘sexually violent offense’ as defined in this section” all persons convicted of “any offense for which registration in a sex offender and crimes against minors registry is required under the laws of the jurisdiction where the offender was convicted.”

The effect of the statute is to treat some persons convicted in another state differently than some persons convicted in Virginia by imposing on some out-of-state convicts a more onerous registration regime. Although the policy basis for this difference in treatment is not clear, it is not an internal inconsistency in the statute. The plain language interpretation also does not render the statute incapable of operation. Accordingly, this court will not resort to the absurdity canon to circumvent its plain language.


Dominion Res. Inc. v. Alstom Power Inc. (P), SCV (Mims) from DCT.

Virginia law applies the collateral-source rule to a breach-of-contract action where the plaintiff has been reimbursed by an insurer for the full amount it seeks in damages from the defendant. Whether the rule applies to a given case, however, requires a case-specific determination of whether the parties’ expectations, in light of those rationales, support the rule’s application.

Certified question answered in the affirmative.

Coates v. Jones (U), SCV (per curiam) from City of Richmond.

In this medical-malpractice action, the trial court properly declined the to strike two members of the jury venire for cause.

The first prospective juror had a nursing license but was not working in the field of medicine at the time of trial. She stated that, in her own experience as a nurse, she encountered patients who “manipulated sometimes.” When asked if these specific experiences with manipulative patients formed an initial partiality to a healthcare provider, she responded: “Maybe a little bit.” But she expressed no reservations about being able to listen to the evidence from both sides and the instructions of law from the judge and render a decision based on that information. on this record, this court is unable to conclude that the trial court abused its discretion with respect to prospective juror one.

The second prospective juror expressed no concern about applying the law to the facts of the case without resorting to sympathy. He did not worry that there were too may lawsuits “hurting the healthcare community.” He expressed no reservations about being able to listen to the evidence from both sides and the instructions of law from the judge and render a decision based on that information. However, he expressed reservations about the ability to provide a specific dollar figure for amorphous damages like mental anguish. He candidly confessed that he didn’t “have any domain knowledge on how much would be an adequate amount to charge for any kind of recovery.” However, he said that, if the evidence supported a finding of damages, he would be able to render a decision based on the instructions that the court gives you.

Prospective jurors can and often do hold personal opinions on a wide range of subjects like capital punishment, tort reform, or the health care system, and nevertheless be willing and able to set aside their personal opinions to follow the instructions of the court and fulfill their responsibilities as jurors. A plausible reading to the record is that while prospective juror two firmly held certain personal views on what the law ought to be with respect to the preponderance of the evidence and the ability of a citizen juror to fix damages for amorphous harms like mental anguish, the questions posed and his responses to those questions establish that he harbored no bias and was willing to follow the instructions of the court.

Affirmed. Three justices dissented.

Hodnett v. Commonwealth (U), SCV (per curiam) from CAV.

Evidence was sufficient to find the defendant guilty of constructive possession of ammunition as a felon.

The defendant owned the vehicle where the ammunition was found and drove it “all the time.” He’d been in close proximity to the ammunition on the same day that the search warrant was executed, having driven the car alone. Just prior to search, an officer had observed him doing “something on the inside” of the passenger’s side of the vehicle for “a minute or so.” The box of shotgun shells would have been “open and obvious” to anyone looking down at the pouch because it protruded about 3 inches from the back side of the passenger’s seat.

Moreover, the defendant’s conspicuous failure or neglect to have his only alibi witness directly say the ammunition was his, not the defendant’s, is an incriminating circumstance that the factfinder could consider.

Affirmed. Two justices dissented.

Categories: Daily Dockets

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