Johnson v. Commonwealth (1995)

Floyd v. Commonwealth, 219 Va. 575, 577 , 249 S. E. 2d 171, 172 (1978) (“Overruling Floyd’s motions to set aside the verdicts ..., the trial court entered judgments on the verdicts”); Johnson v. Commonwealth, 20 Va. App. 547, 552 , 458 S. E. 2d 599, 601 (1995) (“At Johnson’s sentencing hearing, defense counsel made a motion to set aside the verdict....

That format appeared in Johnson v. Commonwealth, 20 Va.App. 547, 549-50 , 458 S.E.2d 599, 600 (1995) ( en banc ).

"The primary function of [Rule 5A:18] `is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" Johnson v. Commonwealth, 20 Va.App. 547, 553 , 458 S.E.2d 599, 601 (1995) ( en banc ) (citation omitted).

“The trial judge’s ‘imperative duty [to properly instruct the jury] ... is one which can neither be evaded nor surrendered.’ ” Johnson v. Commonwealth, 20 Va.App. 547, 554 , 458 S.E.2d 599, 602 (1995) (en banc) (citation omitted).

"That principle applies even when an objection has not been stated . . . [because the] trial judge's 'imperative duty [to properly instruct the jury] . . . is one which can neither be evaded nor surrendered.'" Johnson v. Commonwealth, 20 Va. App. 547, 554 , 458 S.E.2d 599, 602 (1995) (citation omitted). - 6 - The jury was given two verdict forms. 1 The record establishes that the verdict form that the jury was given for the 1 One form gave the following four options: WE, THE…

In urging this Court to apply the ends of justice exception, the Davises rely on a principle sometimes applied in criminal cases: “when a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter.” Johnson v. Commonwealth, 20 Va. App. 547, 553-54 (1995) (quoting Jimenez v. Commonwealth, 241 Va. 244, 250 (1991)).

Before the final order was entered, Ambers’s court-appointed appellate counsel filed a second motion to set aside the verdict, arguing that the court’s response to the jury’s question during its deliberations was “inadequate as a matter of law.” Quoting Johnson v. Commonwealth, 20 Va. App. 547, 554 (1995) (en banc), Ambers claimed that “[b]y failing to advise the jury that the two charges went ‘hand in hand’ and that acquittal of . . . malicious wounding is acquittal of the …

That statute applies only to an “individual or fiduciary required 221 Va. 754, 757, 758-59 (1981) (applying the exception where appellant was convicted of capital murder but the evidence showed that the victim was “killed during an attempted robbery, rather than in the actual commission of robbery” and thus he had “been convicted of a crime of which under the evidence he could not properly be found guilty”); McKeon v. Commonwealth, 211 Va. 24, 27 (1970) (applying the excepti…

Annotations of cases interpreting the statute are included in the Virginia Code, including several cases holding that “Under the plain language of Code § 18.2-53.1, there can be no conviction for use or attempted use of a firearm when there has been no commission of one of the predicate offenses enumerated in that statute.” Jay v. Commonwealth, 659 S.E.2d 311, 321 (Va. 2008); see also Bundy v. Commonwealth, 259 S.E.2d 826, 828 (Va. 1979); Johnson v. Commonwealth, 458 S.E.2d …

In one case, it was suggested that plain error could be invoked “if good cause exists or if the ends of justice require consideration of the issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App. 1995).

In one case, it was suggested that plain error could be invoked “if good cause exists or if the ends of justice require consideration of the issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App. 1995).

In one case, it was suggested that plain error could be invoked “if good cause exists or if the ends of justice require consideration of the issue.” Johnson v. Commonwealth, 458 S.E.2d 599, 602 (Va. Ct. App. 1995).

See Brown v. Commonwealth, 279 Va. 210 , 217, 688 S.E.2d 185, 189 (2010) (explaining that Code § 8.01-384 only eliminates the need to make a further objection when the "trial court is aware of a litigant’s legal position and the litigant did not expressly waive” that position); cf. Donahue v. Commonwealth, 225 Va. 145, 153 , 300 S.E.2d 768, 772 (1983) (holding that, once the trial judge overruled the defendant’s objection to the admission of a handwritten note, the defendant…

See Kennemore v. Commonwealth, 50 Va.App. 703, 709-13 , 653 S.E.2d 606, 609-11 (2007); see also Wren v. Commonwealth, 66 Va. (25 Gratt.) 989 , 991-96 (1875); McLean, 30 Va.App. at 327-33 , 516 S.E.2d at 719-22 ; Johnson v. Commonwealth, 20 Va.App. 547, 550-54 , 458 S.E.2d 599, 600-02 (1995) (en banc); Shepperson v. Commonwealth, 19 Va.App. 586, 588-89, 591-92 , 454 S.E.2d 5, 7-9 (1995); John L.

“The primary function of the contemporaneous objection rule ‘is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.’” Johnson v. Commonwealth, 20 Va. App. 547, 553 , 458 S.E.2d 599, 601 (1995) (en banc).

Rule 5A:18; see F.E. v. G.F.M., 35 Va. App. 648 , 659 n.3, 547 -5- S.E.2d 531, 536 n.3 (2001) (en banc) (holding that, in light of the appellant’s failure to raise the same issue at trial, “Rule 5A:18 prevents our consideration of this claimed error as a basis for reversal on appeal absent a showing of ‘good cause’ or to ‘attain the ends of justice’”); Johnson v. Commonwealth, 20 Va. App. 547, 553 , 458 S.E.2d 599, 602 (1995) (holding that “the failure to make a timely objec…

Rule 5A:18; see F.E. v. G.F.M., 35 Va. App. 648 , 659 n.3, 547 -5- S.E.2d 531, 536 n.3 (2001) (en banc) (holding that, in light of the appellant’s failure to raise the same issue at trial, “Rule 5A:18 prevents our consideration of this claimed error as a basis for reversal on appeal absent a showing of ‘good cause’ or to ‘attain the ends of justice’”); Johnson v. Commonwealth, 20 Va. App. 547, 553 , 458 S.E.2d 599, 602 (1995) (holding that “the failure to make a timely objec…

“That principle applies . . . [because the] trial judge’s ‘imperative duty [to properly instruct the jury] . . . is one which can neither be evaded nor surrendered.’” Johnson v. Commonwealth, 20 Va. App. 547, 554 , 458 S.E.2d 599, 602 (1995) (citation omitted).

"The primary function of [Rule 5A:18] 'is to alert the trial judge to possible error so that the judge may consider the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals, reversals and mistrials.'" Johnson v. Commonwealth, 20 Va. App. - 4 - 547, 553, 458 S.E.2d 599, 601 (1995) (en banc) (citation omitted).

“The trial judge’s ‘imperative duty [to properly instruct the jury] ... is one which can be neither evaded nor surrendered.’ ” Johnson v. Commonwealth, 20 Va.App. 547, 554 , 458 S.E.2d 599, 602 (1995) (citation omitted).

However, following closing arguments, the court further instructed the jury, sua sponte, that "[i]f [you] determine that the Defendant is guilty of voluntary manslaughter, you may also find [him] guilty of use of a firearm during the commission of a murder." Although such inconsistent verdicts do not provide grounds for reversal on appeal, see Wolfe v. Commonwealth, 6 Va. App. 640, 649-50 , 371 S.E.2d 314, 319-20 (1988), the trial court has an "affirmative duty" to properly …

See Johnson v. Commonwealth, 20 Va.App. 547, 553-54 , 458 S.E.2d 599, 602 (1995) ( en banc ); see also Jimenez v. Commonwealth, 241 Va. 244, 250 , 402 S.E.2d 678, 681 (1991).

See Code § 18.2-53.1. “‘[A] violation [of Code § 18.2-53.1] occurs only when a firearm is used with respect to the [statutorily] specified -5- felonies.’” Johnson v. Commonwealth, 20 Va. App. 547, 554 , 458 S.E.2d 599, 602 (1995) (quoting Bundy v. Commonwealth, 220 Va. 485, 488 , 259 S.E.2d 826, 828 (1979)).

See Johnson v. Commonwealth, 20 Va.App. 547, 553-54 , 458 S.E.2d 599, 602 (1995) (en banc); see also Jimenez v. Commonwealth, 241 Va. 244, 250 , 402 S.E.2d 678, 681 (1991).

Application of the ends of justice exception is appropriate where "[the accused] was convicted for conduct that was not a criminal offense” or "the record ... affirmatively prove[s] that an element of the offense did not occur.” Id. at 221-22 , 487 S.E.2d at 272-73 ; see Johnson v. Commonwealth, 20 Va.App. 547, 553-54 , 458 S.E.2d 599, 602 (1995) (en banc) (holding that trial court has affirmative duty properly to instruct jury on elements of offense and that ends of justice…

See, e.g., Johnson v. Commonwealth, 20 Va. App. 547, 553-54 (1995) (en banc) (applying ends of justice to consider trial court’s failure to properly instruct jury on the elements of charged offense); Webb v. Commonwealth, 64 Va. App. 371, 378-79 (2015) (applying ends of justice exception to consider trial court’s erroneous acceptance of nonunanimous sentencing verdict). - 29 - The Supreme Court of Virginia has held that “if a party fails to timely bring a challenge based on …