Rules of the Virginia Supreme Court

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Important Things to Remember

Rule 5A:18 or 5:25

"The primary thrust of Rule 5A:18 is quite clear.  "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor."  Rule 5A:18.  Applying Rule 5A:18, we have consistently held that we will not consider on appeal issues or arguments which were not first raised in the trial court.  See Andrews v. Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002); Ingram v. Commonwealth, 1 Va. App. 335, 341, 338 S.E.2d 657, 660 (1986).  We have noted that the main purpose of Rule 5A:18 "is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals."  Schwartz v. Commonwealth, 41 Va. App. 61, 71, 581 S.E.2d 891, 896 (2003).  In this case, as in Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890 (1993), Day "failed to obtain a ruling from the court . . . [and] requested no relief.  Because he was denied nothing by the trial court, there is no ruling for us to review. Day contends that the constitutional issue is one that falls within "the ends of justice" exception to Rule 5A:18.  We have held, however, that the mere existence of a constitutional claim does not meet the standard for invoking the exception.  "Rule 5A:18 applies to bar even constitutional claims."  Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).  See also Foster v. Commonwealth, 38 Va. App. 549, 555 n.2, 567 S.E.2d 547, 550 n.2 (2002) (noting that although appellant did not argue that the "ends of justice" exception applied to his claim of an equal protection violation, we found "no basis for its application in this case").

 The "ends of justice" exception only applies when the error is "`clear, substantial, and material,'" Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (citation omitted), and it may be invoked only "when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred."  Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)..... We hold that this issue is barred by Rule 5A:18." Day v Commonwealth, Va. App. (2004 Unpublished). , See Also Johnson v. Commonwealth, 45 Va. App. 113, 609 S.E.2d 58 (2005).

See: Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010). "In analyzing whether a litigant has satisfied the requirements of Rule 5:25, this Court has consistently focused on whether the trial court had the opportunity to rule intelligently on the issue. "If [the] opportunity [to address an issue] is not presented to the trial court, there is no ruling by the trial court on the issue, and thus no basis for review or action by this Court on appeal." Riverside Hosp., Inc. v. Johnson, 272 Va. 518, 526, 636 S.E.2d 416, 420 (2006). An appellate court can only "determine whether or not the rulings and judgment of the court below . . . were correct." Jackson, 179 Va. at 651, 20 S.E.2d at 493. For example, in Eure v. Norfolk Shipbuilding & Drydock Corp., 263 Va. 624, 561 S.E.2d 663 (2002), the trial court twice ruled that the language in a particular agreement was ambiguous and permitted the introduction of parol evidence before reversing its previous rulings and holding that the language was unambiguous. Id. at 628-29, 561 S.E.2d at 665-66. In rejecting a claim that the plaintiff had waived one of her appellate arguments, this Court stated that, "[h]aving ruled on the issue three times, the trial court clearly had the opportunity 'to rule intelligently' on the issue," and therefore the case did not implicate the "concerns" underpinning Rule 5:25. Id. at 631-32, 561 S.E.2d at 667. In George v. Commonwealth, 276 Va. 767, 667 S.E.2d 779 (2008), this Court held that although a defendant had failed to use the term "fatal variance" in his argument to the trial court, he nevertheless "sufficient[ly] put that court on notice of his position regarding the inconsistency between the indictments and the jury instruction." Id. at 773, 667 S.E.2d at 782. Similarly, in Weidman, the plaintiffs failed to object when the trial court orally granted a motion to dismiss. 241 Va. at 43, 400 S.E.2d at 166. However, this Court held that the plaintiffs "repeatedly made known to the court [their] position" both at the hearing when the motion to dismiss was granted and in a motion to rehear. Id. at 44, 400 S.E.2d at 167. Thus, the "opportunity to rule intelligently on the issues presented [was] afforded . . . the trial court." Id.; see also Brown v. Commonwealth, 279 Va. 210, 217-18, ___ S.E.2d ___, ___ (2010) (holding that the Commonwealth made known its position to the trial court, which acknowledged it and thus had the opportunity to rule intelligently on the issue); Raviotta, 264 Va. at 33, 563 S.E.2d at 732 (holding that the trial court was aware of the plaintiff's objection before a matter was submitted to the jury and if the court had agreed with the plaintiff, it could have given the jury a different instruction); Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 5-6 (1991) (holding that although the appellant failed to endorse the final decree or state any objections thereto, he had "made known to the trial court his position" through memoranda and written correspondence prior to the issuance of a final decree and the trial court had "specifically acknowledged the existence of [the appellant's] objections").

See Also: Herring v. Herring, 33 Va. App. 281, 286, 532 S.E.2d 923, 927 (2000)."Ordinarily, endorsement of an order "Seen and objected to" is not specific enough to meet the requirements of Rule 5A:18 because it does not sufficiently alert the trial court to the claimed error."

See Also: Chase v. Commonwealth, 37 Va. App. 194, 555 S.E.2d 422 (2001)  "At trial, Chase asserted the violation of his right under  the Fourth and Fourteenth Amendments of the United States  Constitution to develop potentially exculpatory evidence.   However, he raised no similar state constitutional claim.   Consequently, he failed to preserve a state constitutional issue  for appeal.

See Also: Perry v. Commonwealth, __ Va. App. __, __ S.E.2d __, __ (2011). "Appellant argues that he properly preserved the assignment of error through his motions to strike. We disagree. The Rules of the Supreme Court of Virginia and Virginia's jurisprudence reinforce the maxim that motions to strike the evidence are not the proper vehicles for raising constitutional challenges to the admissibility of hearsay evidence. Motions to strike the evidence challenge "the evidence ... as a matter of law to sustain a conviction." Rule 3A:15(a). "The office of a motion to strike the evidence to challenge the sufficiency, not the admissibility, of the evidence." Poole v. Commonwealth, 211 Va. 258, 260, 176 S.E.2d 821, 823 (1970). Therefore, "[a] litigant may not, in a motion to strike, raise for the first time a question of admissibility of evidence." Woodson v. Commonwealth, 211 Va. 285, 288, 176 S.E.2d 818, 821 (1970). Thus, appellant"s motions to strike failed to preserve the issue for appellate review pursuant to Rule 5A:18."

See Also:  Benderson Development Co. v. Sciortino  236 Va. 136 (1988).  Overturn of Virginia's Sunday Closing Laws


Rule 5:17(c) - Inadequate Argument

"Muhammad argues in his brief that the future  dangerousness instruction given is unconstitutionally vague.  The Court can find no assignment of error that attacks this  instruction on that basis. Furthermore, his one sentence  conclusory argument is inadequate. We will not consider the argument. Rule 5:17(c). "Muhammad v. Commonwealth 269 Va. 451, 611 S.E.2d 537 (2005).


Rule 5A: 20(e). - Opening Brief of Appellant.

"Our conclusion that the Court of Appeals erred by treating the provisions of Rule 5A:20(e) as jurisdictional requirements mandating a dismissal of an appeal when an appellant does not comply with the rule does not leave the Court of Appeals without appropriate remedies. Certainly, the Court of Appeals may, among other things, require an appellant to re-submit the petition for appeal or opening brief, or it may treat a question presented as waived. The Court of Appeals should, however, consider whether any failure to strictly adhere to the requirements of Rule 5A:20(e) is insignificant, thus allowing the court to address the merits of a question presented. By our decision today, we in no way condone an appellant’s failure to comply with Rule 5A:20(e) or any other rule. But, to hold otherwise would mean that, if an appellant did not list cases alphabetically in the table of citations as required by Rule 5A:20(a), dismissal of the appeal would be mandated as a jurisdictional matter. " Jay v. Commonwealth, __,Va.__ S.E.2d. __,__ (2008).


Rule 5:25 - Issue not Raised in Trial Court

"He argues  that prior to 1998, the Virginia capital sentencing scheme  "only contemplated the presentation of victim impact testimony  to the judge prior to the imposition of sentence." To the extent that this statement provides a separate grounds for his assignment of error, it is barred from review because the issue was not raised in the trial court. Rule 5:25. Muhammad v. Commonwealth 269 Va. 451, 611 S.E.2d 537 (2005). , Scialdone v. Commonwealth, 279 Va. 422, 689 S.E.2d 716 (2010).

§ 19.2-266.2 Issues of Constitutionality of criminal charges must be brought in writing before the trial. See Artis v. Commonwealth, Va. App. (unpublished 2008).

Other Documents of Interest

Virginia Rules of Evidence (2012).

Federal Rules of Civil Procedure


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