Judge Travis Lee’s verdict in a Feb. 27 transportation case in Smyth County, Va., faces challenge on due process grounds. Not only does the general district court judge violate clear constitutional protections, he rules based on a preponderance of evidence standard rather than beyond a reasonable doubt.
The case is State of Virginia v. Abigail Tulis, a Tennessee native who returned from the Netherlands to face her accusers in a criminal venue on the charge of “reckless driving, general.”
This transcript of her trial is based on my notes and on her detailed trial preparation notices as to the questions she demanded of Virginia state police trooper Brandon Frye.
We offer this transcript as an example of what I believe is a good way to fight charges under a state transportation statute. Follow what the winners do, not the losers.
Her defeat is a manifest injustice. Abigail did not attempt to argue that she was a private traveler. Instead, presupposing the transportation statute applied to her, she found her defense in the lack of sufficiency in the charging instrument, the Virginia uniform summons, and other grounds regarding due process, including right to counsel of her choice.
She also studied the reckless driving jurisprudence about the elements that must be alleged and proven. There are at least three, and she sought by her interrogation to elicit the state’s evidence that the trooper had evidence for each element. She then argued the elements in final argument, showing he did not have sufficient evidence.
An unjust judge, as if not knowing how the law works, was at least partly impressed, but found her guilty of a “lesser charge,” to the satisfaction of his familiars in the court — trooper Frye and commonwealth attorney Jill Lawson.
This is my transcript of State of Virginia v. Abigail Tulis, Feb. 27, 2020, Smyth County courthouse in Marion, Va. The document has been submitted to the commonwealth’s attorney office for review as it is intended to accompany Abigail’s petition for writ of error.
Denial of counsel, evidentiary hearing
Abigail Tulis begins her appearance by declining to enter a plea, saying she does not understand the charges and wanted to learn more about the nature and cause of the accusations.
She asks if her filings are in the record, several of which had been sent by mail.
“So I will understand these proceedings, are we in criminal, or administrative and civil jurisdiction?”
General district court judge Travis Lee says that his court is involved in both criminal and civil cases.
She follows up, asking if the matter is criminal and whether the burden of proof on the state and is beyond a reasonable doubt. He says it is beyond a reasonable doubt.
He says reckless driving is a criminal matter.
She asks if she has a right to counsel.
Judge Lee says, “Yes.”
She asks if she has a right to a counsel of her choice.
Judge Lee says, “Yes.”
Miss Tulis says her counsel of choice is her father, David Tulis, present in the courtroom, as her next friend and counsel.
Judge Lee asks if he is a member of the Virginia bar and licensed to practice law?
“So, is your answer to my question ‘No”?” she asks.
He says no one can be counsel in Virginia who is not a member of the bar.
“So you are denying me counsel of my choice?”
He repeats that only licensed lawyers can assist as counsel or represent a person in court.
Miss Tulis enters an objection.
Miss Tulis asks for an evidentiary hearing, saying she wants to learn what the state has as evidence against her, and “if there is enough in the state’s evidence to properly evoke the court’s subject matter jurisdiction.” She cites judicial economy as a reason to give her an evidentiary hearing, “to save the trouble of having a trial.”
Judge Lee denies her request and orders she be put to trial.
Miss Tulis asks if submissions she made by mail are in the record. She gets an affirmative reply, with no discussion of any particular document.
Lawson opening argument
Attorney Jill Lawson makes an opening statement.
Tulis opening argument
Miss Tulis quotes a Virginia court case imposing the standard on the proceedings. “To convict, the Commonwealth of Virginia must prove every essential element of the offense beyond a reasonable doubt, with evidence which excludes every reasonable hypothesis of innocence and consistent only with guilt.”
Thompson v. Commonwealth 27 Va . App. 720 *; 501 S.E.2d 438 **; 1998 Va . App. LEXIS 385 ***
She says she had a known legal duty in the use of her car to care for other people, property and cars near her as she used her rental car on the highway. She avers that she did not violate that duty.
She cites the obligation of the state to prove the essential elements of reckless driving, including conditions (which were good), intent (her known legal duty), her actions in her car (control and safe use) and proximity of others (no others injured or endangered).
The statute reads:
Irrespective of the maximum speeds permitted by law [CONDITIONS, totality of circs], any person who drives a vehicle on any highway recklessly [ INTENT / NEGLIGENCE ] or at a speed or in a manner [ACTIONS IN THE CAR] so as to endanger the life, limb, or property of any person /] shall be guilty of reckless driving. Va. Code Ann. § 46.2-852.
“This law, properly applied, protects the innocent from abuse by those in power,” she says.
“The totality of circumstances of my arrest do not meet the burden of proof of reckless driving,” she says.
Trooper as state’s evidence
Ms. Lawson puts Trooper Frye on the stand.
He identifies himself and says the accused was in the right lane and “traveling at a slow rate of speed” in a posted 70 mph zone. “Miss Tulis was swerving and crossing the line in her vehicle,” he says. He came up beside her, he says, and she was “glancing into her lap” and there was a glow from an area in front of her.
He says he pulled her over and charged her with reckless driving.
Tulis examines Frye
Miss Tulis’ efforts to qualify Trooper Frye as a witness were largely denied. According to her script, she sought to determine if he gets private gain for transportation stops, whether he was hurried in an attempt to gain points or merits, and whether he had her safety and welfare in mind or his own purse and career. This line of questioning was denied, including whether he had read the law lately or any court cases.
“Do you have any specialized training in law?”
The DA objects on relevance grounds. Sustained.
“How many traffic stops did you make the evening of Dec 21st?”
The DA objects. Judge sustains.
[Numerous questions on the Tulis script she skips under the hail of objections to her qualifying the witnesss to evaluate his evidence and motives.]
“What is my name?”
“Abigail Tulis,” Officer Frye says.
“Could you describe this person for the judge?”
Mr. Frye reads her description from her Tennessee driver license.
“Do you have any evidence to testify to that there was an accident in which I was involved?”
Mr. Frye says no.
“Do you have any evidence to testify to that I injured anybody the night of Dec. 21?”
Mr. Frye says no one.
“Do you have any evidence to testify to that you, being close to me, were injured or endangered by my use of the road?”
Mr. Frye says no.
She asks about his evidence regarding the essential element of conditions.
“Do you have any evidence that there was much traffic on the road?”
No other traffic, Mr. Frye says.
“Do you have any evidence that there were pedestrians nearby?
Mr. Frye: “There were no pedestrians on U.S. 81.”
“Do you have any evidence you can testify to that I was carrying any passengers (commercial) or any occupant?”
Mr. Frye: “You were alone in the car.”
“Do you have any evidence that anyone’s property was near.”
Mr. Frye at this point in the trial appears to become confused.
“Do you have any evidence that I passed anybody who was pulled over on the side of the road with his or her property?”
Mr. Frye says no one was in the tire changing lane..
“Do you have any evidence you can testify to that I passed other drivers while you were behind me?”
Mr. Frye: “You did not pass anyone.”
“Do you have any evidence you can testify to that this was a road with two way traffic?”
Mr. Frye: “The interstate is two lanes one way.”
“Do you have any evidence you can testify to that there were high winds?”
Mr. Frye: “No winds.”
“Do you have any evidence that the roads were wet?”
Mr. Frye: No wet roads.
The accused Abigail Tulis asks for evidence from the trooper about her actions.
“Do you have any evidence to testify to that I crossed any lanes of traffic while you were following me?”
He says her tires touched the white line.
“Do you have any evidence to testify to that I illegally passed another vehicle?”
Mr. Frye: No.
“Do you have any evidence to testify to that I followed too closely?”
Mr. Frye: Not following anyone too closely.
“Do you have any evidence to testify to that I committed a violation regarding use of the turning signal?
Mr. Frye: No, you did not turn on the turn signal..
“Do you have any evidence you can testify to of my speed?”
Mr. Frye: “You were traveling at 50 mph.” [ Appellant avers this statement of 50 mph is perjured, and not an offense in Virginia law.]
“Do you have any evidence as to the posted speed limit?
Mr. Frye: “The posted speed is 70.”
“Do you have any evidence you can testify to that I was holding my phone?
Mr. Frye: No evidence, but he says her face was illuminated with light from either the dashboard or a wireless phone out of his view.
“Do you have any evidence as to the brightness and screen of the cars radio and control system?”
Mr. Frye says there was glare:“The screen on the console was pretty bright.”
“Do you have any evidence you can testify to that you ran up to my car after you pulled me over?
Mr. Frye: “No, I didn’t run up to the car. I walked up to it as I usually do.”
“Do you have any evidence you can testify to that the accused was sober and alert when you spoke with her?
Mr. Frye: “You gave no indications of DUI.”
“Did you ask if I was having a medical problem?
Mr. Frye: “You seemed fine.”
“Do you have evidence that you did any sort of investigation of the causes and conditions of my car’s adjustments before charging me with a criminal offense?
Mr. Frye: No investigation was required. It was obvious what he had to do. “You were swerving many times over the line and were traveling at 50 mph.” [Testimony intensifies — “many times” though he follows only a short time. Appellant avers this statement is perjured.]
“Do you have any evidence to testify to that you spent more than 90 seconds looking into the situation before you charged me?”
Mr. Frye indicated the traffic arrest was routine in all aspects.
“Do you have any evidence you can testify to, Officer Frye, about your body cam?”
Mr. Frye testifies he had no body cam.
“Do you have any evidence you can testify to about car dash cam?
Mr. Frye says the car did not have a camera.
“Do you have any evidence you can testify to as to whether the defendant left the road and grass beyond?”
Mr. Frye: You did not leave road and go onto the grass.
“Do you have any evidence you can testify to as to whether the defendant left the road and went into the tire-changing lane?”
Mr. Frye: No, you didn’t do that.
“Do you have any evidence you can testify to based on your training, as to whether defendant was jerking the car about?
Mr. Frye indicates negative, stating Miss Tulis was “swerving.”
Do you have any evidence you can testify to that the defendant made aggressive movements in the car?
Mr. Frye indicates no. The red car was just not perfectly in the center.
Do you have any evidence you can testify to that either left tires or right tires touch the white line?
Mr. Frye says her tires touched a white line.
“Do you have any evidence you can testify to as to distance or time you traveled behind the accused?
Mr. Frye says: “A short period of time.”
“Do you have any evidence you can testify to that slight adjustments within the lane were wobbling, swerving?”
Mr. Frye indicates negative.
“Do you have any evidence you can testify to that there was anything beyond momentary movement and variation in lane?”
The DA enters objection to question as repetitive.
Miss Tulis asks him to name her.
“How would you describe me?”
After an objection by Ms. Lawson, he says, “I will describe you based on your driver license.” He says she has blue eyes, fair skinned and blonde.
“Is the uniform police report a routine part of your job?”
Mr. Frye: It is a standard document for troopers.
“Do you believe this form gives the accused sufficient awareness of her alleged crime so that she might defend against your accusation of having broken a law?”
The state’s attorney Lawson objects to the question, saying it is asking the witness to make a legal conclusion.
“Do you have any evidence you can testify to that there are any other charging instruments in this case?
Mr. Frye: “There are no other charging instruments.”
“Are there any other documents that the accused is to have by way of notice?”
Mr. Frye says negative.
“Do you have any evidence you can testify to that the charging instrument relates the charge to the facts?”
DA objects that this is a legal question. The judge sustains the objection. [Question intends to show that in a criminal matter all essential elements of the crime must be identified, described and proven by evidence.]
“Does your charging instrument narrate the alleged facts in terms of the statute?”
The DA objects and the judge agrees.
“Do you remember what you wrote on the form?”
Mr. Frye says he wrote the code number.
“Please look at the form. What does it say right here?”
Mr. Frye says it says “describe charge.”
“Did you do that?”
Mr. Frye says he wrote the name of the charge, “reckless driving, general.”
“Would you say that writing ”46-2-852, reckless driving, general” is describing the charge?”
Officer Frye is confused. The DA makes an objection.
“When I asked you to describe me, did you say, ‘Abigail Tulis’”?
Mr. Frye: “I don’t understand what you are talking about. I don’t understand.” [Outside the courtroom, Trooper Frye was overheard telling another person that the complainant is a “Nazi” and that “he didn’t understand what she had been driving” at in these questions.]
“Do you feel you don’t have to properly notify the defendant and describe what she did to violate the law?”
Objections by DA. The form is approved by the general assembly. Sustained.
“Do accused people have a right to have charges against them given in writing?”
Frye says yes. He gave her the form.
Tulis on stand
Abigail Tulis submits a phone record indicating no use of her phone prior to her arrest at 11 p.m. The record is attached to an affidavit of her brother, Josiah Tulis, keeper of the record of her phone account, and he avers its accuracy. It shows Miss Tulis made a phone call at 11:07 — after the encounter with the trooper. She testified she was on the side of the road and called her mother in Tennessee.
The judge denies her the right to enter her affidavit of the encounter into the record, but tells her she can consult or draw from it to testify.
She testifies she had set cruise control at 69 mph, had been on the road enroute to Tennessee for 10 hours, and taken frequent breaks. Around the time of being trailed by Trooper Frye, she testifies her bluetooth had stopped because she had plugged her phone in for power. She was flipping through looking for a radio station on the car’s standard equipment.
She testifies she was aware of her surroundings, that she had a known legal duty to be careful, mindful, watchful and attentive to the use of a car.
The state’s case
Ms. Lawson rehearses a final argument, saying that Miss Tulis was weaving dangerously, was traveling at 50 mph in a 70 mph zone, and was looking down from time to time to some area out of view of the officer in the car next to hers.
She says Tulis should be found guilty of reckless driving.
Tulis’ final argument
In final argument, Abigail Tulis says there have been no facts to show that her actions met the three essential elements of the statute, which she recites.
Though she does not read the statute, she highlights in argument the three [or four] essential elements.
Irrespective of the maximum speeds permitted by law [CONDITIONS, totality of circs], any person who drives a vehicle on any highway recklessly [ INTENT / NEGLIGENCE ] or at a speed or in a manner [ACTIONS IN CAR ] so as to endanger the life, limb, or property of any person [ PROXIMITY OF OTHERS ] shall be guilty of reckless driving. Va. Code Ann. § 46.2-852.
She highlights road conditions from testimony of Trooper Frye. Dry. No winds. No adverse weather.
She highlights the intent element in her testimony, stating she possessed and knew a known legal duty in using a car or operating a motor vehicle, and that she had not violated that duty in any way.
She also makes mention of the fourth element required to be put into the state’s evidence to win conviction:
Namely, that she had “endangered life, limb or property of any person,” and that that there had to be other people near her in her alleged weaving against whom she imposed a danger.
She notes Trooper Frye admitted no other people were proximate to her as she traveled down the highway.
In her closing argument, she notes that the evidence from Trooper Frye was as follows:
Evidence shows traveler not speeding..
Evidence shows no one was near the car as the cruiser trailed it down the freeway.
Evidence shows no threat or injury to anyone.
Evidence shows no accident, crash or injury.
Evidence shows No evidence Trooper Frye obtained any damage.
Evidence shows the officer admitted he had no body and no dash camera evidence against her.
Evidence shows no damage or threat or to his person.
She says that if there is no damage or corpus delecti, there is no crime and that the state has no standing to prosecute the case.
This hearing, being in criminal court, has to be the “beyond reasonable doubt standard,” she says.
She also argues that no proper charge was filed because the officer provided no narrative by which to provide evidentiary facts that would put her within the operation of the reckless driving law. She highlights that the trooper fails to “describe charge” in his charging instrument, but rather “names” the charge (“reckless driving, general”), indicating he is incompetent and an incompetent witness.
She points out that in testimony he knows the difference between “naming” something and “describing” it. He failed to properly fill out the form with a description of the alleged crime, denying her due process of notice as to the alleged crime. She said the alleged crime “needs to be told exactly.”
Miss Tulis says she was not notified of the essential elements of the charge and that she was from the beginning “baffled” by the case.
She attempts to cite the Tennessee case State v. Garcia. But Judge Lee prevents her from quoting it. She objects, citing the full faith and credit clause of the U.S. constitution pursuant to a notice she had entered into the record with the clerk. He says this provision applies to marriage and driver licenses and to judgments — and not to court cases.
Abigail Tulis cites the Virginia case Spencer v. Norfolk, 051044 (Va. 2006), and paraphrased its holding that “speed alone does not constitute recklessness unless it endangers life, limb, or property.”
She quotes another case: “The law does not impose the duty upon a driver to keep his automobile under complete control at all times.” Gale v. Wilber, 163 Va. 211, 221, 175 S.E. 739, 743
Judge Lee has a duty to find her not guilty, she says.
Judge Lee ruling
When Judge Lee says that he is going to bring into the case a new charge, Miss Tulis objects, saying that the state rested its case — and now a new crime is being alleged? and she is going to be found guilty under a different statute?
The judge says he is authorized to amend the accusation to “improper driving,” which he says is an infraction and not a crime.
Tulis asks if it requires her to come back to the U.S. for a class, and he says it doesn’t. Changing the charge, he says, is something he can do as judge.
Judge Lee thinks about his verdict for two or three minutes.
Breaking silence, Judge Lee recites a narrative of the night of Dec. 21, citing Trooper Frye testimony that Abigail Tulis “was weaving in her lane” and “weaving out of the lane” and doing 50 mph. He says Trooper Frye observed her and saw her looking down and that there was a glare on her face from a light.
He cited the Tulis testimony that the car was a rental, had a bright display and that she was looking for a radio station. He cites the evidence of a phone record showing that no phone call had been made between 7:58 and 11:07, after the arrest was over and Miss Tulis called her mother.
He says that “hearing the evidence” he does “feel that the conduct is guilty,” citing 869, the improver driving statute.
He asks if there is any evidence that applies to the sentencing. Miss Tulis enters her driving record from department of safety in Tennessee, and it says “no history.”
Judge Lee says the accused faces up to a $500 fine.
He rules her guilty of improper driving, saying “it’s not an easy decision.” He stresses he is convinced that she was traveling at 50 mph in a 70 mph zone and says it is “a dangerous speed.” He says it is “dangerous to be below the posted limit” and that it is “dangerous to be playing with the radio.”
“Some people are on the road doing 120 mph, even 140 mph, and it’s extremely dangerous to be doing 50,” he says.
Judge Lee says says “the dangerousness of this conduct” merits a $500 fine.