COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Frank and Senior Judge Bray
Argued at Chesapeake, Virginia
ARTHUR LEE CARTER, JR.
OPINION BY
v. Record No. 0223-02-1 JUDGE ROBERT P. FRANK
FEBRUARY 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
LeeAnne Bierowicz (Bierowicz & Ringer, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Arthur Lee Carter, Jr. (appellant) was convicted by a jury of
voluntary manslaughter, in violation of Code § 18.2-35, unlawful
wounding, in violation of Code § 18.2-51, and unlawful discharge
of a firearm into an occupied dwelling, in violation of Code
§ 18.2-279. On appeal, he contends the trial court erred in (1)
not granting him a continuance to explore further evidence, (2)
not allowing defense counsel to withdraw, and (3) not allowing a
witness to testify after she invoked her Fifth Amendment right
against self-incrimination. For the reasons stated, we reverse.
BACKGROUND
These offenses arose from a shooting on October 2, 1996,
outside 284 Wilson Parkway, Portsmouth, the home of Hazel Gatling.
Gatling, who was in her home, heard arguing outside her residence.
She looked out her front door and saw a lot of people, including
appellant, Jeffrey Hughes, and Shaline Holley, her next-door
neighbor. Gatling testified Hughes and Holley had once lived
together in the house next door. Holley was appellant's current
girlfriend. Gatling saw appellant and Hughes "fussing and
fighting and stuff." She could not recall whether Holley
participated in the argument.
Gatling went upstairs to change her clothes. When she
returned downstairs, she heard three shots. She then realized she
was shot in her "upper leg, upper thigh." When she was observing
the argument outside, Gatling did not see any weapons.
Gerard Waters testified he was on his grandmother's porch
"lollygagging" and "hustling" at the time of the shooting. He
observed Holley near two men who were arguing. Waters testified
he was approximately forty to fifty feet away from the argument.
Waters recognized the men as appellant and Hughes, having
frequently seen both men in the area. According to Waters, the
argument escalated into a physical fight. In the course of the
altercation, appellant pulled out a gun and fired two or three
shots in the direction of Hughes. Waters then saw Hughes fall to
the ground.
The police found Hughes dead at the scene of the argument.
He had been shot once in the head. The autopsy confirmed the
cause of death was "a single close range gunshot wound to the left
side of the head."
Immediately before trial on November 26, 2001, appellant's
counsel moved for a brief continuance, stating:
Some information has come to light to me
this morning that clearly is exculpatory in
nature, one that I was not privy to prior to
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this morning, information that now that I'm
in possession of that information, I'm
unprepared to go forward.
* * * * * * *
This case had originally been in the Public
Defender's Office and through the course of
their investigation, their investigator has
spoken to Ms. Holley. I also had spoken to
Ms. Holley in my office since I was
appointed, since the P.D. withdrew and I was
appointed. In those statements, and there
is no reason to disbelieve, she indicates
that she was present at the scene of the
alleged murder. She was engaged in a
domestic dispute with [Hughes] at the time
of the shooting. She, in fact, said that
she heard gunshots and was, in fact, shot
herself during the incident. As such, we
had subpoenaed her for trial today. In
speaking with her this morning before trial,
she's indicated – she confessed to the
murder.
* * * * * * *
I would not be prepared to go forward on
behalf of my client who stands accused of
these charges without further investigation.
If she gets on the stand and takes the
Fifth, then I would need to have to withdraw
so I can testify as to her incriminating
statement that she made to me out in the
hall.
I would ask the Court for a brief
continuance, possibly to have an
investigator or an independent party
appointed so that we both could talk to Ms.
Holley and notes be taken. I imagine since
the ideal is to produce justice and have the
right person at trial that the Commonwealth
would like the opportunity to speak with her
also.
The Commonwealth responded:
Well, Judge, we're ready for trial this
morning. We've got our witnesses here.
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We're prepared to go forward, however as
much as the thought of a continuance
displeases me, it seems that we do have a
duty to investigate.
While the Commonwealth did not oppose the continuance, 1 the
trial court denied the motion. The court also denied counsel's
motion to withdraw, noting she could renew the motion at a later
time. The trial court then appointed counsel for Holley.
Excepting to the trial court's rulings, counsel argued:
You're putting me in a position that I
cannot fully represent my client to the best
of my ability. My hands are tied. This
information was given to me this morning.
If I had known this information earlier, it
would have affected my trial strategy. It
would have affected my investigation of this
case, and I'm not prepared to go forward.
After the Commonwealth rested, appellant attempted to call
Holley as a witness in his behalf. Holley's attorney advised the
court that Holley intended to exercise her Fifth Amendment
privilege against self-incrimination. Although not under oath,
Holley confirmed her intention to invoke her Fifth Amendment
privilege.
Defense counsel sought to call Holley to the stand, question
her before the jury, and obtain a question-by-question ruling
from the trial court as to the validity of her assertion of the
privilege. The Commonwealth objected. The trial court refused
to allow appellant to put Holley on the stand, stating, "I'm not
going to allow you to ask her in front of the jury about anything
1
When the judge asked if the Commonwealth joined in the
motion for a continuance, the prosecutor responded, "[W]e're
still ready to go forward this morning."
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about this case that maybe she exercises her right not to testify
about. I'm going to honor that."
Appellant's counsel then moved to withdraw, thereby
permitting her testimony regarding Holley's statement that
morning. The trial court denied that motion as well. Counsel
also indicated the examination of Holley could be conducted
outside the presence of the jury. The trial court denied this
request. Appellant did receive leave from the court to make a
subsequent proffer of the questions she intended to ask Holley.
Pursuant to the court's ruling, counsel made a post-trial proffer
of the proposed questions and the anticipated answers. The court
considered the proffer timely made.
Initially, the proffer included the following questions and
answers 2 :
2
The proffered answers appear in brackets following the
question.
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Please state your name. [Shaline Holley.]
Do you know Arthur Lee Carter, Jr.? [Yes.]
What is your relationship with him, Arthur
Lee Carter, Jr.? [Boyfriend.]
What was your relationship with him in
October of 1996? [Family friend.]
Do you know Jeffrey Hughes? [Yes.]
What was your relationship with him, Jeffrey
Hughes, in October of 1996? [Ex-boyfriend.]
Where did you live in October of 1996? [283
Jeffrey Wilson.]
On October 2, 1996, did you have occasion to
see Jeffrey Hughes? [Yes.]
Where? [In front of my apartment.]
Was there any interaction between you and
Jeffrey Hughes? [Yes.]
Describe the encounter. [He approached me,
he being Jeffrey Hughes, and wanted to talk
about my kids. He wanted to take them out.
I said no. He grabbed me. I tried to walk
away. He followed and came to be physically
violent with me.]
Were you injured during the incident? [Yes,
I was shot in the hand.]
Prior to the incident, did you see Arthur
Lee Carter in Jeffrey Wilson [Housing
Development]? [No.]
During the incident, did you see Arthur Lee
Carter in Jeffrey Wilson [Housing
Development]? [No.]
How did the encounter between you and
Jeffrey Hughes end? [He was shot.]
Appellant's counsel contended none of the responses to these
questions would have incriminated Holley. She noted Holley
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previously had provided this information to the police, and the
answers were corroborated "to some extent" by witnesses.
Appellant's counsel further proffered the following
questions and answer:
Did you see who shot him? [Yes.]
Who and why? 3
Counsel conceded "then we would have been getting into the
territory that any possible answers she would have given may have
incriminated her."
ANALYSIS
A. Motion to Continue
Appellant contends the trial court erred in not granting him
a continuance when, the morning of the trial, Holley confessed to
the murder. As a corollary, appellant maintains, since Holley
confessed to his counsel and then invoked her Fifth Amendment
right to not incriminate herself, the trial court erred in not
allowing counsel to withdraw.
The Supreme Court of Virginia has summarized the standard
for appellate review of motions to continue:
Whether to grant or deny a continuance of a
trial is a matter that lies within the sound
discretion of a trial court, and its ruling
will not be reversed on appeal unless it is
plainly wrong. Lomax v. Commonwealth, 228
Va. 168, 172, 319 S.E.2d 763, 765 (1984);
Parish v. Commonwealth, 206 Va. 627, 631-32,
145 S.E.2d 192, 195 (1965). A court must
exercise this discretion in a manner that
3
Counsel did not proffer a specific response to this
question. However, based on counsel's representations prior to
the trial, the court could infer Holley's response to this
question would incriminate her.
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does not prejudice a defendant's right to a
fair and impartial trial or deprive him of
his constitutional right "to call for
evidence in his favor." Va. Const. art. I,
§ 8; Lomax, 228 Va. at 172, 319 S.E.2d at
765; Gilchrist v. Commonwealth, 227 Va. 540,
545-46, 317 S.E.2d 784, 787 (1984). 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. Lomax, 228 Va. at
172, 319 S.E.2d at 765. 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. Stewart v. Commonwealth,
10 Va. App. 563, 569, 394 S.E.2d 509, 513
(1990). Thus, absent a showing of prejudice
to a defendant by the denial of a
continuance, an appellate court will not
find that a trial court abused its
discretion.
Cardwell v. Commonwealth, 248 Va. 501, 508-09, 450 S.E.2d 146,
151 (1994). The Court has also noted, "An ideal system of laws
would be one in which speedy justice is administered, but justice
and not speed should be its paramount purpose." Smith v.
Commonwealth, 155 Va. 1111, 1117, 156 S.E. 577, 579 (1931).
When reviewing the denial of a motion to continue, we
consider several factors.
In determining whether the trial court
properly exercised its discretionary powers,
we look to the diligence exercised by the
moving party . . . . As well, we must
determine if there is anything "in the
circumstances to warrant the conclusion that
the real purpose in moving for a continuance
is to delay or evade trial and not to
prepare for it." Myers & Axtell, Receivers
v. Trice, 86 Va. 835, 838, 11 S.E. 428, 429
(1890).
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Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d
397, 399 (1990). In the present case, the Commonwealth does not
suggest the motion for a continuance was a tactic to delay or
avoid trial or arose due to any failure of counsel to exercise
diligence in obtaining Holley's statement. In fact, the record
indicates the motion was made in good faith.
Both an investigator in the Public Defender's office and
appellant's counsel had interviewed Holley prior to the trial
date. While she admitted being at the scene of the shooting,
Holley never admitted she shot Hughes. The other witnesses never
implicated Holley. Only on the morning of the trial did Holley
admit she shot Hughes.
The Commonwealth now argues appellant's counsel had
sufficient time to investigate the case, even though this
confession occurred just prior to trial. The Commonwealth
contends counsel knew that Holley was present at the scene of the
shooting, that she had a domestic dispute with the victim, and
that Holley was shot during the incident. The Commonwealth
contends counsel had a number of years to fully investigate
4
Holley's role.
The Commonwealth's argument is unpersuasive. The
information known to appellant's counsel did not suggest Holley
was the shooter. Indeed, when commenting on appellant's motion
for a continuance, the prosecutor admitted its "duty to
investigate" Holley's new statement confessing to the crime,
suggesting the Commonwealth also did not suspect Holley prior to
4
The shooting occurred in October of 1996, and the trial
began in November of 2001.
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her confession on the day of trial. 5 Holley's confession was
unexpected by both the Commonwealth and appellant.
Appellant was prejudiced by not being able to further
investigate this last-second confession and to re-evaluate trial
strategy. Appellant's counsel was not permitted time to
re-interview the witnesses to the shooting (or even re-examine
their prior statements) and to determine if their recollections
of events buttressed or rebutted Holley's confession. Counsel
did not have time to investigate whether Holley had confessed to
anyone else. Counsel also could not approach the Commonwealth
for further discussions regarding the charges. Counsel did not
have time to consider use of this confession in her trial
strategy or the requirements for admission of this confession if
Holley invoked her Fifth Amendment right.
Additionally, the confession was material. Without
peradventure, if the jury believed Holley's statement to counsel,
then acquittal of appellant was probable. Cf. Lacks v.
Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715 (1944)
(discussing the standard for granting a continuance in cases
where a witness is unavailable). Appellant's right to a fair
trial and his right to produce evidence on his own behalf was
compromised. The trial court abused its discretion in denying
appellant's motion for a continuance.
B. Fifth Amendment Privilege
5
Nothing in the record suggests the Commonwealth had
exculpatory information implicating Holley in the shooting. The
Commonwealth provided no such information to appellant during
discovery.
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Second, appellant contends the trial court erred in not
allowing counsel to examine Holley on the stand. Appellant
claims, when a potential witness invokes the Fifth Amendment
privilege against self-incrimination, the trial court is required
to determine, question by question, whether each question has
incriminating implications. Appellant argues the court should
not allow the invocation of that privilege to terminate or
prevent any further examination without such a determination.
Under the Fifth Amendment to the United States
Constitution, a witness cannot be compelled to testify if that
testimony would incriminate the witness. The Virginia
Constitution also includes this protection. Va. Const., art. 1,
§ 8. However:
[t]he 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." Namet
v. United States, 373 U.S. 179, 188 (1963).
Cunningham v. Commonwealth, 2 Va. App. 358, 361-62, 344 S.E.2d
389, 391 (1986). For example, a witness may possess
"nonprivileged information that could be used" in the case.
Namet, 373 U.S. at 188 (allowing the government to ask some
questions of witnesses who had invoked their privilege against
self-incrimination).
Therefore, simple invocation of the right by a witness does
not end the responsibilities of the trial court in resolving the
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conflict between the protection of the witness and a defendant's
right to present evidence.
The question whether the privilege is
properly invoked is one for the trial court.
As stated by the Supreme Court in Hoffman v.
United States, 341 U.S. 479 (1951):
"The witness is not exonerated from
answering merely because he declares that in
so doing he would incriminate himself -- his
say-so does not of itself establish the
hazard of incrimination. It is for the
court to say whether his silence is
justified, . . . and to require him to
answer if 'it clearly appears to the court
that he is mistaken.'"
Id. at 486 (citations omitted).
Cunningham, 2 Va. App. at 362, 344 S.E.2d at 391 (ellipsis in
original). See also North Am. Mortgage Investors v. Pomponio,
219 Va. 914, 918, 252 S.E.2d 345, 348 (1979).
To determine whether the privilege is properly invoked, a
trial court need not demand explicit answers to all potential
questions. As the United States Supreme Court explained:
However, if the witness, upon interposing
his claim, were required to prove the hazard
in the sense in which a claim is usually
required to be established in court, he
would be compelled to surrender the very
protection which the privilege is designed
to guarantee. To sustain the privilege, it
need only be evident from the implications
of the question, in the setting in which it
is asked, that a responsive answer to the
question or an explanation of why it cannot
be answered might be dangerous because
injurious disclosure could result. The
trial judge in appraising the claim "must be
governed as much by his personal perception
of the peculiarities of the case as by the
facts actually in evidence." See Taft, J.,
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in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D.
Ohio, 1896).
Hoffman, 341 U.S. at 486-87. The Supreme Court in Hoffman found,
"In this setting it was not 'perfectly clear, from a careful
consideration of all the circumstances in the case, that the
witness is mistaken, and that the answer[s] cannot possibly have
such tendency' to incriminate." Id. at 488 (quoting Temple v.
Commonwealth, 75 Va. 892, 898 (1881)) (emphasis in original).
Citing Temple, the Supreme Court of Virginia agreed with
the "general proposition" that a defendant "should have been
permitted to pose individual questions to the witness and if
[the witness] asserted his Fifth Amendment privilege against
answering any such questions, then the court could have
determined whether the answers thereto would have been
incriminating." Worrells v. Commonwealth, 212 Va. 270, 271-72,
183 S.E.2d 723, 724 (1971). While affirming the trial court
because Worrells did not proffer the individual questions, id.
at 272, 183 S.E.2d at 724, 6 the Supreme Court clearly opined that
a witness who claims the privilege must answer non-incriminating
questions.
Therefore, a witness cannot determine himself if he will be
put on the stand, sworn, and examined. The Fifth Amendment
privilege relates only to incriminating statements, not benign
6
The Court found, "The defendant did not proffer to the
trial court the individual questions he desired to pose to the
witness. We are unable to determine, therefore, whether such
questions would have been relevant and, if so, whether the
witness should have been required to answer them." Worrells, 212
Va. at 272, 183 S.E.2d at 724.
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information and not the entirety of a witness' testimony. The
trial court has the duty to protect the witness' Fifth Amendment
rights, but at the same time, is obligated to "consider the
proposed question and its incriminating implications." Gosling
v. Commonwealth, 14 Va. App. 158, 165, 415 S.E.2d 870, 874
(1992).
The trial court must determine which of the witness'
responses may be incriminating and which are not. The court
could proceed by means of an examination of a witness outside the
presence of the jury. However, as noted in Hoffman, the witness
should not be forced to answer, even in this circumstance, once
it appears the question will elicit incriminating information.
Alternatively, the trial court could proceed by way of a proffer
or any other method that enables the judge to determine the
effect of the examination. This determination, however, must
remain within the realm of the trial court, not the witness.
In the instant case, appellant's counsel indicated Holley
had relevant testimony that was not self-incriminating. Counsel
indicated Holley had given statements to the police claiming
appellant was not present when Hughes was shot. Such a
statement, if given as testimony by Holley, was relevant and
material to appellant's defense, independent of her confession.
We do not know what Holley's response would have been, as she was
not permitted to take the stand, but appellant proffered her
answers to various questions, including a statement that
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appellant was not at the scene. 7 The trial court never ruled on
whether this response was incriminating. 8
The Commonwealth argues the trial court correctly declined
to allow Holley to testify because any answers she gave would
7
The Commonwealth did not object to the proffer.
8
Although it accepted the proffer, the trial court ruled on
appellant's request for permission to question Holley prior to
introduction of the proffer. In fact, given the continuance was
not granted, appellant had no time to prepare a proffer when he
made the request to question Holley. The court did know,
however, that Holley had confessed to the shooting in
contradiction of her previous statements and that her previous
statements contained exculpatory information concerning
appellant.
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have placed her at the center of the crime. The Commonwealth
correctly cites Gosling for the proposition that the court must
find "'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 [to
incriminate].'" 14 Va. App. at 165, 415 S.E.2d at 874 (quoting
Temple, 75 Va. at 898) (emphasis omitted). However, this
proposition presupposes the trial court considered whether the
response or potential response to a particular question would
tend to incriminate the witness, as the trial court did in
Gosling, 14 Va. App. at 166, 415 S.E.2d at 874.
We do not suggest the trial court must have a witness who
invokes the privilege against self-incrimination take the stand
under all circumstances. We simply underscore Gosling's mandate
that the court "consider the proposed question[s] and [their]
incriminating implications." Id. at 165, 415 S.E.2d at 874. On
remand, if Holley again invokes her privilege, the trial court
must abide by the precepts in Gosling. The court cannot simply
rule that one incriminating question taints the entire
examination without considering the remaining questions.
C. Motion to Withdraw
Finally, appellant argues the trial court erred in not
allowing counsel to withdraw. Appellant contends counsel had to
withdraw in order to enable her to testify regarding Holley's
confession. Appellant relies, in part, on Rule 3.7(a) of the
Virginia Rules of Professional Conduct, which states, in part, "A
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lawyer shall not act as an advocate in an adversarial proceeding
in which a lawyer is likely to be a necessary witness . . . ."
The Commonwealth maintains, since counsel could not testify as to
Holley's "bare confession," the trial court did not err.
Because we find the trial court erred in denying a
continuance, we do not address whether the court should have
relieved appellant's counsel and allowed her to testify as to the
third-party confession. However, if the Commonwealth chooses to
retry appellant and the same issue arises, then the trial court
must determine, based on the facts and circumstances presented at
the new trial, whether trial counsel is a potential witness and
whether that potential creates a conflict in her representation.
See Davis v. Commonwealth, 21 Va. App. 587, 593, 466 S.E.2d 741,
743-44 (1996).
For example, if Holley continues to assert her Fifth
Amendment right and if information establishes that her
confession is reliable, then counsel's testimony may be
admissible under the declaration against penal interest exception
to the hearsay rule. See Randolph v. Commonwealth, 24 Va. App.
345, 353-57, 482 S.E.2d 101, 104-06 (1997) (discussing
declarations against penal interest). Alternatively, if Holley
takes the stand and testifies in contradiction of her confession,
appellant's counsel may be called to testify as an impeachment
witness. As we are reversing the convictions on other grounds,
we need not resolve these issues here.
We find the trial court erred in denying appellant's motion
for a continuance. For this reason, we reverse the judgment of
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the trial court and remand for further proceedings consistent
with this opinion, if the Commonwealth be so inclined.
Reversed and remanded.
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