COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
Argued at Salem, Virginia
MARVIN LEE SILCOX, A/K/A
JAKE STOUT
OPINION BY
v. Record No. 2988-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
James Michael Shull (S. Strother Smith, III,
on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Marvin Lee Silcox (appellant) was convicted in a jury trial
of abduction, in violation of Code § 18.2-47, and misdemeanor
assault and battery, in violation of Code § 18.2-57. 1 The sole
issue is whether the trial court erred in refusing to continue
the case because appellant's out-of-state counsel was
unavailable on the trial date. Finding no abuse of discretion,
we affirm.
I.
The record establishes that trial was initially set for
August 13, 1997. On July 22, 1997, appellant requested a
1
Appellant was acquitted of the use of a firearm during the
commission of a felony, the unlawful possession of a firearm, and
brandishing a firearm.
continuance because "co-counsel for the Defendant . . . [was]
ill and has closed her practice and Counsel [James] Shull
informed the Court that he desired to secure new local
co-counsel . . . ." The trial court granted appellant's motion,
and trial was continued to October 21, 1997. On October 21,
1997, appellant again moved for a continuance because the
Federal Bureau of Investigation was conducting an investigation
into matters related to this case. At that time, the trial
court granted a continuance "generally from October 21, 1997
until the further order of the Court" because the "ongoing
investigation . . . may or may not have . . . some benefit to
the defendant." Trial was subsequently set for May 27, 1998.
On May 14, 1998, counsel for appellant, James Michael Shull
(Shull), filed a motion to withdraw as counsel on the ground
that appellant had relieved him as counsel. Shull attached a
letter from a California attorney, Milton C. Grimes (Grimes),
indicating that appellant had retained Grimes to represent him
and instructed Shull to "immediately cease and desist further
efforts on his behalf." Shull also attached to his motion to
withdraw a letter dated May 8, 1998, in which Grimes indicated
he was going to meet with appellant on May 9, 1998 to determine
whether Shull, Grimes, or both attorneys would represent
appellant at trial. The record reflects that Grimes himself
never filed a praecipe noting his appearance. The trial court
denied the motion to withdraw, stating the following:
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The Court is of the opinion that the
attachments to the Motion constitute notice
of appearance by Milton C. Grimes, Esquire,
as Counsel of record for the defendant in
these cases, with James Michael Shull,
assisting as Virginia Counsel pursuant to
Rule 1A:4.
After mature consideration of this
matter, the Court doth deny the Motion to
Withdraw and these matters remain set for
trial by a jury on May 27, 1998 at 9:00 a.m.
All counsel are expected to be present on
that date at that time ready for trial.
(Emphasis added).
On May 26, 1998, the afternoon before the trial, S.
Strother Smith, III (Smith), another Virginia attorney, filed a
motion requesting the trial court to recognize his entry into
the case as local counsel, with Grimes acting as lead counsel.
Smith also moved to dismiss the charges on speedy trial grounds
or, in the alternative, to grant a continuance because Grimes,
appellant's lead counsel, was unavailable for trial the
following day. 2 Smith stated that Grimes was "tied up" with
pretrial motions in a federal case in California and "cannot be
available" for appellant's case. The trial judge denied the
motion for a continuance, stating the following:
2
Smith also requested a continuance on the ground that, as
new local counsel, he "has had no time to even familiarize himself
with the case." However, the trial court denied this ground for a
continuance, stating: "[W]hen counsel comes into a case in the
middle of the case, in particular when the case is scheduled for
trial the next day, . . . it is assumed that counsel is ready or
could be ready for trial the next day." Appellant did not
challenge this finding and, therefore, we do not address it on
appeal.
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Insofar as the motion to continue [the case]
on account of Counsel Grimes in California
not being present, . . . [h]e knew the story
when he got in the case from a month or two
ago . . . . And, he knew the case was
scheduled for trial, and he knew - at that
time he knew he would be in a trial and he
needed to arrange his schedule to be in a
trial. And, the fact that he isn't here is
of no moment to the Court, because the Court
sees two mighty experienced counsel sitting
at counsel table for the defendant. Mr.
Shull is lead counsel and has been since the
case commenced.
(Emphasis added). The trial court further explained:
[T]he Court is of the opinion when a
defendant undertakes to employ foreign
counsel from 2,000 miles away on the eve of
the trial, that's a maneuver in an attempt
to get a postponement to me. . . . The Court
won't be maneuvered in that manner. With
all due respect to Mr. Grimes, if he's going
to accept employment in cases . . . in the
Commonwealth of Virginia, . . . [h]e knew or
should have known what his schedule was and
he couldn't be two to 3,000 miles away and
fly out here for these felony charges on
this date.
Following a trial by jury, appellant was convicted of abduction,
in violation of Code § 18.2-47, and misdemeanor assault and
battery, in violation of Code § 18.2-57.
II.
The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. See Lebedun v.
Commonwealth, 27 Va. App. 697, 712, 501 S.E.2d 427, 434 (1998);
Price v. Commonwealth, 24 Va. App. 785, 788, 485 S.E.2d 655, 657
(1997). The Virginia Supreme Court has established a
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two-pronged test for determining whether a trial court's denial
of a continuance request is reversible error. Under this test,
we may reverse a trial court's denial of a motion for a
continuance only if it appears from the record: (1) that the
court abused its discretion and (2) that the movant was
prejudiced by the court's decision. See Cardwell v.
Commonwealth, 248 Va. 501, 509, 450 S.E.2d 146, 151 (1994). In
order to justify a continuance "by the last minute change of
counsel, exceptional circumstances must exist." Shifflett v.
Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 320 (1977).
In the instant case, the evidence does not support
appellant's allegation that the trial court abused its
discretion. Additionally, the evidence does not show, and
appellant does not allege, that he was prejudiced by the court's
denial of his motion. 3 See Cardwell, 248 Va. at 509, 450 S.E.2d
at 151. Although counsel argued that Grimes was the "lead
attorney," the trial court noted that Shull had been involved in
the case and had been lead counsel for appellant "since the case
3
In this context, appellant's reliance upon Smith v.
Commonwealth, 155 Va. 1111, 156 S.E. 577 (1931), is misplaced. In
Smith, the Supreme Court held that the trial court erred by
refusing to grant a continuance where the defendant's attorney
could not attend due to a family emergency. Noting that "[t]his
is not a case in which a man had employed two lawyers," the
Supreme Court concluded that allowing substitute counsel "two or
three days in which to familiarize himself with the situation and
to prepare and present his evidence was not unreasonable." Id. at
1116-18, 156 S.E. at 579.
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commenced." The matter had been continued previously at
appellant's request for several months.
Additionally, the record does not reflect any "exceptional
circumstances" warranting a continuance, see Shifflett, 218 Va.
at 30, 235 S.E.2d at 320, but instead demonstrates that
appellant was represented by two "experienced" attorneys. The
trial court considered appellant's motion as "an attempt to get
a postponement" and stated that it would not "be maneuvered in
that manner." See, e.g., Bennett v. Commonwealth, 236 Va. 448,
460-61, 374 S.E.2d 303, 311 (1988) ("Ambush, trickery, stealth,
gamesmanship, one-upmanship, surprise have no legitimate role to
play in a properly conducted trial."). We conclude the trial
court did not abuse its discretion by refusing to grant the
motion for a continuance to allow a third attorney to be
present. 4 Accordingly, appellant's convictions are affirmed.
Affirmed.
4
Appellant's argument that he was denied his Sixth Amendment
right to counsel is procedurally barred. Appellant did not raise
this issue at trial, it was not granted as an issue on appeal, and
we do not consider it for the first time here. See Rule 5A:18;
see also Deal v. Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d
897, 900 (1992) ("This procedural bar applies even to defendant's
constitutional claims."); Cottrell v. Commonwealth, 12 Va. App.
570, 574, 405 S.E.2d 438, 441 (1991) (same).
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