COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Bray
Argued at Salem, Virginia
MICHAEL EDWARD MILLS
OPINION BY
v. Record No. 2886-95-3 CHIEF JUDGE NORMAN K. MOON
FEBRUARY 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
Kevin D. Tiller (V. Blake McKinney, P.C., on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Michael Edward Mills contends the trial court erred in
denying his motion for a continuance and motion to allow him to
discharge his retained counsel, who was not prepared for trial
and had not communicated with him. We agree and reverse.
On December 12, 1994, warrants were issued charging Mills
with robbery and use of a firearm in the commission of robbery.
Counsel was appointed and a preliminary hearing was set for
February 15, 1995. Subsequent to the appointment of counsel,
Mills retained his own counsel and appointed counsel was
discharged.
Following indictment, a jury trial was set for May 30, 1995.
On May 26, 1995, the trial court conducted a hearing to consider
Mills' motion that his retained counsel be removed because Mills
no longer wanted the counsel to represent him and Mills had hired
other counsel. During the hearing, Mills changed his mind and
advised the court that he wanted his originally retained counsel
to represent him in the trial on May 30, 1995. However, Mills
failed to appear for trial on May 30, 1995, and the court issued
a capias for his arrest.
A jury trial was reset for October 17, 1995. On that date,
when the case was called, retained counsel advised the court that
he was ready to proceed, but that Mills had reservations about
proceeding. Mills stated that he had been unable to contact
counsel since the May 26, 1995 hearing, that he had only seen
counsel for about fifteen minutes in the interim, and that his
numerous calls to counsel had not been returned. Further, Mills
stated counsel had failed to subpoena two witnesses. Mills also
stated that he had sent a letter on October 7, 1995 to the trial
court, which the court acknowledged having received, explaining
that he had not been able to contact his counsel, requesting that
an officer of the court do so, and explaining that he had
witnesses he needed to have subpoenaed.
The trial court inquired as to the identity and whereabouts
of the witnesses. Mills indicated that he wished to have Rita
Kay Slagle, Diane Caywood, and Thomas Franklin Salmons, Jr.
testify. Mills explained that Slagle and Caywood had been
present on the evening of the alleged robbery and that Salmons
could explain how Mills had come into the possession of $698
found in his possession on the evening of his arrest. Mills
further explained that when he was arrested, he had reported to
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Officer Bishop at the Washington County jail that Salmons could
explain how he had acquired the $698.
The trial judge then inquired about the relevance of the
witnesses Mills wished to have testify and asked counsel what
efforts had been made to investigate the charges and contact
these witnesses. The following dialogue is reported:
The Court: Are subpoenas issued for them?
Mills' counsel: It is my understanding, no--
(inaudible)
The Court: Are they available?
Mills' counsel: I have no information to the
contrary.
The Court: Have you spoken with either of
them?
Mills' counsel: I have not spoken with either of
them.
The Court: What about Mr. Salmons?
Mills' counsel: I have not spoken with Mr. Salmons.
The Court: What do you know about their
knowledge of the case?
Mills' counsel: Judge, the information received
from Mr. Mills-from my information,
they witnessed the transaction
involving cocaine (inaudible due to
counsel's mumbling). The jury, I
believe, would probably be
reluctant to see the nature of the
content of what transpired that
night.
The Court: You consider either of the three of
them to be material witnesses?
Mills' counsel: I think the two girls would be
material witnesses, yes.
The Court: You have not spoken with them?
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Mills' counsel: If they say what my understanding
is, I would want them as witnesses.
The Court: Well, Counsel has announced ready
for trial. These are charges that
carry life, plus three years.
Counsel [sic] telling me he's ready
without having spoken to these two
material witnesses?
Mills' counsel: It's my understanding with the
Commonwealth Attorney that Mr.
Manuel is not denying the cocaine
transaction or the confrontation or
the condition that night. In view
of that, the Commonwealth Attorney
(inaudible due to counsel's
mumbling). Have I spoken anything
wrong?
* * * * * * *
The Commonwealth: Your Honor, I anticipated
[appellant's] wanting to continue
this to have Mr. Salmons present,
so I went ahead and issued a
subpoena yesterday for Mr. Salmons,
and . . . Mr. Salmons was in rehab
in Salem, I believe . . . .
* * * * * * *
The Court: [Counsel], have you in your
investigation and in preparation
for this trial, ferreted all of
this out and reconciled all of
these conflicting stories?
Mills' counsel: Judge, in my opinion, this is a
trial; one on one. It comes down
to reliability of the prosecuting
witnesses. Mr. Bishop was doing
his job. He's responded to certain
calls. He responded (inaudible).
The trial judge then called Officer Bishop to explain his
knowledge of Mr. Salmon's involvement with the charges against
Mills. Officer Bishop testified that the night of Mills' arrest,
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Mills told Officer Bishop that he had received the $698 from a
Mr. Buchanan, not Mr. Salmons. Officer Bishop stated that he
contacted Mr. Buchanan, who denied having given Mills any money.
Officer Bishop testified that his only contact with Mr. Salmons
had been at the scene of an alleged robbery where Mr. Salmons
stated that he had been robbed by Mills. Officer Bishop reported
that Mr. Salmons was intoxicated at the time and later declined
to press charges or be interviewed about the matter. Upon
questioning by Mills' counsel, Officer Bishop reported that the
incident with Salmons had occurred after the time Mills had been
jailed for the robbery for which he was being tried.
After Officer Bishop's testimony, the court provided Mills
the opportunity to take the stand to refute or explain the
matters testified to by Officer Bishop. Mills declined to do so,
"due to lack of representation of counsel." The trial judge then
decided to proceed to trial.
A defendant's right to retain counsel of his own choosing is
"a qualified right which is limited by a countervailing state
interest in proceeding with prosecutions on an orderly and
expeditious basis." Bolden v. Commonwealth, 11 Va. App. 187,
190, 387 S.E.2d 534, 534 (1990). Further, "broad discretion is
afforded the trial court in determining whether a continuance to
obtain counsel should be granted. Only an unreasoning and
arbitrary insistence upon expeditiousness in the face of a
justifiable request for a delay violates the right to the
assistance of counsel." Id. at 191, 397 S.E.2d at 536.
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In Feigley v. Commonwealth, 16 Va. App. 717, 432 S.E.2d 520
(1993), we considered a defendant's appeal from an order of
conviction for distribution and conspiracy to distribute cocaine.
The defendant contended that the trial court erred in denying
his motion for a continuance on the day of trial so that he might
retain an attorney of his choosing. Concluding that the
defendant had not met his burden, we held that no exceptional
circumstances existed, and that the defendant had not "shown that
the denial of a continuance prejudiced his case. There is no
indication that the court-appointed attorney conducted an
inadequate investigation, was unprepared for trial, or failed to
pursue a vigorous defense." Id. at 721, 432 S.E.2d at 523. In
so deciding we noted that "[defendant's] only complaint is that
he and his attorney were not particularly compatible."
Otherwise expressed, Feigley stands for the proposition that
where a defendant's attorney is unprepared for trial, has not
conducted an adequate investigation and generally has not
responded to or communicated with his client, failure to grant a
continuance for defendant to hire new counsel may be an abuse of
discretion. Here, the trial court's questioning of Mills'
counsel made it clear that counsel did little, if any, pretrial
preparation and that, at best, he neglected his client's
interests in not at least contacting witnesses that he admitted
were material. 1
1
"A lawyer shall attend promptly to matters undertaken for a
client until completed" and "shall keep a client reasonably
informed." DR 6-101, Code of Professional Responsibility.
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The court specifically inquired about counsel's
investigation. Other than counsel's cryptic response that in his
opinion, "this is a trial; one on one. It comes down to
reliability of the prosecuting witnesses," counsel offered no
plausible explanation for his lack of adequate investigation.
Finally, the record also reveals counsel's nearly total
failure to communicate with his client. While we sympathize with
the trial court's concerns that Mills' failure to appear for
trial originally and his repeated complaints about his attorney
are evidence of Mills' efforts to stall the judicial process, it
appears that counsel's failure to communicate was a genuine cause
for Mills' protestations. Counsel did not deny that Mills
repeatedly tried to contact him, and the record proved that Mills
even went so far as to plead for assistance from the court in
locating and compelling counsel to speak with him.
Unfortunately, even the court was unsuccessful in putting Mills
in contact with counsel.
In Ford v. Peyton, the Supreme Court found that the short
time spent by counsel with the defendant, where the indictments
were both serious and complex, warranted a finding that the
defendant was denied effective assistance of counsel. 209 Va.
203, 205, 163 S.E.2d 314, 316 (1968). Here, as the trial court
specifically pointed out to counsel, the charges "carry life,
A lawyer's "obligation to his client requires him to prepare
adequately for and give appropriate attention to his legal work."
EC 6-4.
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plus three years." The record indicates that counsel spoke with
his client for approximately fifteen minutes during the five
months prior to trial.
Finding that as a matter of law Mills' counsel was not
prepared for trial, did not conduct an adequate investigation,
and failed to reasonably communicate with his client, we hold
that under the circumstances of this case that counsel should
have been discharged from any further representation in the case,
that Mills should have been allowed to retain new counsel, and
that the case should have been continued until new counsel was
retained and could adequately prepare for trial.
We note that we are not dealing with a claim of ineffective
assistance of counsel made after trial, a claim which we cannot
consider on direct appeal. Rather, we are merely holding that
the trial court erred in denying Mill's motion for a continuance
when evidence proved counsel had not prepared for trial and had
not adequately communicated with his client before trial.
Accordingly, we reverse and remand for a new trial.
Reversed and remanded.
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