COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
APRIL DAWN WILSON
MEMORANDUM OPINION * BY
v. Record No. 2856-00-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Greg T. Haymore (Turpin & Haymore, P.C., on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The trial court convicted April Dawn Wilson of grand
larceny of a vehicle. She contends the trial court abused its
discretion in granting the Commonwealth a continuance. For the
following reasons, we affirm.
The initial trial date was July 24, 2000. On that date,
the Commonwealth announced that its principal witness was not
present. The witness, who lived in Greensboro, North Carolina,
had been present for the preliminary hearing and had testified
willingly. She knew the trial date and had told the
Commonwealth that she would appear. The Commonwealth mailed a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
subpoena to her address. The Commonwealth did not know why the
witness was not present. At the preliminary hearing, it had no
indication that she would not appear at a future date.
The Commonwealth also planned to call a codefendant as a
witness. The Commonwealth had not summoned the codefendant
because he was scheduled to appear for his own trial earlier on
the day of defendant's trial. He had agreed to plead guilty and
testify against the defendant. The Commonwealth did not know
why the codefendant was not present. He finally appeared for
his own trial an hour late, but after the continuance in this
case.
The Commonwealth moved for a continuance to secure
attendance by the out-of-state witness. The trial court
continued the case to September 18, 2000. It reasoned, "She was
here at the preliminary hearing . . . and indicated she would be
here [for trial] . . . I think that puts it in a different
light. I think they are entitled to rely on [her
representations]. I am going to grant the continuance." The
defendant maintains the trial court erred because the
Commonwealth failed to take sufficient steps to secure
attendance by its witnesses.
"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." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
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S.E.2d 146, 151 (1994) (citations omitted). In considering a
continuance request, "'the court is to consider all the
circumstances of the case.'" Gray v. Commonwealth, 16 Va. App.
513, 517, 431 S.E.2d 86, 89 (1993) (quoting Venable v. Venable,
2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986)). The court's
decision will be reversed only when the record affirmatively
shows an "[a]buse of discretion and prejudice to the complaining
party." Venable, 2 Va. App. at 181, 342 S.E.2d at 648.
"[W]here the witness is beyond the reach of process there must
be a reasonable assurance that he can be produced at the next
term." Moore v. Commonwealth, 186 Va. 453, 461, 42 S.E.2d 871,
874 (1947) (citations omitted).
Both parties are entitled to rely on the subpoena power of
the trial court to secure testimony needed at trial. Code §§
8.01-407 and 19.2-267. A trial court ought to grant a
continuance if a party summoned a material witness who is not
merely cumulative and whose attendance can be secured in the
future. Only if the trial court is convinced that the object of
the motion is to delay trial and not to prepare, is the
continuance not merited. Vineyard v. Commonwealth, 143 Va. 546,
550, 129 S.E. 233, 234 (1925).
In this case, the witness testified willingly at the
preliminary hearing. The Commonwealth's Attorney told her that
her testimony was needed at trial, and she indicated that she
would appear. The Commonwealth mailed the witness a subpoena to
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her address in North Carolina. The Commonwealth believed she
would appear in the future. The Commonwealth acted with due
diligence, and its efforts were reasonable, appropriate, and
timely. When they proved ineffective, the trial court did not
abuse its discretion by continuing the case. Accordingly, we
affirm the conviction.
Affirmed.
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