COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued at Alexandria, Virginia
ALFONZIA ARMSTEAD
MEMORANDUM OPINION * BY
v. Record No. 1788-00-4 JUDGE JEAN HARRISON CLEMENTS
MAY 29, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Michael F. Devine (Devine & Connell, P.L.C.,
on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant Alfonzia Armstead was convicted in a jury trial of
statutory burglary in violation of Code § 18.2-89, two counts of
abduction in violation of Code § 18.2-47, robbery in violation of
Code § 18.2-58, and attempted robbery in violation of Code
§§ 18.2-58 and 18.2-26.1 On appeal, he contends the trial court
erred (1) in denying his attorney's motions for a mistrial and for
leave to withdraw as counsel and (2) in instructing the jury that
it could find him guilty of burglary if he possessed an intent to
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Armstead was found not guilty of rape in violation of Code
§ 18.2-61, use of a firearm in the commission of robbery in
violation of Code § 18.2-53.1, and use of a firearm in the
commission of abduction in violation of Code § 18.2-53.1.
"commit a felony or any larceny." Finding no error, we affirm
appellant's convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
A. MOTIONS FOR A MISTRIAL AND TO WITHDRAW AS COUNSEL
On the afternoon of the first day of trial, the Commonwealth
unexpectedly called Brian Brown as a witness. 2 Brown testified on
direct examination that on the evening before trial he and
Armstead had a conversation in the jail in which Armstead asked
Brown to kill the victim, Mary Mattingly, or at least kidnap or
detain her until the trial was over. Brown also testified about
his extensive criminal record.
Shortly after cross-examination began, Armstead's
court-appointed public defender informed the trial court that
there might be a conflict of interest if Brown was represented by
the Public Defender's Office on his pending embezzlement charge.
Following inquiry by counsel and the trial court, it was
determined, based on Brown's testimony, that no attorney had been
appointed for Brown, and cross-examination continued.
2
Brown, who had been released from jail on bond the night
before, came to court voluntarily and, without prior notice to
the Commonwealth, offered to testify.
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Armstead's attorney thoroughly questioned Brown about his
allegations and his criminal record. Armstead's counsel also
questioned Brown about the lie he told counsel during a brief
out-of-court discussion earlier that day and about Brown having
given police a false name upon one or more of his earlier arrests.
Brown admitted having lied to Armstead's attorney when they met
earlier about how long he had known Armstead and acknowledged that
he had given police a false name one time. At the conclusion of
Brown's testimony, the trial judge inquired, "Is he subject to
recall?" Both parties responded that he was not, and Brown was
released as a witness, without objection.
On the morning of the second day of trial, Armstead's
attorney moved for a mistrial and for leave to withdraw as
counsel, asserting there was a conflict of interest because he had
discovered that another attorney in the Public Defender's Office
was representing Brown on his pending embezzlement charge and that
other attorneys in the Public Defender's Office had represented
Brown on prior charges. Armstead refused to waive the asserted
conflict. The trial court denied the motions nonetheless.
Armstead argues on appeal that the trial court erred in
denying the motions for a mistrial and to withdraw as counsel
because an actual conflict of interest existed in that Brown's
files in the Public Defender's Office were replete with
information that could have been used at trial to effectively
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impeach Brown's credibility. Armstead's trial counsel, however,
was precluded by his ethical obligations, Armstead's argument
continues, from using this information to cross-examine Brown at
trial and from obtaining Brown's reappearance to conduct a more
thorough examination. Therefore, the independent judgment of
Armstead's trial counsel in representing Armstead was, according
to Armstead, adversely affected by the Public Defender's Office's
representation of Brown.
"On appeal the denial of a motion for a mistrial will not be
overruled unless there exists a manifest probability that the
denial of a mistrial was prejudicial." Harward v. Commonwealth, 5
Va. App. 468, 478, 364 S.E.2d 511, 516 (1988). Whether an
indigent defendant's court-appointed attorney should be permitted
to withdraw is a matter that lies within the sound discretion of
the trial court, and its ruling will not be reversed on appeal
unless it is plainly wrong. Payne v. Commonwealth, 233 Va. 460,
473, 357 S.E.2d 500, 508 (1987).
The Sixth Amendment to the United States Constitution
guarantees a defendant in a criminal trial the right to effective
assistance of counsel, which includes the right to representation
that is free from conflicts of interest. See Cuyler v. Sullivan,
446 U.S. 335, 345-50 (1980). "An actual conflict of interest
exists when the attorney's interests and the defendant's interests
'diverge with respect to a material factual or legal issue or to a
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course of action'" or "where counsel has responsibilities to other
clients or personal concerns that are actively in opposition to
the best interests of the defendant." Moore v. Hinkle, 259 Va.
479, 487-89, 527 S.E.2d 419, 423-24 (2000) (quoting Cuyler, 446
U.S. at 356 n.3). "[I]f the defendant shows that his counsel
actively represented actual conflicting interests that adversely
affected his counsel's performance, prejudice is presumed."
Carter v. Commonwealth, 11 Va. App. 569, 573, 400 S.E.2d 540, 543
(1991). "The burden of establishing an alleged conflict of
interest between an attorney and his client is upon the person who
asserts such a conflict." Turner v. Commonwealth, 259 Va. 816,
819, 528 S.E.2d 112, 114 (2000).
In Lux v. Commonwealth, 24 Va. App. 561, 574-75, 484 S.E.2d
145, 151-52 (1997), we declined to adopt a per se rule of
disqualification of an entire Commonwealth's Attorney's Office
when defendant's former attorney was employed by that office.
Rather, the Commonwealth was required to show that defendant's
former attorney had been "effectively screened from contact with
the Commonwealth's attorneys working on the defendant's case."
Similarly, we decline here to adopt a per se rule of
disqualification of an attorney of the Public Defender's Office
solely because other attorneys in the office have represented or
are representing a witness testifying against the defendant.
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Armstead's contention that his attorney had an actual
conflict of interest and that it adversely affected his attorney's
performance is unpersuasive. Armstead's counsel never represented
Brown. No members of the Public Defender's Office represented
Brown on the matters before the trial court in Armstead's case.
Armstead's attorney's cross-examination of Brown was completed and
Brown was released as a witness before Armstead's attorney
discovered the alleged conflict. The cross-examination was
vigorous and thorough, detailing Brown's extensive criminal record
and revealing two instances of admitted lying.
We conclude, therefore, that Armstead failed to show that his
counsel actively represented actual conflicting interests that
adversely affected his counsel's performance. Hence, we hold that
there does not exist a manifest probability that the denial of a
mistrial was prejudicial. We further hold that the trial court
did not abuse its discretion in ruling as it did and its rulings
were not plainly wrong. Accordingly, the trial court did not err
in denying the subject motions for a mistrial and to withdraw as
counsel.
B. JURY INSTRUCTION ON BURGLARY
Armstead also contends the trial court erred because the
finding instruction of burglary did not specifically identify the
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predicate offense of intent. 3 In support of this contention,
Armstead argued at trial that the Commonwealth was required to
3
The trial court gave the jury the following instruction:
INSTRUCTION NO. 3
The Court instructs the jury that the
defendant is charged with the crime of
burglary while armed. The Commonwealth must
prove beyond a reasonable doubt each of the
following elements of that crime:
(1) That the defendant broke and
entered the dwelling house of another; and
(2) That he did so in the nighttime;
and
(3) That he did so with the intent to
commit a felony or any larceny therein; and
(4) That at the time of his entry he
was armed with a deadly weapon.
If you find from the evidence that the
Commonwealth has proved beyond a reasonable
doubt each of the above elements of the
offense, then you shall find the defendant
guilty [of] burglary while armed with a
deadly weapon, but do not fix punishment
until you receive further instructions from
the Court.
If the only element which the
Commonwealth has failed to prove beyond a
reasonable doubt is that the defendant was
armed with a deadly weapon at the time of
his entry, then you shall find the defendant
guilty of burglary, but do not fix
punishment until you receive further
instructions from the Court.
If you find that the Commonwealth has
failed to prove beyond a reasonable doubt
any of the other elements of the offense,
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elect one predicate offense of intent. He concedes now, however,
that the Commonwealth was not required to choose only one offense
among the several felonies with which he was charged as the
predicate offense for intent to commit burglary. Rather, the
instruction given by the trial court, Armstead now argues for the
first time, should have specifically identified each charged
felony that might have constituted the predicate intent offense.
Armstead also argues for the first time on appeal that the trial
court gave no instruction distinguishing a felony from lesser
offenses.
"The Court of Appeals will not consider an argument on appeal
which was not presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);
see also Rule 5A:18. The purpose of this rule is to ensure that
the trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals. See Lee v. Lee, 12 Va.
App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman v.
Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).
Here, Armstead did not raise either of his present arguments
in the trial court. His arguments are therefore procedurally
barred on appeal by Rule 5A:18. Furthermore, our review of the
then you shall find the defendant not
guilty.
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record in this case does not reveal any reason to invoke the "good
cause" or "ends of justice" exceptions to Rule 5A:18.
For these reasons, we affirm appellant's convictions.
Affirmed.
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