COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
DAVID LEE JACKSON
v. Record No. 0412-94-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA NOVEMBER 21, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Cullen B. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
David Lee Jackson appeals his jury trial convictions of
first degree murder, use of a firearm in the commission of a
murder, and armed burglary. Jackson argues that the trial judge
abused his discretion in denying his motion for a continuance and
further erred in refusing to instruct the jury on the lesser
included offenses of armed burglary. We affirm Jackson's
convictions because the record does not show that the trial court
abused its discretion by denying the continuance, and because
Jackson's proffered jury instructions were unsupported by the
evidence.
"`The decision whether to grant a continuance is a matter
within the sound discretion of the trial court. Abuse of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
discretion and prejudice to the complaining party are essential
to a reversal.'" Lowery v. Commonwealth, 9 Va. App. 304, 307,
387 S.E.2d 508, 509 (1990). "Only an unreasoning and arbitrary
'insistence upon expeditiousness in the face of a justifiable
request for delay' violates the right to the assistance of
counsel." Bolden v. Commonwealth, 11 Va. App. 187, 191, 397
S.E.2d 534, 536 (1990) (citing Morris v. Slappy, 461 U.S. 1,
11-12 (1983)) (other citation omitted). "In determining whether
the trial court properly exercised its discretionary powers, we
look to the diligence exercised by the moving party to gather and
make the evidence available at trial." Smith v. Commonwealth, 16
Va. App. 630, 636, 432 S.E.2d 2, 6 (1993).
Jackson first contends he was entitled to a continuance
because there were only ten days between the time of the
indictment and trial. However, the record does not support a
finding that Jackson's counsel did not have time to prepare for
trial. Although there were only ten days between the time of the
indictment and trial, defense counsel had represented Jackson for
eight weeks, from the time of his arrest throughout the entire
proceedings.
Secondly, Jackson complains that he was prejudiced because
the final autopsy report was not filed until 4:00 p.m. on the day
before trial. Counsel had access prior to trial to the medical
examiner who prepared the final autopsy report, as well as her
preliminary findings. Counsel was unable to articulate to the
trial judge how any information contained in the final autopsy
- 2 -
report was of value to appellant, or how he would be prejudiced
by a denial of his request for a continuance. While the final
report confirmed that the remaining two shots, as well as the
first (confirmed in the preliminary report), had entered through
the back, defense counsel never proffered that she had mistakenly
developed a theory of self-defense. In fact, defense counsel
admitted she had not yet developed any defense theory. When
counsel could give no reason the late autopsy report prejudiced
the defense, the trial judge advised counsel to consider the
matter overnight and to bring it up before trial if she could
think of any reason.
Jackson next contends that a potentially exculpatory witness
was discovered two days before trial, and that he should have had
time to find and interview this witness. Under the circumstances
of this case, Jackson was not entitled to a continuance to
interview an allegedly exculpatory witness. In such cases, this
Court "look[s] to the diligence exercised by the moving party to
locate the witness . . . . " Smith, 16 Va. App. at 636, 432
S.E.2d at 6.
While Jackson's counsel claimed that the witness was
discovered two days before trial, she could have discovered her
much earlier. At trial she stated: "the Commonwealth did let me
see the file prior to the preliminary hearing. I saw it. I did
not -- I read it. I did not take any notes." Jackson does not
allege any violations of discovery rules by the Commonwealth or
surprise. See Stewart v. Commonwealth, 10 Va. App. 563, 569, 394
- 3 -
S.E.2d 509, 513 (1990). That the witness saw three or four
people running from the scene of the shooting did not tend to
exculpate appellant; Jackson was the only one seen with a gun on
the night in question and it is not uncommon for people to run
from an area after hearing gunshots.
Lastly, Jackson's defense counsel never said that they found
the witness, nor that the witness had anything helpful to say,
even though they had three weeks after the trial to bring new
information forward under Rule 1:1.
Finally Jackson claims he was entitled to a continuance
because a difference arose between himself and defense counsel,
over whether he should testify, two nights before his trial.
This contention is without merit. "In order to work a delay 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). Although Jackson's counsel stated to the court
that a difference arose between herself and Jackson, over whether
he should testify, two nights before his trial, she failed to
demonstrate any exceptional circumstances. In fact, while
Jackson's counsel only vaguely alluded to the conflict, her
conversation with the court appears to present a typical dilemma
which faces counsel when a defendant insists on testifying, i.e.,
perjured testimony. It's quite likely that Jackson's counsel was
worried that if Jackson testified he would lie on the stand,
forcing her to reveal his crime and having to withdraw as
counsel. At any rate, the differences were resolved when counsel
- 4 -
told the court that she had convinced Jackson not to testify.
"A reviewing court's responsibility in reviewing jury
instructions is to 'see that the law has been clearly stated and
that the instructions cover all issues fairly raised.'" Darnell
v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)
(citation omitted). "If there is any evidence that would support
a conviction for the lesser included offense, the trial court
must, upon request of counsel, instruct the jury as to the lesser
included offense. . . . An instruction, however, must be based on
more than a scintilla of evidence." Miller v. Commonwealth, 5 Va
App. 22, 24, 359 S.E.2d 841, 842 (1987) (citations omitted).
In this case the record bears no more than a scintilla, if
that, of evidence to support Jackson's proffered instructions on
lesser included offenses of burglary. The deceased's wife
testified that she cracked open the door when someone knocked on
it, and Jackson and another man "pushed the door open, brushed
past [her] and walked through the house with guns." Upon forcing
their way into the dwelling, the two proceeded directly toward
the deceased and began to maliciously beat him before taking the
deceased outside where Jackson shot him. This uncontradicted
testimony, which was supported by the physical evidence, does not
support the defense theory that Jackson was guilty of breaking
and entering with intent to commit a misdemeanor or unlawful
entry.
For all of the above-stated reasons, Jackson's convictions
are affirmed.
- 5 -
Affirmed.
- 6 -
Benton, J., dissenting.
In the motion for continuance, David Lee Jackson's counsel
stated that she needed additional time to prepare for the trial,
which was scheduled to occur ten days after the indictment. In
the motion, counsel alleged that only nine days earlier the
Commonwealth indicted Jackson on a "new charge of armed breaking
and entering," that on the day before trial counsel had not
received the "final autopsy and toxicology report," and that
counsel had "just learned of a potentially exculpating witness."
Although counsel's motion for a continuance of a trial was
addressed to the trial judge's exercise of sound discretion, the
principle is well established that the trial judge must exercise
that discretion "with due regard to the provisions of the Bill of
Rights, which secure to one accused of crime a fair and impartial
trial; and to that end safe-guard his right 'to call for evidence
in his favor.'" Cremeans' Case, 104 Va. 860, 863, 52 S.E. 362,
363 (1905) (quoting Const. of Va., Art. I § 8).
This unqualified right includes "the right to
prepare for trial which, in turn, includes
the right to interview material witnesses and
to ascertain the truth." This right applies
with equal force to the procurement of
documentary evidence.
Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984)
(quoting Bobo v. Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213,
215 (1948)).
The record establishes that Jackson was initially charged
with a murder that occurred on the street in front of an
- 7 -
apartment. Jackson did not remove the victim from the apartment.
The Commonwealth's witness, the victim's wife, testified that
she and the victim left witness' apartment together. They were
walking to a public telephone when the victim saw Jackson and
another man, both armed. The witness ran back into her
apartment, closed the door, and heard four shots. No witness
testified who saw the killing.
Ten days prior to the trial, the Commonwealth indicted
Jackson for that murder. In addition, however, at that same time
the Commonwealth charged Jackson for the first time with breaking
and entering the witness' apartment while armed and with the
intent to commit a felony. Jackson had only ten days to prepare
for his defense to this additional indictment. In denying the
continuance, the trial judge failed to consider that "[i]n order
to prepare for trial, an accused and his counsel must have
sufficient time to investigate the case and to evaluate the
evidence that is procured." Gilchrist v. Commonwealth, 227 Va.
540, 545, 317 S.E.2d 784, 787 (1984). The denial of counsel's
motion for a reasonable continuance to prepare Jackson's defense
to that felony was an abuse of discretion.
Furthermore, on the day before trial at the continuance
hearing, the prosecutor agreed that the medical examiner had not
prepared her report because "she is not clear as to the other two
wounds because . . . its difficult to tell whether [the bullets]
. . . went in the back or came out the front or vice-versa." The
autopsy report was not filed in the trial court until after 4
- 8 -
p.m. on the day prior to trial. The toxicology report was given
to counsel at trial. Both reports were both admitted in evidence
at trial against Jackson. In the absence of these exhibits,
Jackson's counsel could not have adequately prepared to defend
Jackson. Counsel was entitled to have adequate time to evaluate
the reports and to prepare a defense. Id.
The Commonwealth's evidence proved that before the victim
was shot he saw Jackson and another man, both of whom had guns.
Although the Commonwealth's witness testified that only Jackson
had approached her husband before she ran back to her apartment,
she was in her apartment behind a closed door when the victim was
shot. Jackson's counsel had learned a day before trial that a
person who was not on the Commonwealth's witness list had seen
1
several persons leaving the vicinity of the shooting. Counsel
1
On the day prior to trial, when Jackson's counsel argued in
support of the motion for a continuance, she made the following
representation to the judge:
There are a number of potentially exculpatory
matters that are contained within his file
that we saw yesterday. There is a witness
that saw the, heard the shots fired and saw a
different number of people running away from
the area than the woman who testified at the
preliminary hearing whose husband was killed.
I mean, there is a difference from a witness
out there that we just found out about that
is potentially exculpatory for Mr. Jackson.
And that we need time to continue to do. I
will state for the Court that the
Commonwealth did let me see the file prior to
the preliminary hearing. I saw it. I did
not -- I read it. I did not take any notes.
I was not allowed to take notes. It was
simply an informal reading of the report that
the victim's wife gave to the police at that
point. And the Commonwealth had been willing
- 9 -
had an investigator searching for that person to interview as a
potential exculpatory defense witness. Because the
Commonwealth's own evidence placed another person in the victim's
presence with a gun prior to the shooting, the failure to give
Jackson's counsel additional time to locate and interview the
missing observer was plain error.
For these reasons, I would hold that the trial judge abused
his discretion in refusing to grant a reasonable continuance.
Thus, I would reverse the convictions and remand for a new trial.
to give me the file. The problem is that
when we take notes yesterday and find this
witness that's differs from the
Commonwealth's witness, I feel that we have
an obligation at that point to try to track
down this potentially exculpatory witness.
- 10 -