COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Humphreys and O’Brien
UNPUBLISHED
Argued at Fredericksburg, Virginia
CECIL GUY TRUMAN
MEMORANDUM OPINION* BY
v. Record No. 1703-16-4 CHIEF JUDGE GLEN A. HUFF
MARCH 27, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Kimberly A. Irving, Judge1
Juli M. Porto (Mark Thomas Crossland; Blankingship & Keith,
P.C.; Mark Thomas Crossland, P.C., on briefs), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Cecil Guy Truman (“appellant”) appeals his convictions of five counts of heroin
distribution, one count of possession with intent to distribute heroin, and one count of possession
with intent to distribute cocaine, in violation of Code § 18.2-248; one count of possession of a
firearm while in possession of a controlled substance, in violation of Code § 18.2-308.4; and two
counts of child neglect, in violation of 18.2-371.1(B). Following a jury trial, the Circuit Court of
Prince William County (“trial court”) sentenced appellant to the jury’s recommended sentence of
forty years and six months of imprisonment. The trial court later granted appellant’s motion to
reconsider the sentence on the heroin-related charges, reducing the term of imprisonment by
suspending nine years of the sentence. On appeal, appellant presents two assignments of error:
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Judge Richard B. Potter presided over the May 1, 2015 hearing and granted the
Commonwealth’s motion to nolle prosequi. Judge Kimberly A. Irving presided over the jury
trial and the hearing on the motion for a new trial.
1. The trial court erroneously found good cause to grant the
Commonwealth’s motion to nolle prosequi Mr. Truman’s
charges where the motion deprived Mr. Truman of his due
process rights.
2. The trial court erroneously denied a new trial where the
Commonwealth did not correct a prosecution witness’s false
testimony.
For the following reasons, this Court affirms appellant’s convictions.
I. BACKGROUND
On appeal, “we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
Appellant was scheduled to stand trial on January 27, 2015, for distribution of a
controlled substance, possession with intent to distribute a controlled substance, conspiracy to
dispense drugs, simultaneous possession of a firearm and a controlled substance, two counts of
child neglect, possession of a firearm by a convicted felon, and possession of a firearm by a
violent convicted felon. Appellant’s counsel, Myron Teluk, moved to withdraw on January 23
because of a conflict of interest. The trial court granted the motion, appointed Scott Swajger as
substitute counsel, and continued the trial to February 13. On that date, Swajger indicated to the
trial court that he was not ready for trial and requested a June trial date. Appellant objected to a
June date, and the trial court continued the case until February 20 for appellant to discuss the
matter with his counsel. Swajger moved to withdraw during this next appearance, so the trial
court appointed Brian Roman as appellant’s counsel and continued the trial to May 4-6. On
April 15, Roman moved to withdraw and the trial court appointed Mark Crossland as appellant’s
counsel.
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At a hearing on May 1, Crossland asked the trial court to continue the case because he
had been appointed only two weeks before the multi-day jury trial date and, in light of ongoing
discovery issues, could not feasibly be prepared in time for the trial despite the approaching
speedy trial deadline pursuant to Code § 19.2-243. The Commonwealth joined the motion in
order to “protect the process” in light of appellant’s conflicting speedy trial and effective
assistance rights. Appellant indicated that he opposed the motion, which the trial court
ultimately denied. After that, the Commonwealth moved to continue the possession of a firearm
by a violent convicted felon charge, which had a longer period before the speedy trial time limit
expired, until June 3. The trial court granted this motion.
The Commonwealth then moved to nolle prosequi the remaining charges. Appellant
opposed this motion, contending that no good cause existed. The Commonwealth cited its
concerns that, were the charges to go forward as scheduled, the issue regarding adequate
representation for appellant would “endanger[] our convictions, if there are any obtained . . . .”
The trial court found that good cause supported the motion and granted it.
A grand jury entered fresh indictments against appellant on June 1, 2015, and he stood
trial on September 21-24, 2015. During its case-in-chief, the Commonwealth called Kimberly
Royston, who had been charged in connection with the investigation of appellant. On
cross-examination, counsel for appellant asked whether her attorney told her that she would
receive a bond if she cooperated with the government, to which she replied, “No.” She indicated
that she did not know why her case had been continued until after appellant’s trial. She also
denied that any Commonwealth representative told her that she would receive a better deal if she
testified during appellant’s trial.
Following his convictions, appellant moved for a new trial based on newly discovered
evidence: a letter from Royston suggesting that the Commonwealth had offered her a plea deal
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in exchange for testifying in appellant’s trial. The trial court conducted a hearing on this motion
on August 4, 2016, at which Royston testified. She stated that she did not believe she perjured
herself at the September 2015 trial. Asked whether any Commonwealth representative made
promises to her about her charges, she replied: “They said they couldn’t make no promises or
guarantees but they said they would see what they could do to lessen my charge.” She went on
to state that she did not mention bond in her letter and “was never aware if they did anything for
[her] bond.” Referring to the standard necessary for granting a new trial based on
after-discovered evidence, the trial court ruled:
[A]t this point, we’re really on one witness and should that have
been a material enough change that couldn’t have been found in
advance of trial that should have or would have produced an
opposite result of this trial. And I simply can’t find that it is. So
I’m denying your motion.
This appeal followed.
II. ANALYSIS
Appellant contends that the trial court erred by finding that good cause existed to grant
the Commonwealth’s motion to nolle prosequi and by denying appellant’s motion for a new trial
when the Commonwealth did not correct its witness’ false testimony.
A. Motion for Nolle Prosequi
Appellant’s first assignment of error challenges the trial court’s finding of good cause to
grant the Commonwealth’s motion to nolle prosequi an initial slate of charges against him.
Crucially, appellant did not challenge the Commonwealth’s decision to reindict him after the
nolle prosequi. Because this Court lacks subject matter jurisdiction over the challenged good
cause finding, we dismiss appellant’s first assignment of error.
“A nolle prosequi ‘discharges the accused from liability on the indictment to which the
nolle prosequi is entered.’” Duggins v. Commonwealth, 59 Va. App. 785, 791, 722 S.E.2d 663,
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666 (2012) (quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977)).
“When the charges against an accused are dismissed or nolle prosequied the accused is no longer
a person ‘whose freedom of movement and liberty’ are ‘subject to any legal restriction’ because
those charges no longer exist.” Wright v. Commonwealth, 52 Va. App. 690, 701, 667 S.E.2d
787, 792 (2008) (en banc) (quoting Moore v. Commonwealth, 218 Va. 388, 394, 237 S.E.2d 187,
192 (1977)). “After a nolle prosequi of an indictment, the slate is wiped clean, and the situation
is the same as if ‘the Commonwealth had chosen to make no charge.’” Watkins v.
Commonwealth, 27 Va. App. 473, 475, 499 S.E.2d 589, 590 (1998) (en banc) (quoting Burfoot
v. Commonwealth, 23 Va. App. 38, 44, 473 S.E.2d 724, 727 (1996)). If, after a nolle prosequi of
original charges, the Commonwealth later indicts the accused with new charges arising from the
original conduct, it is “an entirely different proceeding” from that in which the nolle prosequi
occurred. Duggins, 59 Va. App. at 793, 722 S.E.2d at 667.
This Court’s jurisdiction is governed entirely by statute and, in criminal cases, is limited
to final orders of conviction and certain pretrial orders not at issue here. See Code
§§ 17.1-406(A); 19.2-398. In Duggins, this Court recognized that it generally lacks statutory
authority to consider direct appeals of a trial court’s decision to grant a motion to nolle prosequi
charges. Duggins, 59 Va. App. at 789, 722 S.E.2d at 665 (recognizing that this Court declined to
hear the direct appeal of an order granting the motion to nolle prosequi “because Code
§ 17.1-406(A) permits appellate jurisdiction over ‘any final conviction’ in a circuit court but not
over a final order terminating a prosecution and releasing the defendant”). A nolle prosequi ends
a criminal case without a conviction. This Court therefore lacks jurisdiction to review an order
to nolle prosequi except in rare circumstances not presented in this case. See, e.g., Moore v.
Commonwealth, 59 Va. App. 795, 810, 722 S.E.2d 688, 675-76 (2012) (“Since a nolle prosequi
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terminates a criminal case without a conviction, it is not directly reviewable by this Court unless,
as here, a conviction results on other companion charges.”).
In this case, appellant did not challenge the Commonwealth’s reinstitution of charges
against him based on its lack of good cause to support the nolle prosequi of the initial charges.
See Harris v. Commonwealth, 258 Va. 576, 580, 520 S.E.2d 825, 827 (1999) (reviewing trial
court’s denial of a motion to dismiss a reindictment based on the Commonwealth’s lack of good
cause to nolle prosequi the original indictment, “effectively continu[ing] the first prosecution in
the form of the second”). Instead, appellant challenged the trial court’s good cause finding with
respect to the initial indictments, which became a legal nullity once the trial court entered the
nolle prosequi. He therefore does not appeal a decision of the trial court leading to his current
convictions. Accordingly, this Court dismisses appellant’s first assignment of error for lack of
subject matter jurisdiction.
B. Motion for New Trial
Appellant next contends that the trial court erred in denying his motion for a new trial and
deprived him of his due process rights because the Commonwealth failed to correct one of its
witnesses’ allegedly false testimony. Because this argument is procedurally defaulted and the
ends of justice exception does not apply, this Court affirms the trial court’s ruling.
[M]otions for new trials based on after-discovered evidence are
addressed to the sound discretion of the trial judge, are not looked
upon with favor, are considered with special care and caution, and
are awarded with great reluctance. A party who seeks a new trial
based upon after-discovered evidence bears the burden to establish
that the evidence (1) appears to have been discovered subsequent
to the trial; (2) could not have been secured for use at the trial in
the exercise of reasonable diligence by the movant; (3) is not
merely cumulative, corroborative or collateral; and (4) is material,
and such as should produce opposite results on the merits at
another trial.
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Garnett v. Commonwealth, 275 Va. 397, 416-17, 657 S.E.2d 100, 112 (2008) (quoting
Commonwealth v. Tweed, 264 Va. 524, 528, 570 S.E.2d 797, 800 (2002)). “In reviewing an
exercise of discretion . . . we consider only whether the record fairly supports the trial court’s
action.” Harris, 258 Va. at 583, 520 S.E.2d 829 (quoting Beck v. Commonwealth, 253 Va. 373,
385, 484 S.E.2d 898, 906 (1997)).
In his motion for a new trial, appellant contended that newly discovered evidence—the
letter from Royston—would “reveal that the testimony of certain Commonwealth’s witnesses
was coerced, false and . . . if given in a new proceeding, would be substantially different than
when it was offered at the previous trial which would affect the likelihood of the Commonwealth
proving its case against [appellant] on the merits . . . .” At the subsequent hearing, appellant
continued to argue in this vein. At no point, however, did appellant contend that the trial court
should order a new trial because of the Commonwealth’s failure to correct the witness’ allegedly
false testimony.
As discussed above, Rule 5A:18 provides in part that “[n]o ruling of the trial court . . .
will be considered as a basis for reversal unless an objection was stated with reasonable certainty
at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain
the ends of justice.” “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). Thus, even though appellant made similar arguments asking the trial court to
order a new trial, he failed to advance below the specific argument he asserts on appeal. See
Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992) (“The purpose
of the contemporaneous objection rule embodied in Rule 5A:18 is to inform the trial judge of the
action complained of in order to give the judge the opportunity to consider the issue and to take
timely corrective action . . . .”); see also Edwards v. Commonwealth, 41 Va. App. 752, 760, 589
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S.E.2d 444, 448 (2003) (en banc) (“Making one specific argument on an issue does not preserve
a separate legal point on the same issue for review.”). Appellant’s argument is therefore
procedurally defaulted.
Appellant nevertheless asks this Court to review his argument on appeal pursuant to the
ends of justice exception to Rule 5A:18. “The ends of justice exception is narrow and is to be
used sparingly.” Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989). Even
error of a constitutional dimension does not automatically merit review—instead, such error “is a
relevant, though not necessarily dispositive, consideration when determining whether to apply
the ends of justice exception.” Commonwealth v. Bass, 292 Va. 19, 28 n.5, 786 S.E.2d 165, 170
n.5 (2016). “In order to avail oneself of the exception, a defendant must affirmatively show that
a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (quoting Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). “In order to show that a
miscarriage of justice has occurred, thereby invoking the ends of justice exception, the appellant
must demonstrate that he or she was convicted for conduct that was not a criminal offense or the
record must affirmatively prove that an element of the offense did not occur.” Id. at 221-22, 487
S.E.2d at 272-73.
“The burden of establishing a manifest injustice is a heavy one, and it rests with the
appellant.” Brittle v. Commonwealth, 54 Va. App. 505, 514, 680 S.E.2d 335, 340 (2009). In
describing how heavy the burden of proving manifest injustice is, this Court has said:
This burden is nothing more than a common sense obligation on
the part of the appellant to point us to a particular place in the
record that establishes his innocence; that is, that he was convicted
of a non-offense or that the record affirmatively establishes that an
element of the offense did not occur. Unless the appellant can
point to such a place in the record, we are left with no alternative
other than to say that there was no miscarriage of justice.
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Id. at 517-18, 680 S.E.2d at 341-42. In this case, appellant is unable to establish either that he
was convicted for noncriminal conduct or that an element of an offense did not occur.2
Even assuming arguendo that the testimony in question was false, appellant nonetheless
cannot prove a manifest injustice because the jury had ample other evidence with which to
convict appellant. Other witnesses testified that they purchased drugs from appellant, a firearm
and ammunition were found in his home, and appellant’s own testimony supported the child
neglect charges. In light of the other evidence of his guilt, this Court cannot find that a
miscarriage of justice occurred. Accordingly, this Court holds that the ends of justice exception
does not apply and finds appellant’s argument that he was entitled to a new trial to be
procedurally defaulted.
III. CONCLUSION
Appellant’s first assignment of error challenges a decision of the trial court in
proceedings distinct from those currently before this Court. As such, it is beyond the scope of
this Court’s subject matter jurisdiction and is dismissed. Appellant asks this Court to review his
second assignment of error pursuant to the ends of justice exception to Rule 5A:18, but is unable
to meet the high bar of establishing that he suffered a manifest injustice. Accordingly, this Court
2
Appellant contends on brief that, rather than the manifest injustice standard, this Court
should apply the “clear, substantial, and material” standard articulated by Judge Barrow’s
concurrence in Campbell v. Commonwealth, 14 Va. App. 988, 996-98, 421 S.E.2d 652, 656-58
(1992) (en banc). The standard suggested by the concurrence would find that the ends of justice
overcame a waiver if the error was clear—“apparent under existing statutory or case law without
the necessity of further judicial interpretation and must not have been acquiesced in, either
expressly or impliedly, by the complaining party”; substantial—“affect an essential element of
the trial”; and material—“important enough to affect the outcome of the trial.” Id. at 997-98,
421 S.E.2d at 657-58. Because this Court has never adopted this standard for determining
whether the ends of justice exception applies, and is bound by the doctrine of interpanel accord,
it declines to do so here.
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finds that appellant’s second assignment of error is procedurally defaulted and affirms his
convictions.
Dismissed in part, affirmed in part.
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Cecil Guy Truman v. Commonwealth of Virginia
Combined Opinion