April Dawn Wilson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 20, 2001
• Docket: 2856003
• Status: Unpublished

Opinion

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

- 2 - 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

- 3 - 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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