Bram Patrick Daggs v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 10, 1999
• Docket: 2124981
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Baker Argued at Norfolk, Virginia

BRAM PATRICK DAGGS MEMORANDUM OPINION * BY v. Record No. 2124-98-1 JUDGE JOSEPH E. BAKER AUGUST 10, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY N. Prentis Smiley, Jr., Judge

Charles E. Haden for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Bram Patrick Daggs (appellant) appeals from his bench trial

convictions by the Circuit Court of York County (trial court) of

two counts of robbery. Appellant first contends that the trial

court committed reversible error when it denied appellant's motion

for a continuance to enable him to employ new counsel to replace

his court-appointed attorney. Appellant also contends that the

evidence was insufficient to support the robbery convictions.

Finding no error, we affirm the judgment of the trial court.

I.

On March 18, 1998, appellant executed an affidavit asserting

that he was indigent. His request for appointed counsel for the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. preliminary hearing was granted prior to that hearing held on May

12, 1998. On May 19, 1998, true bills were returned by a grand

jury, charging that appellant robbed Daniel Ablits and Thomas Law.

On May 19, 1998, the trial court appointed M. Tracy McMurtrie 1 to

represent appellant on the charges before the trial court. The

trial then was scheduled for July 16, 1998. Until that date,

appellant did not move for change of counsel.

As appellant was about to be arraigned, his court-appointed

counsel requested the court for permission to "withdraw as

counsel" for the reason that she "understood" appellant's family

had on the day before sought to retain "Attorney Ashton Wray" to

represent appellant. She further stated that appellant joined in

that request.

The trial court refused to permit counsel to withdraw, noting

that appellant had sworn he was indigent, that counsel had twice

been appointed to represent appellant, and that several months had

passed between the date of the affidavit and the date of the

motion to withdraw without any action by appellant or anyone on

his behalf to obtain other counsel. Appellant was then arraigned

and pled not guilty.

Prior to accepting the pleas, the trial court extensively

questioned appellant pursuant to Rule 3A:8. Appellant stated that

he understood the charges and that he had discussed them with his

1 McMurtrie had served as appointed counsel for appellant at the general district court preliminary hearing.

- 2 - attorney. Appellant asserted, however, that he had not had enough

time to discuss the charges with his court-appointed lawyer.

Counsel for appellant subpoenaed the only witness that appellant

asked to be subpoenaed, and she represented to the court that she

was able to communicate sufficiently with appellant to prepare for

trial.

Appellant claimed that his attorney always seemed "in a rush"

when she saw him and that he did not have time to tell her his

"version of the story." When the court asked how much time he

needed to talk with his attorney, appellant said "about thirty

minutes." Appellant and his attorney then privately conferred,

after which appellant told the trial court that he was satisfied,

that counsel and he had discussed his case, that he understood all

the questions the court had asked him, and that he was ready for

"trial today."

Generally, a motion for withdrawal of counsel is addressed to

the sound discretion of the trial court, and our review is limited

to determining whether the trial court's denial of the motion

constituted an abuse of discretion. See Payne v. Commonwealth,

233 Va. 460, 473, 357 S.E.2d 500, 508 (1987); Paris v.

Commonwealth, 9 Va. App. 454, 459, 389 S.E.2d 718, 722 (1980).

"In order to justify a continuance 'by the last minute change of

counsel, exceptional circumstances must exist.'" Feigley v.

Commonwealth, 16 Va. App. 717, 721, 432 S.E.2d 520, 523 (1993)

- 3 - (quoting Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d

316, 320 (1977)).

Counsel for appellant represented to the trial court that she

communicated enough with appellant to prepare for trial. After

being given an additional opportunity by the court to confer with

his counsel, appellant indicated that he was satisfied and

prepared to go forward with the trial. Accordingly, we find that

the trial court did not abuse its discretion when it denied

appellant's motion for a continuance to retain a new attorney.

II.

Upon familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom. See Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).

Stated thusly, the record discloses that Stephanie Henderson

was with Michael Blunt, "Lamar" and "T.J." when they saw Ablits

and Law walking nearby. T.J. stated "[w]e should get them,"

referring to Ablits and Law. When appellant re-joined the group,

Blunt, Lamar, and T.J. discussed their plan with appellant.

Shortly thereafter, Henderson saw appellant grab Ablits from

behind while T.J. took Ablits' wallet and keys. Following that

action, Henderson saw Blunt and appellant run up to Law and knock

him to the ground. Appellant and Blunt then kicked and hit Law,

and appellant took Law's class ring.

- 4 - Ablits and Law were unable to identify any of their

assailants. Each testified, however, that a person generally

matching Henderson's description was present at the scene of the

robberies.

Blunt denied that he or appellant participated in the

robberies. Appellant denied being present at the time the

robberies were alleged to have occurred and stated he was, in

fact, elsewhere with a girl named Jennifer.

The evidence, when viewed in the light most favorable to the

Commonwealth, sufficiently proved that appellant was an active

participant in the Ablits and Law robberies. The trial court

believed the Commonwealth's evidence and rejected appellant's

evidence. "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995). The Commonwealth's evidence was

competent, was not inherently incredible, and was sufficient to

prove beyond a reasonable doubt that appellant was guilty of the

two robberies.

For the reasons stated, the judgment order of the trial court

is affirmed.

Affirmed.

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