Carson Carnell Davis, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 14, 2023
• Docket: 1140221
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges AtLee, Causey and Callins UNPUBLISHED

CARSON CARNELL DAVIS, JR. MEMORANDUM OPINION* v. Record No. 1140-22-1 PER CURIAM NOVEMBER 14, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C. Lewis, Judge

(Roger A. Whitus; Slipow & Robusto, P.C., on brief), for appellant.

(Jason S. Miyares, Attorney General; Timothy J. Huffstutter, Assistant Attorney General, on brief), for appellee.

After examining the briefs and record in this case, the panel unanimously holds that oral

argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a);

Rule 5A:27(a). Carson Carnell Davis, Jr. failed to timely file the transcripts or a written

statement of facts in lieu of the transcripts necessary to the appeal pursuant to Rule 5A:8. As a

result, we cannot reach his assignments of error and we affirm the convictions.

Davis was convicted, following a jury trial, of second-degree murder, two counts of using

a firearm in the commission of a felony, and aggravated malicious wounding. By final order

entered July 18, 2022, the trial court sentenced Davis to 88 years of incarceration, with all but 25

years suspended.

On appeal, Davis contends that the evidence is insufficient to prove he acted with malice.

Davis further contends that the trial court erred when it excluded the content of the decedent’s

threats, which were communicated to him before the incident. He argues that the content of the

* This opinion is not designated for publication. See Code § 17.1-413(A). decedent’s threats was not hearsay and the threats were offered to show the effect they had on

him. This effect, he asserts, supported his heat of passion and self-defense theories and the

exclusion of the threats’ content was not harmless error.

The record on appeal does not contain timely-filed transcripts of Davis’s jury trial held on

March 14, 15, and 16, 2022, or his sentencing hearing held on July 13, 2022.1 The trial court

sentenced Davis by final order entered July 18, 2022. Under Rule 5A:8(a), a transcript must be

filed no later than “60 days after entry of the final judgment,” which was September 16, 2022.

See Code § 1-210(B). On August 29, 2022, Davis moved this Court to extend the deadline to

timely file a transcript. This Court granted Davis’s motion on August 31, 2022, and extended the

transcript deadline to October 17, 2022. Davis filed the transcripts from his three-day jury trial

with the trial court one day late on October 18, 2022.

“If . . . the transcript [or statement of facts] is indispensable to the determination of the case,

then the requirements for making the transcript [or statement of facts] a part of the record on appeal

must be strictly adhered to.” Bay v. Commonwealth, 60 Va. App. 520, 528 (2012) (alterations in

original) (quoting Turner v. Commonwealth, 2 Va. App. 96, 99 (1986)). “This Court has no

authority to make exceptions to the filing requirements set out in the Rules.” Shiembob v.

Shiembob, 55 Va. App. 234, 246 (2009) (quoting Turner, 2 Va. App. at 99); see also Bay, 60

Va. App. at 528-29. “Whether the record is sufficiently complete to permit our review on appeal is

a question of law subject to our de novo review.” Bay, 60 Va. App. at 529.

After reviewing the record and the opening brief, we conclude that timely-filed

transcripts, or a written statement of facts in lieu of transcripts, are indispensable to a

determination of the assignments of error on appeal. See Smith v. Commonwealth, 32 Va. App.

1 Davis timely filed a transcript from the general district court certification proceeding on August 30, 2019. -2- 766, 772 (2000); Turner, 2 Va. App. at 99-100. Therefore, we cannot address the merits of

Davis’s assignments of error. Rule 5A:8(b)(4)(ii). Consequently, we affirm the convictions.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

Affirmed.

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