COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
CORWYN CORDELL SKINNER MEMORANDUM OPINION * v. Record No. 0926-96-3 BY JUDGE CHARLES H. DUFF APRIL 8, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Elizabeth P. Murtagh, Assistant Public Defender, for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Corwyn Cordell Skinner (appellant) was convicted in a bench
trial of possessing cocaine. On appeal, appellant challenges the
trial judge's refusal to grant a continuance and the sufficiency
of the evidence to support his conviction. For the reasons that
follow, we affirm the conviction. THE CONTINUANCE
Appellant was arrested on October 26, 1995. On that same
day, he was released on bond. On November 8, 1995, counsel was
appointed. Defense counsel was present at appellant's December
16, 1995 preliminary hearing. On February 1, 1996, the day of
trial, defense counsel orally moved for a continuance and made
the following representations: * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mr. Skinner has a brother that is in Minnesota that was not willing to come back to testify on his behalf. He got a call from his brother yesterday. And his brother indicates he's coming back to this area in March for a family get-together, a family wedding that has been planned. I would like to have that witness. I think he has some -- I've not talked to him directly. Based on information my client has given me, he might be able to corroborate some information my client has. The cocaine in this case is point zero three grams, very small amount of drugs. And it's -- this other witness can tell us where the coat was before my client got it. He was a material witness. I don't have exact dates that he will be here in Lynchburg. But I do think if we could get him here, it would be helpful to my client's case. So I'm in a position to ask for a continuance today.
The trial judge asked defense counsel whether she could
assure the witness' presence or whether the witness "indicated
[to her that] he would come." Defense counsel was unable to
answer affirmatively. Neither defense counsel nor the prosecutor
had spoken with the witness. The witness "was living in
Minnesota" at the time of the offense and at the time of the
preliminary hearing. The trial judge asked whether the witness'
testimony would be incriminating so that he might invoke his
privilege not to testify. Defense counsel stated, "Judge, that's
why I feel like I need to talk to him myself. And I did not know
about this witness until this morning." Based on defense
counsel's uncertainty and the fact that the witness might invoke
his privilege against self-incrimination, the trial judge found
that the witness was not available and denied the motion.
2 Despite never having talked with the witness, defense
counsel presented the following handwritten proffer: Corey Skinner gave Corwyn Skinner the jacket he was wearing approximately 1 year before this incident. Corey Skinner would testify that he had put cocaine in that jacket previously.
Although she signed it, the prosecutor refused to stipulate to
the proffer.
"'"[A] motion for a continuance in order to obtain the
presence of a missing witness is addressed to the sound
discretion of the trial court whose decision will not be reversed
unless the record affirmatively shows an abuse of discretion."'"
Gray v. Commonwealth, 16 Va. App. 513, 517, 431 S.E.2d 86, 89
(1993) (quoting Cherricks v. Commonwealth, 11 Va. App. 96, 99,
396 S.E.2d 397, 399 (1990)). "Abuse of discretion [in denying a
continuance] and prejudice to the complaining party are essential
for reversal. In considering a request for a continuance, the
court is to consider all the circumstances of the case." Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986)
(citations omitted). If the expected testimony is competent and material and not merely cumulative, and if it is credible and probably will affect the result, and will likely be obtained at a future trial, and if due diligence has been exercised to secure the attendance of the absent witness, and if the accused cannot safely go to trial without his testimony, generally a continuance will be granted.
Lacks v. Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715
3 (1944) (citations 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). See also Bryant v. Commonwealth, 248 Va. 179, 181,
445 S.E.2d 667, 669 (1994) (defendant did not provide counsel
with witness' address until six days before trial). "The burden
is on the party seeking a continuance to show that it is likely
that the witness would be present at a later date and would
testify in the manner indicated in the proffer." Chichester v.
Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994)
(citation omitted), cert. denied, 115 S. Ct. 1134 (1995).
Although the proffer suggests that defendant's brother gave
him the jacket, defense counsel informed the trial judge that the
jacket was not available because the defendant "dumped the coat."
Thus, even if the defendant's brother had testified, he could
only have speculated that the missing jacket was the same jacket
he had given defendant. "While justice, not speed, should be
paramount in determining whether a continuance will be granted,
the court is not obligated to grant a continuance based on mere
speculation." Smith, 16 Va. App. at 634-35, 432 S.E.2d at 5.
See also Chichester, 248 Va. at 322, 448 S.E.2d at 646 (noting
that, even if defendant had been able to locate and produce
missing witnesses, it was "unlikely" they would have admitted
4 committing crimes for which defendant was on trial).
The appellant waited until the day of trial to inform
defense counsel that his brother was a material witness. The
trial judge could reasonably conclude on that ground that
appellant failed to exercise due diligence in procuring his
brother's testimony. The record is silent as to why appellant
withheld the existence of the witness until the day of trial.
Cf. Gray, 16 Va. App. at 518-19, 431 S.E.2d at 90 (holding that
defendant exercised due diligence when he timely and properly
subpoenaed out-of-state witnesses under Uniform Act to Secure the
Attendance of Witnesses from without a State in Criminal
Proceedings, pursuant to Code §§ 19.2-272 through 19.2-282).
Because defense counsel had never spoken with the witness, and
because the jacket that was to be the subject of the brother's
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia
CORWYN CORDELL SKINNER MEMORANDUM OPINION * v. Record No. 0926-96-3 BY JUDGE CHARLES H. DUFF APRIL 8, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Richard S. Miller, Judge Elizabeth P. Murtagh, Assistant Public Defender, for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Corwyn Cordell Skinner (appellant) was convicted in a bench
trial of possessing cocaine. On appeal, appellant challenges the
trial judge's refusal to grant a continuance and the sufficiency
of the evidence to support his conviction. For the reasons that
follow, we affirm the conviction. THE CONTINUANCE
Appellant was arrested on October 26, 1995. On that same
day, he was released on bond. On November 8, 1995, counsel was
appointed. Defense counsel was present at appellant's December
16, 1995 preliminary hearing. On February 1, 1996, the day of
trial, defense counsel orally moved for a continuance and made
the following representations: * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Mr. Skinner has a brother that is in Minnesota that was not willing to come back to testify on his behalf. He got a call from his brother yesterday. And his brother indicates he's coming back to this area in March for a family get-together, a family wedding that has been planned. I would like to have that witness. I think he has some -- I've not talked to him directly. Based on information my client has given me, he might be able to corroborate some information my client has. The cocaine in this case is point zero three grams, very small amount of drugs. And it's -- this other witness can tell us where the coat was before my client got it. He was a material witness. I don't have exact dates that he will be here in Lynchburg. But I do think if we could get him here, it would be helpful to my client's case. So I'm in a position to ask for a continuance today.
The trial judge asked defense counsel whether she could
assure the witness' presence or whether the witness "indicated
[to her that] he would come." Defense counsel was unable to
answer affirmatively. Neither defense counsel nor the prosecutor
had spoken with the witness. The witness "was living in
Minnesota" at the time of the offense and at the time of the
preliminary hearing. The trial judge asked whether the witness'
testimony would be incriminating so that he might invoke his
privilege not to testify. Defense counsel stated, "Judge, that's
why I feel like I need to talk to him myself. And I did not know
about this witness until this morning." Based on defense
counsel's uncertainty and the fact that the witness might invoke
his privilege against self-incrimination, the trial judge found
that the witness was not available and denied the motion.
2 Despite never having talked with the witness, defense
counsel presented the following handwritten proffer: Corey Skinner gave Corwyn Skinner the jacket he was wearing approximately 1 year before this incident. Corey Skinner would testify that he had put cocaine in that jacket previously.
Although she signed it, the prosecutor refused to stipulate to
the proffer.
"'"[A] motion for a continuance in order to obtain the
presence of a missing witness is addressed to the sound
discretion of the trial court whose decision will not be reversed
unless the record affirmatively shows an abuse of discretion."'"
Gray v. Commonwealth, 16 Va. App. 513, 517, 431 S.E.2d 86, 89
(1993) (quoting Cherricks v. Commonwealth, 11 Va. App. 96, 99,
396 S.E.2d 397, 399 (1990)). "Abuse of discretion [in denying a
continuance] and prejudice to the complaining party are essential
for reversal. In considering a request for a continuance, the
court is to consider all the circumstances of the case." Venable v. Venable, 2 Va. App. 178, 181, 342 S.E.2d 646, 648 (1986)
(citations omitted). If the expected testimony is competent and material and not merely cumulative, and if it is credible and probably will affect the result, and will likely be obtained at a future trial, and if due diligence has been exercised to secure the attendance of the absent witness, and if the accused cannot safely go to trial without his testimony, generally a continuance will be granted.
Lacks v. Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715
3 (1944) (citations 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). See also Bryant v. Commonwealth, 248 Va. 179, 181,
445 S.E.2d 667, 669 (1994) (defendant did not provide counsel
with witness' address until six days before trial). "The burden
is on the party seeking a continuance to show that it is likely
that the witness would be present at a later date and would
testify in the manner indicated in the proffer." Chichester v.
Commonwealth, 248 Va. 311, 322, 448 S.E.2d 638, 646 (1994)
(citation omitted), cert. denied, 115 S. Ct. 1134 (1995).
Although the proffer suggests that defendant's brother gave
him the jacket, defense counsel informed the trial judge that the
jacket was not available because the defendant "dumped the coat."
Thus, even if the defendant's brother had testified, he could
only have speculated that the missing jacket was the same jacket
he had given defendant. "While justice, not speed, should be
paramount in determining whether a continuance will be granted,
the court is not obligated to grant a continuance based on mere
speculation." Smith, 16 Va. App. at 634-35, 432 S.E.2d at 5.
See also Chichester, 248 Va. at 322, 448 S.E.2d at 646 (noting
that, even if defendant had been able to locate and produce
missing witnesses, it was "unlikely" they would have admitted
4 committing crimes for which defendant was on trial).
The appellant waited until the day of trial to inform
defense counsel that his brother was a material witness. The
trial judge could reasonably conclude on that ground that
appellant failed to exercise due diligence in procuring his
brother's testimony. The record is silent as to why appellant
withheld the existence of the witness until the day of trial.
Cf. Gray, 16 Va. App. at 518-19, 431 S.E.2d at 90 (holding that
defendant exercised due diligence when he timely and properly
subpoenaed out-of-state witnesses under Uniform Act to Secure the
Attendance of Witnesses from without a State in Criminal
Proceedings, pursuant to Code §§ 19.2-272 through 19.2-282).
Because defense counsel had never spoken with the witness, and
because the jacket that was to be the subject of the brother's
testimony was not available, the scope and substance of the
witness' testimony was entirely speculative. For these reasons,
the trial judge did not abuse his discretion in denying the
continuance. SUFFICIENCY OF THE EVIDENCE
"When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Compton v. Commonwealth,
22 Va. App. 751, 753, 473 S.E.2d 95, 96-97 (1996). So viewed,
the evidence established that Officer Holyfield saw appellant
5 approach a man in a "very high drug and crime area" known to be
"an open-air drug market." From across the street about twenty
feet away, Holyfield observed appellant and the man conduct a
brief conversation, after which the man "reached into his pocket,
[and] pulled out a brown piece of paper that appeared to be tied
off at the top." The man "opened the top of it off, reached down
into the [paper, and] pinched an object" with his thumb and index
finger. Appellant "had his hand with his palms up, [and] his
fingers extended." The man then "laid the object into
[appellant's] hand [and appellant] clenched his hand." Holyfield
approached the two men as soon as the man placed something in
appellant's hand. The man fled when he saw Holyfield approach.
When appellant "turned around, [he] still had his hand clenched."
Holyfield "told [appellant] to put his hands up where [he] could
see them." However, appellant "took his [clenched] hand and put
it into his right -- into like a side pocket on the coat that he
was wearing." As Holyfield drew closer, appellant said "You c[an] search
me. Go ahead. I ain't got no drugs. I ain't got nothing."
"In the right pocket where [appellant's] hand went into,
[Holyfield] observed some very small, off-white chunks that
appeared to be suspected crack cocaine that were -- it [sic]
appeared to have been crushed up and were lying in the bottom of
the pocket." Holyfield was able to pick out some pieces with his
fingers. He also testified that crack cocaine is "[c]rushable."
6 The object recovered by Holyfield was tested and proved to
be 0.03 grams of cocaine. On cross-examination, appellant
acknowledged knowing what crack cocaine looks like and admitted
past cocaine use.
A conviction for possession of illegal drugs requires proof
that the "defendant was aware of the presence and character of
the drugs, and that he intentionally and consciously possessed
them." Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d
491, 497 (1990) (en banc). "Possession of a controlled drug
gives rise to an inference of the defendant's knowledge of its
character." Id. at 101, 390 S.E.2d at 498-99. Moreover, "[t]he
requisite knowledge on the part of the accused may be proved by
evidence of acts, declarations or conduct showing that he knew of
the existence of narcotics at the place they were found." Harmon
v. Commonwealth, 15 Va. App. 440, 447, 425 S.E.2d 77, 81 (1992).
While in a known drug area, Holyfield saw what his training
and experience led him to believe was a drug transaction. During
Holyfield's approach and before he addressed appellant, appellant
spontaneously denied possessing any illegal drugs. Appellant
kept his hand clenched as Holyfield approached, and, instead of
raising his hand as ordered, he thrust it into a coat pocket from
which Holyfield recovered crushed pieces of crack cocaine.
Moreover, appellant admitted he had used and was familiar with
crack cocaine.
The fact finder believed the Commonwealth's evidence and its
7 theory of the case. Conversely, the fact finder rejected
appellant's explanation of how the cocaine got into his pocket.
"The weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). The Commonwealth's evidence was
competent, was not inherently incredible, and was sufficient to
prove beyond a reasonable doubt that appellant was guilty of
possessing cocaine. Accordingly, we affirm appellant's conviction.
Affirmed.