Jeremy M. Vessels v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 21, 2000
• Docket: 2285992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Annunziata Argued at Richmond, Virginia

JEREMY M. VESSELS MEMORANDUM OPINION * BY v. Record No. 2285-99-2 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 21, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG John W. Scott, Jr., Judge

Donald M. Haddock, Jr. (Roberts, Ashby & Parrish, on brief), for appellant.

Robert H. Anderson, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

On March 18, 1999, the appellant, Jeremy Vessels, was

convicted of malicious wounding and the use of a firearm in the

commission of the malicious wounding. On appeal he alleges his

conviction should be reversed on the grounds that (1) the failure

to properly arraign him constituted a denial of his constitutional

right to be informed of the charges against him, and (2) the

variance between the information in the bill of particulars

provided by the Commonwealth and the evidence the Commonwealth

produced at trial prejudiced Vessels in his preparation for trial.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Because we find Vessels's appeal is procedurally barred under Rule

5A:18, we affirm.

BACKGROUND

Guided by well established principles, we review the

evidence in the light most favorable to the Commonwealth, the

party prevailing below. Juares v. Commonwealth, 26 Va. App.

154, 156, 493 S.E.2d 677, 678 (1997). On January 22, 1999,

Vessels was arraigned in a group during which the trial judge

informed the group of defendants that they had the right to have

their indictments read to them and that they could waive that

right. However, the judge never asked the defendants if they

wished to waive their right to the reading of the indictments

lodged against them, nor did he read the charges to the

defendants. At the arraignment, Vessels, through his attorney,

pled not guilty to the two charges against him.

The crimes with which Vessels was charged stemmed from a

shoot-out in an alley between two groups of people. During the

shoot-out, a bullet entered the side of Shirley Minor's home,

striking her in the leg. The evidence presented at trial showed

that Vessels had fired a handgun and that at least one member of

the opposing group was returning fire with a shotgun. Although

the police found holes from both a handgun and a shotgun on the

exterior of Minor's home, the shotgun holes did not completely

penetrate the side of the house. The police thus concluded that

- 2 - Minor had been shot with a handgun and that Vessels had been the

shooter.

Before the trial the Commonwealth filed a bill of

particulars. In the bill, the Commonwealth stated that "[s]everal

witnesses will testify that Jeremy Vessels was seen walking in the

direction of Mrs. Minor's home just minutes before she was shot"

and that "Mrs. Minor was shot with a shotgun." At the trial, the

Commonwealth presented witnesses who testified that they actually

saw Vessels in the alley. One witness testified that she actually

saw Vessels fire his gun, and another witness testified that she

saw Vessels reach into his pants to remove something. In

addition, the evidence demonstrated that Minor had been shot by a

handgun, not a shotgun, and that the shotgun was actually used by

the group firing at Vessels.

Thus, the bill of particulars varied from the evidence

presented at trial in that it misstated the type of gun used to

commit the crime and it understated what the witnesses had seen

and would testify to. Vessels alleges that he was prejudiced by

this variance in that the bill of particulars misled him in his

preparation for trial.

ANALYSIS

The Commonwealth alleges that both of Vessels's claims are

barred under Rule 5A:18 because he failed to raise either of the

issues at any of the proceedings below. We agree.

- 3 - Rule 5A:18 provides, in relevant part, "[n]o ruling of the

trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds therefor

at the time of the ruling, except for good cause shown or to

enable the Court of Appeals to attain the ends of justice."

At no point during any of the proceedings below did Vessels

raise either of the issues he alleges here on appeal. These

issues were therefore not properly preserved for appeal. Rule

5A:18.

Furthermore, Vessels has failed to show good cause for not

previously raising these objections and as the record fails to

affirmatively disclose that a miscarriage of justice has occurred,

we decline to invoke the "ends of justice" exception to Rule

5A:18. See Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d

274, 277 (1988) ("The 'ends of justice' provision is a narrow one

that allows consideration when the record affirmatively shows that

a miscarriage of justice has occurred.").

When the court informed Vessels of his rights and asked

whether he had discussed the charges with his attorney and

understood the charges against him, Vessels answered in the

affirmative. Vessels then voluntarily entered a not guilty plea.

We therefore find that a miscarriage of justice has not occurred

and decline to invoke the "ends of justice" exception as to this

issue.

- 4 - We likewise find that the "ends of justice" exception may not

be invoked with respect to Vessels's second point of error, which

is based on an alleged variation between the bill of particulars

and the evidence presented at trial. The variances were not

substantial. Vessels was charged with maliciously wounding Minor,

and although the bill of particulars specified that Minor had been

shot with a shotgun, rather than a handgun, a variance concerning

the weapon used in the charged crime is not material. Ridgeway v.

Hutto, 474 F.2d 22 (8th Cir. 1973). Additionally, the

Commonwealth is not required to set forth its whole case and all

of its evidence in a bill of particulars. Here, the Commonwealth

informed Vessels that it had witnesses who could place him at the

scene of the crime. Although the testimony of the witnesses was

more detailed than the information contained in the bill, the bill

informed him of the nature of the charges against him. Nothing

more was required under Virginia law. See Strickler v.

Commonwealth, 241 Va. 482, 490, 404 S.E.2d 227, 233 (1991) (the

purpose of the indictment and bill of particulars is to make the

defendant aware of the "nature and character" of the charges

against him). In addition, the record does not show that Vessels

was surprised by the Commonwealth's variant proof, nor did he

request a continuance after hearing the variant proof for the

purpose of preparing a new defense. Ridgeway, 474 F.2d at 24.

In sum, we find that Vessels's two claims are barred under

Rule 5A:18 because he failed to raise these issues prior to his

- 5 - appeal, and there is no reason to invoke the "ends of justice"

exception in this case as the record fails to show that a

miscarriage of justice has occurred. Accordingly, we affirm the

judgment.

Affirmed.

- 6 -