COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia
JULIUS M. MARTIN MEMORANDUM OPINION * BY v. Record No. 2715-95-2 JUDGE LARRY G. ELDER NOVEMBER 26, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY Robert G. O'Hara, Judge H. Lee Townsend, III (Townsend and Bloom, P.L.L.C., on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Julius M. Martin (appellant) appeals his conviction of
malicious wounding. He makes three assignments of error. First,
he contends that the trial court abused its discretion in denying
his motion for a continuance when he proffered that a material
witness was not present. Second, he asserts that the trial court
abused its discretion in removing him from the courtroom during
his trial as a result of his allegedly disruptive behavior.
Third, he contends that the trial court erred in refusing to
instruct the jury on the lesser included offense of unlawful
wounding. For the reasons that follow, we affirm.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
FACTS
Appellant, an inmate at the Greensville Correctional
Facility, was charged with maliciously wounding another inmate on
December 25, 1994. Following a continuance that was previously
granted to the Commonwealth, appellant was tried on September 28,
1995. The trial was held in a small temporary courtroom that
measured approximately twenty feet by thirty feet and was
occupied by twenty to thirty people during his trial. At the beginning of the trial, after the swearing of the
jury panel, appellant's counsel moved the trial court for a
continuance on the ground that a material witness was not
present. Although she stated that the witness was material
because he had witnessed the alleged crime, she did not proffer
the substance of the missing witness' testimony. The missing
witness was not subpoenaed because he had failed to respond to a
letter sent by appellant's counsel requesting information
regarding the crime and because appellant had failed to inform
his counsel that the missing witness was an eye-witness until the
morning of his trial. The trial court denied appellant's motion.
Immediately after the denial of his motion for a
continuance, appellant rose from his seat and attempted to leave
the courtroom. After three officers restrained him, appellant
became "vocal, loud, and disruptive." The trial court warned
appellant three times to stop his disruptive behavior. When
-2- appellant persisted in his disruptive conduct, the trial court
became concerned for the safety of the others in the cramped
courtroom and ordered appellant removed from the courtroom. The
trial court then allowed appellant's counsel to speak with
appellant in order to inform him that he would be allowed back
into the courtroom on the condition that he cease his disruptive
behavior. Appellant's counsel returned and stated to the trial
court that she had explained to appellant the conditions of his
return to the courtroom and that he risked forfeiting his right
to be present at his trial. She also stated that appellant
wished not to return and remained in the prison van. Appellant remained in the van during his trial. Upon
request by the trial court, appellant's counsel spoke with him at
the conclusion of the Commonwealth's evidence, informed him of
its content and advised him again that he could return to the
courtroom on the condition of good behavior. Appellant again
refused to return to the courtroom and the remainder of the trial
was conducted outside of his presence.
The evidence introduced at trial was limited to two
witnesses offered by the Commonwealth. The inmate-victim of
appellant's attack testified that appellant approached him twice
during the recreation period on December 25 and asked him a
question. After the inmate answered the question a second time
and was walking away, appellant swung at the inmate and stabbed
him several times with a makeshift knife. The inmate, who was
-3- unarmed, then ran from appellant as appellant started chasing him
throughout the prison recreation area. The altercation ended
when a prison guard opened a door through which the inmate fled
and when another inmate intervened to stop appellant. A
correctional officer who witnessed the incident testified that he
also saw appellant chasing the inmate and stabbing him several
times as the inmate tried to flee.
At the conclusion of the evidence, appellant's attorney
proposed a jury instruction on the lesser included charge of
unlawful wounding that the trial court refused. Instead, the
trial court instructed the jury on the crime of malicious
wounding and included an explanation of the element of malice.
The jury returned a verdict of guilty. II.
DENIAL OF MOTION FOR A CONTINUANCE
Appellant contends that the trial court abused its
discretion when it denied his motion for a continuance at the
beginning of his trial. We disagree.
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of the trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994), cert. denied, U.S. , 115 S. Ct.
1826, 131 L.E.2d 747 (1995). An appellant challenging a denial
of a continuance must show both an abuse of discretion and
-4- prejudice. Id. The prejudice allegedly resulting from the
denial of a continuance cannot be based on mere speculation and
must appear from the record. Id.; Lowery v. Commonwealth, 9 Va.
App. 304, 307, 387 S.E.2d 508, 510 (1990). Specifically, the
content of a witness' expected testimony must be set forth in the
trial record by either "(1) a unilateral avowal of counsel, if
unchallenged; (2) a mutual stipulation of the parties; or (3) the
taking of testimony of the witness outside the presence of the
jury." Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.
We hold that the denial of appellant's motion for a
continuance was not improper. Even assuming that the trial
court's denial of the motion was an abuse of discretion,
appellant has failed to show any prejudice. Although appellant's
counsel stated that the missing witness was "material," there was
no proffer of the witness' expected testimony, either
unilaterally or by stipulation. Thus, whether or not appellant
was prejudiced by the denial of his motion for a continuance is a
matter of speculation because we cannot determine whether the
missing witness' testimony would have been in appellant's favor. Id. at 307-08, S.E.2d at 510; Stewart v. Commonwealth, 10 Va.
App. 563, 569, 394 S.E.2d 509, 513 (1990). Nor can we say that
appellant was denied the opportunity to fully investigate the
evidence in preparation for trial. Appellant had several months
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia
JULIUS M. MARTIN MEMORANDUM OPINION * BY v. Record No. 2715-95-2 JUDGE LARRY G. ELDER NOVEMBER 26, 1996 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY Robert G. O'Hara, Judge H. Lee Townsend, III (Townsend and Bloom, P.L.L.C., on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General; Margaret Ann B. Walker, Assistant Attorney General, on brief), for appellee.
Julius M. Martin (appellant) appeals his conviction of
malicious wounding. He makes three assignments of error. First,
he contends that the trial court abused its discretion in denying
his motion for a continuance when he proffered that a material
witness was not present. Second, he asserts that the trial court
abused its discretion in removing him from the courtroom during
his trial as a result of his allegedly disruptive behavior.
Third, he contends that the trial court erred in refusing to
instruct the jury on the lesser included offense of unlawful
wounding. For the reasons that follow, we affirm.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. I.
FACTS
Appellant, an inmate at the Greensville Correctional
Facility, was charged with maliciously wounding another inmate on
December 25, 1994. Following a continuance that was previously
granted to the Commonwealth, appellant was tried on September 28,
1995. The trial was held in a small temporary courtroom that
measured approximately twenty feet by thirty feet and was
occupied by twenty to thirty people during his trial. At the beginning of the trial, after the swearing of the
jury panel, appellant's counsel moved the trial court for a
continuance on the ground that a material witness was not
present. Although she stated that the witness was material
because he had witnessed the alleged crime, she did not proffer
the substance of the missing witness' testimony. The missing
witness was not subpoenaed because he had failed to respond to a
letter sent by appellant's counsel requesting information
regarding the crime and because appellant had failed to inform
his counsel that the missing witness was an eye-witness until the
morning of his trial. The trial court denied appellant's motion.
Immediately after the denial of his motion for a
continuance, appellant rose from his seat and attempted to leave
the courtroom. After three officers restrained him, appellant
became "vocal, loud, and disruptive." The trial court warned
appellant three times to stop his disruptive behavior. When
-2- appellant persisted in his disruptive conduct, the trial court
became concerned for the safety of the others in the cramped
courtroom and ordered appellant removed from the courtroom. The
trial court then allowed appellant's counsel to speak with
appellant in order to inform him that he would be allowed back
into the courtroom on the condition that he cease his disruptive
behavior. Appellant's counsel returned and stated to the trial
court that she had explained to appellant the conditions of his
return to the courtroom and that he risked forfeiting his right
to be present at his trial. She also stated that appellant
wished not to return and remained in the prison van. Appellant remained in the van during his trial. Upon
request by the trial court, appellant's counsel spoke with him at
the conclusion of the Commonwealth's evidence, informed him of
its content and advised him again that he could return to the
courtroom on the condition of good behavior. Appellant again
refused to return to the courtroom and the remainder of the trial
was conducted outside of his presence.
The evidence introduced at trial was limited to two
witnesses offered by the Commonwealth. The inmate-victim of
appellant's attack testified that appellant approached him twice
during the recreation period on December 25 and asked him a
question. After the inmate answered the question a second time
and was walking away, appellant swung at the inmate and stabbed
him several times with a makeshift knife. The inmate, who was
-3- unarmed, then ran from appellant as appellant started chasing him
throughout the prison recreation area. The altercation ended
when a prison guard opened a door through which the inmate fled
and when another inmate intervened to stop appellant. A
correctional officer who witnessed the incident testified that he
also saw appellant chasing the inmate and stabbing him several
times as the inmate tried to flee.
At the conclusion of the evidence, appellant's attorney
proposed a jury instruction on the lesser included charge of
unlawful wounding that the trial court refused. Instead, the
trial court instructed the jury on the crime of malicious
wounding and included an explanation of the element of malice.
The jury returned a verdict of guilty. II.
DENIAL OF MOTION FOR A CONTINUANCE
Appellant contends that the trial court abused its
discretion when it denied his motion for a continuance at the
beginning of his trial. We disagree.
"Whether to grant or deny a continuance of a trial is a
matter that lies within the sound discretion of the trial court,
and its ruling will not be reversed on appeal unless it is
plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450
S.E.2d 146, 151 (1994), cert. denied, U.S. , 115 S. Ct.
1826, 131 L.E.2d 747 (1995). An appellant challenging a denial
of a continuance must show both an abuse of discretion and
-4- prejudice. Id. The prejudice allegedly resulting from the
denial of a continuance cannot be based on mere speculation and
must appear from the record. Id.; Lowery v. Commonwealth, 9 Va.
App. 304, 307, 387 S.E.2d 508, 510 (1990). Specifically, the
content of a witness' expected testimony must be set forth in the
trial record by either "(1) a unilateral avowal of counsel, if
unchallenged; (2) a mutual stipulation of the parties; or (3) the
taking of testimony of the witness outside the presence of the
jury." Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.
We hold that the denial of appellant's motion for a
continuance was not improper. Even assuming that the trial
court's denial of the motion was an abuse of discretion,
appellant has failed to show any prejudice. Although appellant's
counsel stated that the missing witness was "material," there was
no proffer of the witness' expected testimony, either
unilaterally or by stipulation. Thus, whether or not appellant
was prejudiced by the denial of his motion for a continuance is a
matter of speculation because we cannot determine whether the
missing witness' testimony would have been in appellant's favor. Id. at 307-08, S.E.2d at 510; Stewart v. Commonwealth, 10 Va.
App. 563, 569, 394 S.E.2d 509, 513 (1990). Nor can we say that
appellant was denied the opportunity to fully investigate the
evidence in preparation for trial. Appellant had several months
to inform his counsel of the material nature of the missing
witness to ensure that his counsel would subpoena the witness to
-5- appear at trial.
-6- III.
REMOVAL FROM THE COURTROOM
Although a person accused of a crime in Virginia has both a
constitutional and statutory right to be present at his own
trial, 1 this right is not absolute. Martin v. Commonwealth, 11
Va. App. 397, 405, 399 S.E.2d 623, 627 (1990) (citing Illinois v.
Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 1060-61, 25 L.Ed.2d
353 (1970), reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L.E.2d
80 (1970)). An accused forfeits his right to be present at his
trial "if, after he has been warned by the judge that he will be
removed if he continues his disruptive behavior he nevertheless
insists on conducting himself in a manner so disorderly,
disruptive, and disrespectful of the court that his trial cannot
be carried on with him in the courtroom." Quintana v.
Commonwealth, 224 Va. 127, 144, 295 S.E.2d 643, 651 (1982), cert.
denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L.E.2d 501 (1983),
reh. denied, 461 U.S. 940, 103 S. Ct. 2113, 77 L.E.2d 316 (1983)
(quoting Allen, 397 U.S. at 343, 90 S. Ct. at 1060). Appellant does not contend that the trial court lacked the
power to remove him from the courtroom for contumacious behavior.
Martin, 11 Va. App. at 405-06, 399 S.E.2d at 627 (quoting Allen,
397 U.S. at 343-44, 90 S. Ct. at 1061) (stating that it is
constitutionally permissible for a trial judge to remove an 1 U.S. Const. amend. VI; Va. Const. art. I, § 8; Code § 19.2-259 (stating that "a person tried for felony shall be personally present during the trial").
-7- obstreperous defendant from the courtroom until he promises to
behave properly). Instead, appellant argues that his behavior
was not so disorderly, disruptive, and disrespectful to warrant
his removal from the courtroom. We disagree.
"The conduct of a trial and the imposition of measures
necessary to ensure security and maintain decorum is left to the
sound discretion of the trial court," Martin, 11 Va. App. at 405,
399 S.E.2d at 627, and its rulings and orders will not be
reversed on appeal unless plainly wrong. When removing a
defendant from the courtroom or taking other measures, the trial
court must make a record of the reasons for the choice of
measures taken to ensure that a reviewing court may determine
whether the trial court abused its discretion. Id. at 406,
S.E.2d at 628.
In this case, it does not appear that the trial court was
plainly wrong to remove appellant from the courtroom. The trial
court described appellant's conduct in the record it made
explaining the reasons for ordering his removal. It appears from
the record that appellant's behavior "was disorderly, disruptive,
disrespectful, and persistently contumacious in the face of
repeated warnings" and that his removal was even more warranted
by the cramped conditions in the courtroom. Quintana, 224 Va. at
144, 295 S.E.2d at 652 (holding that trial court did not abuse
discretion when it removed defendant following warnings that he
cease verbally interrupting the proceedings). We hold that the
-8- trial court did not abuse its discretion in removing appellant
from the courtroom during his trial.
IV.
REFUSAL TO GIVE JURY INSTRUCTION
Appellant also contends that the trial court committed
reversible error when it refused his request to instruct the jury
on the lesser included offense of unlawful wounding. We
disagree. "If there is any evidence that would support a conviction
for the lesser included offense, the trial court, must, upon
request of counsel, instruct the jury as to the lesser included
offense. An instruction, however, must be based on more than a
scintilla of evidence." Miller v. Commonwealth, 5 Va. App. 22,
24, 359 S.E.2d 841, 842 (1987) (citations omitted).
We are unable to find any evidence in the record that
supports appellant's theory that he attacked the victim-inmate
without malice and in the heat of passion. The only evidence
offered at trial concerning the attack was that appellant
attacked the inmate with a makeshift knife after the inmate
responded to a question. There is no evidence concerning any
prior conflict between appellant and the inmate nor any evidence
indicating that the inmate provoked either fear or rage in
appellant that prompted the attack. Instead, the uncontroverted
testimony of the inmate was that he was unarmed and did not
retaliate after the appellant stabbed him. See id. at 26, S.E.2d
-9- at 843 (holding that trial court should have given instruction on
unlawful wounding where evidence showed that victim provoked a
fight with the defendant minutes before defendant shot him).
Because there is no evidence that appellant attacked the inmate
"upon a reasonable provocation, in the heat of passion," id., we
hold that the trial court did not err in refusing to instruct the
jury on the offense of unlawful wounding.
In light of the foregoing reasons, we affirm the conviction
of malicious wounding. Affirmed.
-10-