COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia
SCOTT WINDFIELD ROGERS MEMORANDUM OPINION * BY v. Record No. 1086-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 14, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge Anita C. Johnson for appellant.
Daniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
In a bench trial, appellant, Scott Windfield Rogers, was
convicted of selling drug paraphernalia to a juvenile in
violation of Code § 18.2-265.3. On appeal, Rogers challenges the
trial court's refusal to dismiss the case following the
Commonwealth's request to nolle prosequi the matter. He also
contends the trial court erred in refusing to grant him a
continuance and in finding the evidence sufficient to support his
conviction. Because we find that the trial court abused its
discretion in refusing to grant appellant a continuance, we
reverse appellant's conviction and remand the case for further
proceedings if the Commonwealth be so advised.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. FACTS AND PROCEEDINGS
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Appellant's trial for selling drug paraphernalia to a
juvenile was scheduled for October 17, 1996. On October 16,
1996, the prosecutor learned that Joseph Scott, an out-of-state
witness whom the Commonwealth had not subpoenaed for trial, would
be unable to attend the trial the following day because he had
missed his train from Georgia. The prosecutor notified the trial
court and defense counsel that the Commonwealth was moving to nolle prosequi the case, and appellant's trial was removed from
the October 16 docket. On the morning of October 17, the trial
court granted defense counsel's request for a hearing on the
Commonwealth's motion. Before the hearing could occur appellant
left the courthouse, and the trial court refused to conduct the
hearing in his absence. The court then scheduled a hearing on
October 22, an available date for both the Commonwealth and the
defense.
Before the hearing, the Commonwealth filed a notice stating
that it intended to proceed with the trial upon the existing
indictment on October 22. Appellant moved to dismiss the
indictment against him, arguing that the Commonwealth's failure
to have its witness present on October 17 did not constitute
-2- "good cause" for a nolle prosequi as contemplated by Code
§ 19.2-265.3. 1
On October 22, the trial court denied appellant's motion to
dismiss, and indicated that the trial could proceed. Appellant
then requested a continuance to secure the presence of Adam
Martin. Appellant had requested a witness subpoena for Martin
for both the October 17 and the October 22 hearings. The sheriff
had served Martin with the subpoena prior to the October 17 court
date, but was unable to serve him before the hearing on October
22. Appellant claimed that Martin was present in appellant's
home on the night that appellant allegedly sold the drug
paraphernalia to Scott. Although defense counsel had not
interviewed Martin, appellant asserted that Martin's testimony
would be exculpatory. The trial court denied appellant's motion
for a continuance. Scott testified that, while working undercover as a police
informant on January 27, 1996, he visited appellant's residence.
Scott found appellant at home with three men, and two others
arrived a few minutes after Scott. Scott asked if anyone had
drugs for sale, but no one responded affirmatively. Scott asked
to speak to appellant privately in the kitchen. There, Scott
asked appellant if he had "a pipe or any paraphernalia" he could
buy. Appellant said he had a pipe, accompanied Scott to the back 1 Code § 19.2-265.3 provides that a "[n]olle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown."
-3- bedroom, produced a pipe, and sold the pipe to Scott for ten
dollars. Scott previously had seen appellant and others use the
pipe to smoke marijuana.
Scott left appellant's residence and gave the pipe to
Officer William Tarr, who was conducting surveillance of
appellant's home. The pipe tested positively for marijuana
residue. Tarr permitted Scott to keep thirty dollars, which was
the money remaining from the amount Tarr had given Scott before
the purchase. Scott said that Tarr did not pay him when he did not produce
either drugs or paraphernalia. Scott was questioned about a
conversation he had with defense witness Rita Jester concerning
why Scott was testifying. Scott admitted replying words to the
effect that "when people spit on you, you will spit back." Scott
conceded that he had a prior petit larceny conviction.
Tarr testified that before Scott entered appellant's home on
January 27, 1996, he searched Scott, found no drugs or contraband
on him, and gave him forty dollars. Conducting surveillance
outside appellant's home, Tarr saw appellant and Scott move from
their initial positions in the front room towards the back of the
home, where the bedroom was located. A light was illuminated in
the bedroom, and no one else entered that room for ten minutes
until Scott returned to the front room. Tarr stated that Scott
-4- was paid every time he worked as an informant, regardless of
whether he made a purchase of drugs or paraphernalia.
Testifying on his own behalf, appellant stated that he had
seen the pipe on a night in December of 1995, when Scott and
numerous others were in appellant's home. Scott asked appellant
if he could have the pipe. Appellant replied that he knew
nothing about the pipe and had never seen it before. Appellant
said that Scott walked away with the pipe. Appellant said he
observed Scott use marijuana ten to fifteen times. Appellant denied selling anything to Scott, and said he did
not enter the bedroom with Scott on January 27, 1996. Appellant
testified that Scott knew appellant had provided the police with
Scott's name as a possible suspect following a theft from
appellant's home in September of 1995.
Jester testified that appellant had a reputation for honesty
in the community. She said that some people trusted Scott and
some did not. Jester had been a frequent guest at appellant's
home and had seen Scott smoking marijuana there. However, she
had never seen the pipe appellant allegedly sold to Scott, and
never observed appellant sell drug paraphernalia. On the morning
of trial, she asked Scott what had made him "turn on everybody."
Scott responded, "[P]eople spit in your face enough you're going
to spit back."
-5- DENIAL OF APPELLANT'S CONTINUANCE REQUEST 2
Appellant challenges the trial court's refusal to grant him
a continuance to secure the presence of Martin.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray Argued at Norfolk, Virginia
SCOTT WINDFIELD ROGERS MEMORANDUM OPINION * BY v. Record No. 1086-97-1 CHIEF JUDGE JOHANNA L. FITZPATRICK APRIL 14, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY Glen A. Tyler, Judge Anita C. Johnson for appellant.
Daniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
In a bench trial, appellant, Scott Windfield Rogers, was
convicted of selling drug paraphernalia to a juvenile in
violation of Code § 18.2-265.3. On appeal, Rogers challenges the
trial court's refusal to dismiss the case following the
Commonwealth's request to nolle prosequi the matter. He also
contends the trial court erred in refusing to grant him a
continuance and in finding the evidence sufficient to support his
conviction. Because we find that the trial court abused its
discretion in refusing to grant appellant a continuance, we
reverse appellant's conviction and remand the case for further
proceedings if the Commonwealth be so advised.
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. FACTS AND PROCEEDINGS
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
Appellant's trial for selling drug paraphernalia to a
juvenile was scheduled for October 17, 1996. On October 16,
1996, the prosecutor learned that Joseph Scott, an out-of-state
witness whom the Commonwealth had not subpoenaed for trial, would
be unable to attend the trial the following day because he had
missed his train from Georgia. The prosecutor notified the trial
court and defense counsel that the Commonwealth was moving to nolle prosequi the case, and appellant's trial was removed from
the October 16 docket. On the morning of October 17, the trial
court granted defense counsel's request for a hearing on the
Commonwealth's motion. Before the hearing could occur appellant
left the courthouse, and the trial court refused to conduct the
hearing in his absence. The court then scheduled a hearing on
October 22, an available date for both the Commonwealth and the
defense.
Before the hearing, the Commonwealth filed a notice stating
that it intended to proceed with the trial upon the existing
indictment on October 22. Appellant moved to dismiss the
indictment against him, arguing that the Commonwealth's failure
to have its witness present on October 17 did not constitute
-2- "good cause" for a nolle prosequi as contemplated by Code
§ 19.2-265.3. 1
On October 22, the trial court denied appellant's motion to
dismiss, and indicated that the trial could proceed. Appellant
then requested a continuance to secure the presence of Adam
Martin. Appellant had requested a witness subpoena for Martin
for both the October 17 and the October 22 hearings. The sheriff
had served Martin with the subpoena prior to the October 17 court
date, but was unable to serve him before the hearing on October
22. Appellant claimed that Martin was present in appellant's
home on the night that appellant allegedly sold the drug
paraphernalia to Scott. Although defense counsel had not
interviewed Martin, appellant asserted that Martin's testimony
would be exculpatory. The trial court denied appellant's motion
for a continuance. Scott testified that, while working undercover as a police
informant on January 27, 1996, he visited appellant's residence.
Scott found appellant at home with three men, and two others
arrived a few minutes after Scott. Scott asked if anyone had
drugs for sale, but no one responded affirmatively. Scott asked
to speak to appellant privately in the kitchen. There, Scott
asked appellant if he had "a pipe or any paraphernalia" he could
buy. Appellant said he had a pipe, accompanied Scott to the back 1 Code § 19.2-265.3 provides that a "[n]olle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown."
-3- bedroom, produced a pipe, and sold the pipe to Scott for ten
dollars. Scott previously had seen appellant and others use the
pipe to smoke marijuana.
Scott left appellant's residence and gave the pipe to
Officer William Tarr, who was conducting surveillance of
appellant's home. The pipe tested positively for marijuana
residue. Tarr permitted Scott to keep thirty dollars, which was
the money remaining from the amount Tarr had given Scott before
the purchase. Scott said that Tarr did not pay him when he did not produce
either drugs or paraphernalia. Scott was questioned about a
conversation he had with defense witness Rita Jester concerning
why Scott was testifying. Scott admitted replying words to the
effect that "when people spit on you, you will spit back." Scott
conceded that he had a prior petit larceny conviction.
Tarr testified that before Scott entered appellant's home on
January 27, 1996, he searched Scott, found no drugs or contraband
on him, and gave him forty dollars. Conducting surveillance
outside appellant's home, Tarr saw appellant and Scott move from
their initial positions in the front room towards the back of the
home, where the bedroom was located. A light was illuminated in
the bedroom, and no one else entered that room for ten minutes
until Scott returned to the front room. Tarr stated that Scott
-4- was paid every time he worked as an informant, regardless of
whether he made a purchase of drugs or paraphernalia.
Testifying on his own behalf, appellant stated that he had
seen the pipe on a night in December of 1995, when Scott and
numerous others were in appellant's home. Scott asked appellant
if he could have the pipe. Appellant replied that he knew
nothing about the pipe and had never seen it before. Appellant
said that Scott walked away with the pipe. Appellant said he
observed Scott use marijuana ten to fifteen times. Appellant denied selling anything to Scott, and said he did
not enter the bedroom with Scott on January 27, 1996. Appellant
testified that Scott knew appellant had provided the police with
Scott's name as a possible suspect following a theft from
appellant's home in September of 1995.
Jester testified that appellant had a reputation for honesty
in the community. She said that some people trusted Scott and
some did not. Jester had been a frequent guest at appellant's
home and had seen Scott smoking marijuana there. However, she
had never seen the pipe appellant allegedly sold to Scott, and
never observed appellant sell drug paraphernalia. On the morning
of trial, she asked Scott what had made him "turn on everybody."
Scott responded, "[P]eople spit in your face enough you're going
to spit back."
-5- DENIAL OF APPELLANT'S CONTINUANCE REQUEST 2
Appellant challenges the trial court's refusal to grant him
a continuance to secure the presence of Martin. "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 such discretion." This discretion, however, "must be exercised with due regard to the constitutional guaranty of a fair and impartial trial to one accused of crime, and the right to call for evidence in his favor." In determining whether the trial court properly exercised its discretionary powers, we look to the diligence exercised by the moving party to locate the witness and secure his attendance at trial. As well, we must determine if there is anything "in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade trial and not to prepare for it."
Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d
397, 399 (1990) (citations omitted).
After having the original trial removed from the docket
based upon his intention to request a nolle prosequi, the prosecutor filed a notice of intention to proceed with
2 We find that the trial court did not err in refusing to dismiss the case following the Commonwealth's request to nolle prosequi the matter. The Commonwealth advanced a valid basis-- the unexpected absence of Scott--for its motion to nolle prosequi. See Code § 19.2-265.3. Scott's testimony was vital to the Commonwealth's case. Accordingly, the Commonwealth demonstrated good cause for its motion to nolle prosequi, and appellant was not entitled to the dismissal of the indictment against him.
-6- appellant's trial on the merits on October 22, 1996 rather than
pursue the motion to nolle prosequi. 3 On October 18, 1996, the
defense requested a new witness subpoena for Martin, whom the
defense had subpoenaed successfully for the originally scheduled
trial date. The sheriff was unable to execute the service
request, and it was returned.
In requesting a continuance on October 22, 1996, appellant
asserted that Martin was to return to the area from Norfolk
within a few days. The prosecutor did not challenge this
assertion, nor did he allege that prejudice would result from
delaying the trial until Martin could be present. Appellant
argued that Martin was in the residence on the night of the
alleged paraphernalia sale and that Martin's testimony was
exculpatory. The record demonstrates that appellant exercised due
diligence in obtaining the presence of Martin for both the
original trial date and for the subsequent date. The prosecutor,
acting with neither the prior approval of the trial court nor the
agreement of defense counsel, essentially moved the trial date
from October 17 to October 22, 1996. Appellant was entitled to
sufficient notice to permit him to present potentially
exculpatory evidence. The surrounding circumstances did not
3 While the prosecutor's notice contained a certificate that the notice was delivered to defense counsel on October 17, 1996, the notice was not filed in the clerk's office until October 21, 1996.
-7- suggest that appellant requested a continuance for the purpose of
delay. Considering all the particular facts of this case, the
trial court abused its discretion in refusing to grant
appellant's request for a continuance. 4
Appellant also contends the evidence was insufficient to
support his conviction. Although the Commonwealth's evidence was
not insufficient as a matter of law, we make no comment on the
evidence which might be presented on retrial. For the foregoing reasons, we reverse and remand for further
action if the Commonwealth be so advised.
Reversed and remanded.
4 Appellant argues for the first time on appeal that the Commonwealth unfairly manipulated the trial court's docket and violated his due process rights by canceling the October 17 trial, despite the fact that the trial court had neither ordered a nolle prosequi nor granted a continuance. While not approving such a procedure, the Court of Appeals will not consider an argument on appeal which was not presented to the trial court. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Therefore, this argument is barred by Rule 5A:18 and we need not consider it.
-8-