William James Buchanan v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 13, 1996
• Docket: 2376943
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Fitzpatrick

WILLIAM JAMES BUCHANAN

v. Record No. 2376-94-3 MEMORANDUM OPINION * BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA FEBRUARY 13, 1996

FROM THE CIRCUIT COURT OF BLAND COUNTY A. Dow Owens, Judge

James R. Henderson, IV (Henry A. Barringer; Henderson and DeCourcy, P.C., on brief), for appellant. Thomas C. Daniel, Assistant Attorney General (James S. Gilmore, III, Attorney General; Katherine P. Baldwin, Assistant Attorney General, on brief), for appellee.

William James Buchanan was convicted in a jury trial of

robbery and murder. Buchanan contends that the trial court erred

by failing to grant a continuance after the court appointed

defense investigator informed defense counsel that he could not

assist in the defense, and by overruling Buchanan's objections to

four jurors that were based on irregularities in the venire facias. We hold that the trial court did not err and affirm the

defendant's convictions. I. Continuance

"The decision whether to grant a continuance is a matter

within the sound discretion of the trial court. Abuse of

* Pursuant to Code § 17-116.010 this opinion is not

designated for publication. discretion and prejudice to the complaining party are essential

to reversal." Lowery v. Commonwealth, 9 Va. App. 304, 307, 387

S.E.2d 508, 509 (1990) (quoting Venable v. Venable, 2 Va. App.

178, 181, 342 S.E.2d 646, 648 (1986)). Here, the defendant has

shown neither abuse of discretion nor prejudice.

Defense counsel was appointed April 27, 1994, and the

defendant was granted a continuance until August 30, 1994 to

allow defense counsel to prepare for trial, which was continued

again until September 13, 1994. Thus, defense counsel had over

four months to investigate the case, interview witnesses, and

subpoena Bernard Neal for trial. In fact, the record reveals

that defense counsel prepared for trial by requesting the case

file from the public defender's office in early May and discussed

the case with Investigator Hart on July 22. Moreover, after

Investigator Hart informed counsel on August 31 that he would be

unable to interview potential witnesses, counsel had fourteen

days to secure the attendance of Bernard Neal but made no effort

to do so. On these facts, defense counsel had ample opportunity

to investigate the case and prepare for trial. The trial court

did not abuse its discretion by overruling the motions for a

continuance. II. Venire Facias

Code § 8.01-351 requires that the circuit court clerk file

the venire facias "showing the name, age, address, occupation and

employer of each juror." A verdict shall not be set aside on the

- 2 - grounds that the venire facias contained an irregularity "unless

it appears that the irregularity was intentional or that the

irregularity . . . be such as to probably cause injustice . . .

to the accused." Code § 8.01-352(B); O'Dell v. Commonwealth, 234

Va. 672, 690, 364 S.E.2d 491, 501, cert. denied, 488 U.S. 871

(1988).

Citing Harmon v. Commonwealth, 212 Va. 442, 185 S.E.2d 48

(1971), the defendant asserts that the irregularities in the

venire as to the five challenged jurors are presumed to be

intentional. See id. at 444, 185 S.E.2d at 50 (stating that "the

issuance of writs of venire facias different from what the law

prescribes is an intentional irregularity and not within the

curative provisions of the statute"). However, the facts in

Harmon are inapplicable to the facts in the present case. In

Harmon, "the statutory provisions which govern the summoning of a

jury were not followed." Id. Here, the jury was summoned

properly, but the venire facias omitted information concerning

the occupation and employer of two veniremen, and contained

incorrect information as to the occupations and employers of

three veniremen. The evidence fails to show that the omissions

or irregularities were intentional, but moreover, there was no

showing of prejudice. Code § 8.01-352(B).

The trial court did not err by overruling the defendant's

motions for a continuance or by overruling the defendant's

objections to the four veniremen. Accordingly, we affirm the

- 3 - defendant's convictions.

Affirmed.

- 4 -