Lomax v. Commonwealth ( 1984 )

COMPTON, J.,

dissenting.

In my opinion, the trial court did not abuse its discretion in refusing to grant defendant’s motion for a continuance.

Defendant’s July 11, 1983 discovery motion, filed three weeks and two days before trial, did not specify a time by which the requested information should be produced. Indeed, the July 11 discovery order entered upon the motion did not fix a time for production of the evidence sought. See Rule 3A: 11(e). As a matter of fact, and contrary to the majority’s understanding of the record, the circuit court did not actually “order” the requested discovery. The July 11 order merely stated: “Motion for inspection and discovery — agreed upon by the Commonwealth and the defendant.”

Even under the informal procedure followed in this case, the prosecutor produced discovery materials two days before trial. The toxicological report inadvertently had not been included with the material furnished the prosecutor by the police department. When defense counsel inquired about the report, the prosecutor promptly located it and informed defense counsel of its contents by telephone the afternoon prior to trial. Immediately, defense counsel discussed the report with its author, a State toxicologist, who was present at trial to testify for the defendant.

Under these circumstances, I believe the trial judge properly refused to grant the continuance. Defendant’s last-minute disappointment was caused by his adoption of an informal, non-precise discovery procedure, not by any fault of the prosecutor, who acted in good faith throughout. A defendant should not be rewarded with a continuance of his trial when, as here, he has been lax in promptly obtaining documents on which to establish a possible defense.

Consequently, I would affirm the conviction.

CARRICO, C.J., and RUSSELL, J., join in dissent.