James Edward Handy, Jr. v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Clements
Argued by teleconference
JAMES EDWARD HANDY, JR.
MEMORANDUM OPINION * BY
v. Record No. 2764-00-1 JUDGE ROBERT P. FRANK
DECEMBER 4, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, III, Judge
James R. Benkahla for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
James Edward Handy, Jr. (appellant) was convicted after a
bench trial of petit larceny, third or subsequent offense, in
violation of Code § 18.2-104. On appeal, he contends the trial
court erred in denying his motion for appointment of a new
attorney and in failing to grant him a continuance. For the
reasons stated, we affirm the conviction.
BACKGROUND
On the day set for trial in circuit court, trial counsel
indicated to the court that he was ready for trial, but appellant
said he was not ready. Appellant explained his attorney had not
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
subpoenaed several witnesses. Those witnesses were not present in
the courtroom.
Appellant said he had "the police report" (apparently a James
City County Sheriff's report), but that report did not indicate
the name of the "other defendant" or the other "civilian" witness
who "chased us." The information on these witnesses allegedly was
in the York County Sheriff's report, not the James City County
Sheriff's report. Appellant told the trial court that he had told
counsel "from the beginning" he needed the York County report and
could not proceed without it.
Appellant said he could not proceed without the two absent
witnesses. Both witnesses allegedly were at the store where the
larceny occurred. One of the witnesses, the "other defendant,"
was in a car outside the store when the incident took place. The
other witness, Mr. Braine, allegedly chased appellant out of the
store.
The Commonwealth's attorney indicated no other person was
charged with this offense and expressed grave doubt as to the
existence of Braine.
The trial court then said:
I'm going to do this, Mr. Bell, if it's
agreeable with your client. I'll let the
Commonwealth put their case on. I'll give
you an opportunity to put your evidence on
and then I'll give you a continuance if
that's what you want, to obtain any
additional witnesses you may need.
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This resolution did not fully satisfy appellant. He
complained, "Every time I talk to [counsel] he goes straight to
the Commonwealth Attorney . . . . Now he's telling them that I
made up some crazy story." The Commonwealth's attorney responded
that defense counsel had contacted his office to determine the
names of the missing witnesses. The Commonwealth's attorney
denied any attorney-client privilege was revealed during their
conversations.
Appellant proceeded to explain why he needed Braine as a
witness. He said Braine, the owner of Rip's Food Store, chased
him out of the Windy Hill Miller Mart and in his car. Appellant
also said Braine "had what appeared to be a pistol." Appellant
claimed he dropped the stolen merchandise in the store due to
Braine's behavior; however, still photographs taken from a video
surveillance tape showed appellant walking out of the store with
several cigarette cartons.
Appellant explained to the trial court, "[Braine] did, in
fact, chase me out of that store; and he did, in fact, chase us
down for 15 minutes. I didn't know who he was. I thought he was
trying to kill us."
At that point, counsel asked to withdraw from the case,
saying, "There's a conflict of interest that is becoming more
apparent to me." The Commonwealth opposed the motion.
The trial court continued to ask appellant how Braine would
be a material witness, given the chase occurred after the theft.
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Appellant explained the witness followed him into the store. The
"other defendant," who was sitting in the car, "started beeping
the horn and I dropped what I had and ran out to the car to try to
get away from [Braine]." Appellant proffered no further reason
why Braine was a material witness. Significantly, appellant never
testified that, until he was chased out of the store, he intended
to pay for the cigarettes.
Contrary to appellant's story, the videotape showed no one
chasing appellant, nor anyone even approaching him. Additionally,
the store clerk testified she saw appellant "leaving the store,
and he had approximately ten cartons of Newport cigarettes, and
ran out of the store" without paying for the cartons. She saw him
throw the cartons into the back seat of the car. He then got into
the front passenger seat of the car and drove away.
The police recovered five cartons and six individual packs of
Newport cigarettes from the back seat of appellant's car. The
photograph developed from the videotape was not clear enough to
determine the exact number of cartons appellant carried out of the
store.
The court inquired if appellant wanted his attorney relieved
and to proceed by himself. Appellant responded, "Your Honor, what
I'm saying is I want Mr. Bell relieved as counsel, and no, I do
not want to proceed as my own counsel but if that is my only
alternative that's what I'll have to do."
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After a short colloquy with the trial court, appellant
indicated he wished to waive counsel.1 The court then allowed
counsel to withdraw. Appellant pled not guilty.
After the Commonwealth rested, appellant testified that, as
Braine walked in, appellant ran out taking two cartons of
cigarettes. He claimed he dropped some cartons and jumped into
the waiting car. When the trial court asked appellant did he take
the cigarettes from the store, appellant admitted he did. When
asked by the court, "What's your defense? Why didn't you pay for
them?" appellant responded, "Because I stole them."
Appellant did not ask for a continuance to find the two
witnesses after the Commonwealth rested or after he testified.
ANALYSIS
I. APPOINTMENT OF NEW COUNSEL
First, appellant argues the trial court abused its discretion
when denying his request for appointment of new counsel. When
reviewing a motion for substitution of counsel, "broad discretion
is afforded the trial court in determining whether a continuance
to obtain counsel should be granted. '[O]nly an unreasoning and
arbitrary "insistence upon expeditiousness in the face of a
justifiable request for delay" violates the right to the
assistance of counsel.'" Bolden v. Commonwealth, 11 Va. App. 187,
1
Appellant, on appeal, does not challenge the fact that he
voluntarily waived his right to counsel.
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191, 397 S.E.2d 534, 536 (1990) (quoting Morris v. Slappy, 461
U.S. 1, 11-12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964))).
Appellant must show good cause for the replacement of
counsel. See Kinard v. Commonwealth, 16 Va. App. 524, 526, 431
S.E.2d 84, 86 (1993). See also United States v. Gallop, 838 F.2d
105, 108 (4th Cir. 1988) ("An indigent defendant, moreover, has
no right to have a particular lawyer represent him and can
demand a different appointed lawyer only with good cause."). The
record must "disclose [a] sound basis for dissatisfaction with
[counsel's] services." Kinard, 16 Va. App. at 527, 431 S.E.2d at
86.
The trial court did not abuse its discretion in denying
appellant's request for new counsel. While appellant alleged his
attorney did not properly investigate and find two witnesses, the
record fails to disclose any reason why counsel should have
investigated these witnesses.
"[A] particular decision not to investigate
must be directly assessed for reasonableness
in all the circumstances, applying a heavy
measure of deference to counsel's judgments."
Strickland [v. Washington, 466 U.S. 668, 691
(1984)]. Indeed, "when a defendant has
given counsel reason to believe that pursuing
certain investigations would be fruitless or
even harmful, counsel's failure to pursue
those investigations may not later be
challenged as unreasonable." Id.
Murray v. Griffith, 243 Va. 384, 389, 416 S.E.2d 219, 221 (1992).
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Braine allegedly followed appellant out of the store and then
followed him after he got into the car. A high-speed chase
ensued, ending with an accident and the arrest of appellant in
York County.
The "other defendant" may have driven the getaway car. He
was not in the store when the cigarettes were stolen. Appellant
did not know his full name.
Nothing in the record suggests the "other defendant" or
Braine could have provided any exculpatory evidence. Counsel had
no reason to investigate these witnesses, who were more likely to
inculpate his client than to help acquit him. None of this
testimony would have assisted appellant in his defense; therefore,
counsel had no reason to investigate these witnesses.
As appellant did not disclose a sound basis for
dissatisfaction with his attorney, the trial court did not abuse
its discretion is refusing the motion for appointment of new
counsel.
II. REQUEST FOR A CONTINUANCE
Appellant also argues the trial court abused its discretion
in failing to grant a continuance to find the witnesses.
The decision whether to grant a continuance
is a matter within the sound discretion of
the trial court. See Lebedun v.
Commonwealth, 27 Va. App. 697, 712, 501
S.E.2d 427, 434 (1998); Price v.
Commonwealth, 24 Va. App. 785, 788, 485
S.E.2d 655, 657 (1997). The Virginia Supreme
Court has established a two-pronged test for
determining whether a trial court's denial of
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a continuance request is reversible error.
Under this test, we may reverse a trial
court's denial of a motion for a continuance
only if it appears from the record: (1) that
the court abused its discretion and (2) that
the movant was prejudiced by the court's
decision. See Cardwell v. Commonwealth, 248
Va. 501, 509, 450 S.E.2d 146, 151 (1994).
Silcox v. Commonwealth, 32 Va. App. 509, 513, 528 S.E.2d 744, 746
(2000).
Neither prong of the test is satisfied here. First, the
trial court told appellant that he could request a continuance
after the Commonwealth presented its case. This procedure was
reasonable and not objectionable to either party. Appellant,
however, did not request a continuance at that time. The court
did not abuse its discretion by failing to allow a continuance
when appellant failed to ask for one at the appropriate time.
Second, appellant was not prejudiced. This Court cannot
presume prejudice, but must find it in the record of the case.
See Lowery v. Commonwealth, 9 Va. App. 304, 307, 387 S.E.2d 508,
510 (1990). This record contains no evidence of prejudice.
Appellant confessed to the crime when he testified. He
admitted he did not pay for the cigarettes because he was stealing
them. The photographs of him taking the merchandise out of the
store, as well as the clerk's and the officer's testimony,
conclusively prove appellant's guilt.
Appellant never proffered any statement from the "other
defendant" or Braine that would have minimized his culpability,
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especially in light of the overwhelming evidence of his guilt.
Id. at 308, 387 S.E.2d at 510.
For these reasons, we hold the trial court did not abuse its
discretion in denying appellant's pretrial motions for new counsel
and a continuance, and we affirm appellant's conviction.
Affirmed.
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