William James Buchanan v. Commonwealth ( 1996 )

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
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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
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defendant's convictions.
Affirmed.
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