Charles A. Edwards v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
CHARLES A. EDWARDS
MEMORANDUM OPINION * BY
v. Record No. 0469-00-1 JUDGE RICHARD S. BRAY
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Joseph Ryland Winston, Special Appellate
Counsel (Public Defender Commission, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
A jury convicted Charles A. Edwards (defendant) of first
degree murder and related use of a firearm, violations of Code
§§ 18.2-32 and -53.1, respectively. On appeal, defendant contends
the trial court erroneously severed his trial from that of a
codefendant and challenges the sufficiency of the evidence to
support the convictions. Finding no error, we affirm the trial
court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Prior to commencement of trial, defendant, by counsel, moved
for a continuance, complaining the court had postponed trial of
the codefendant, after previously ordering a joint trial over
defendant's objection, without notice to counsel. Defendant
maintained the resulting severance, confirmed by his counsel "less
than twenty-four hours from trial," required him to "completely
change strategy and to prepare for a separate trial." Following
argument of counsel, the court denied defendant's motion and
proceeded with trial. Thus, relying upon Rule 1:13, defendant
first contends the court erroneously failed to require endorsement
of counsel or notice with respect to the order continuing trial of
the codefendant.
Rule 1:13 provides, in pertinent part, that "[d]rafts of
orders and decrees shall be endorsed by counsel of record, or
reasonable notice of the time and place of presenting such drafts
together with copies thereof shall be served [on] all counsel of
record who have not endorsed them." However, "[c]ompliance with
this rule . . . may be modified or dispensed with by the court in
its discretion." Rule 1:13. When dispensing with endorsement or
notice pursuant to Rule 1:13,
a better practice would be for a trial court
to include a statement reflecting its
decision to exercise its discretion, [but,]
in the absence of such a statement, we
presume that a trial court exercised its
discretion . . . . Courts are presumed to
act in accordance with the law and orders of
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the court are entitled to a presumption of
regularity.
Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 (2001).
Accordingly, on the instant record, we must presume the court
exercised discretion in dispensing with both the endorsement and
notice requirements that attended the continuance order in issue.
The proper exercise of such discretion is strengthened by evidence
that the resulting severance comported with defendant's earlier
objection to a joint trial. Moreover, defendant failed to present
evidence, by proffer or otherwise, of any prejudice suffered by
him as a result of the alleged error.
II.
Defendant next challenges the sufficiency of the evidence to
support the convictions. In reviewing the sufficiency of the
evidence, we consider the record "in the light most favorable to
the Commonwealth, giving it all reasonable inferences fairly
deducible therefrom." Watkins v. Commonwealth, 26 Va. App. 335,
348, 494 S.E.2d 859, 866 (1998) (citation omitted).
[T]he fact finder is not required to
accept entirely either the Commonwealth's or
the defendant's account of the facts.
Similarly, the fact finder is not required
to believe all aspects of a defendant's
statement or testimony; the judge or jury
may reject that which it finds implausible,
but accept other parts which it finds
believable.
Pugilese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993) (citation omitted). Thus, "[t]he conclusions of the fact
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finder on issues of witness credibility 'may only be disturbed on
appeal if this Court finds that [the witness'] . . . testimony was
"inherently incredible, or so contrary to human experience as to
render it unworthy of belief."'" Moyer v. Commonwealth, 33 Va.
App. 8, 28, 531 S.E.2d 580, 590 (2000) (en banc) (citations
omitted). The judgment of the trial court will not be disturbed
unless plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
Defendant contends "the Commonwealth's entire case rests upon
the testimony of [Tyrone] 'Woo Woo' [Wallace]," evidence
characterized by defendant as "inherently incredible and unworthy
of belief." Properly viewed on appeal, Wallace's testimony
established that, while he spoke with the victim, Deontrace Ward,
at a Portsmouth gas station, defendant "come [sic] up in a . . .
four door gray car" and "asked [Ward] 'Can I talk to you for a
second.'" Ward responded, "Sure," and walked with defendant to
the gray car. While "they was talking[,] . . . one thing led to
another," and defendant "pull[ed] a gun out and put it to [Ward's]
head." Ward then "grabbed [defendant's] arm[,] . . . tossed him
across the car" and fled "through the traffic," with defendant
pursuing in the gray car. Wallace's recollection of these initial
events was corroborated in significant particulars by another
Commonwealth's witness, Francesca Dillard-Moore, although she was
unable to identify anyone involved in the confrontation.
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Wallace further testified that he "and a couple other guys
. . . ran behind [defendant and Ward] to see what happened" and
observed defendant and his nephew, Anthony Edwards, "jump[] out of
the car" and chase Ward on foot. When Ward "was caught" by the
two, both "started shooting" him with handguns.
An independent Commonwealth's witness, Kenneth Duke, also saw
two men exit a gray car and shoot Ward. The first man initially
shot Ward while he "was on his knees[,] . . . hands in the air,"
pleading "please don't shoot me . . ." and, again, after he "fell
over." When shot by the second man, Ward was already wounded and
"on the ground." Several additional witnesses, including a police
officer, also recounted the attack on Ward, substantially
corroborating the testimony of Wallace and Duke.
The fact finder heard and considered the testimony, including
evidence that tended to discredit Wallace, and believed his
recollection of events. When considered with the entire record,
we are unable to find such evidence either incredible or unworthy
of belief.
Defendant's reliance upon testimony at the sentencing hearing
in support of his challenge to Wallace's credibility is without
merit. Such evidence was not before the jury during the guilt
phase of the proceeding and, therefore, relevant only in
determining an appropriate sentence.
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Accordingly, the record clearly proved the subject
convictions beyond a reasonable doubt and, finding no error
otherwise, we affirm the trial court.
Affirmed.
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