Jeremy M. Vessels v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia
JEREMY M. VESSELS
MEMORANDUM OPINION * BY
v. Record No. 2285-99-2 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Donald M. Haddock, Jr. (Roberts, Ashby &
Parrish, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On March 18, 1999, the appellant, Jeremy Vessels, was
convicted of malicious wounding and the use of a firearm in the
commission of the malicious wounding. On appeal he alleges his
conviction should be reversed on the grounds that (1) the failure
to properly arraign him constituted a denial of his constitutional
right to be informed of the charges against him, and (2) the
variance between the information in the bill of particulars
provided by the Commonwealth and the evidence the Commonwealth
produced at trial prejudiced Vessels in his preparation for trial.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Because we find Vessels's appeal is procedurally barred under Rule
5A:18, we affirm.
BACKGROUND
Guided by well established principles, we review the
evidence in the light most favorable to the Commonwealth, the
party prevailing below. Juares v. Commonwealth, 26 Va. App.
154, 156, 493 S.E.2d 677, 678 (1997). On January 22, 1999,
Vessels was arraigned in a group during which the trial judge
informed the group of defendants that they had the right to have
their indictments read to them and that they could waive that
right. However, the judge never asked the defendants if they
wished to waive their right to the reading of the indictments
lodged against them, nor did he read the charges to the
defendants. At the arraignment, Vessels, through his attorney,
pled not guilty to the two charges against him.
The crimes with which Vessels was charged stemmed from a
shoot-out in an alley between two groups of people. During the
shoot-out, a bullet entered the side of Shirley Minor's home,
striking her in the leg. The evidence presented at trial showed
that Vessels had fired a handgun and that at least one member of
the opposing group was returning fire with a shotgun. Although
the police found holes from both a handgun and a shotgun on the
exterior of Minor's home, the shotgun holes did not completely
penetrate the side of the house. The police thus concluded that
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Minor had been shot with a handgun and that Vessels had been the
shooter.
Before the trial the Commonwealth filed a bill of
particulars. In the bill, the Commonwealth stated that "[s]everal
witnesses will testify that Jeremy Vessels was seen walking in the
direction of Mrs. Minor's home just minutes before she was shot"
and that "Mrs. Minor was shot with a shotgun." At the trial, the
Commonwealth presented witnesses who testified that they actually
saw Vessels in the alley. One witness testified that she actually
saw Vessels fire his gun, and another witness testified that she
saw Vessels reach into his pants to remove something. In
addition, the evidence demonstrated that Minor had been shot by a
handgun, not a shotgun, and that the shotgun was actually used by
the group firing at Vessels.
Thus, the bill of particulars varied from the evidence
presented at trial in that it misstated the type of gun used to
commit the crime and it understated what the witnesses had seen
and would testify to. Vessels alleges that he was prejudiced by
this variance in that the bill of particulars misled him in his
preparation for trial.
ANALYSIS
The Commonwealth alleges that both of Vessels's claims are
barred under Rule 5A:18 because he failed to raise either of the
issues at any of the proceedings below. We agree.
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Rule 5A:18 provides, in relevant part, "[n]o ruling of the
trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds therefor
at the time of the ruling, except for good cause shown or to
enable the Court of Appeals to attain the ends of justice."
At no point during any of the proceedings below did Vessels
raise either of the issues he alleges here on appeal. These
issues were therefore not properly preserved for appeal. Rule
5A:18.
Furthermore, Vessels has failed to show good cause for not
previously raising these objections and as the record fails to
affirmatively disclose that a miscarriage of justice has occurred,
we decline to invoke the "ends of justice" exception to Rule
5A:18. See Reed v. Commonwealth, 6 Va. App. 65, 70, 366 S.E.2d
274, 277 (1988) ("The 'ends of justice' provision is a narrow one
that allows consideration when the record affirmatively shows that
a miscarriage of justice has occurred.").
When the court informed Vessels of his rights and asked
whether he had discussed the charges with his attorney and
understood the charges against him, Vessels answered in the
affirmative. Vessels then voluntarily entered a not guilty plea.
We therefore find that a miscarriage of justice has not occurred
and decline to invoke the "ends of justice" exception as to this
issue.
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We likewise find that the "ends of justice" exception may not
be invoked with respect to Vessels's second point of error, which
is based on an alleged variation between the bill of particulars
and the evidence presented at trial. The variances were not
substantial. Vessels was charged with maliciously wounding Minor,
and although the bill of particulars specified that Minor had been
shot with a shotgun, rather than a handgun, a variance concerning
the weapon used in the charged crime is not material. Ridgeway v.
Hutto, 474 F.2d 22 (8th Cir. 1973). Additionally, the
Commonwealth is not required to set forth its whole case and all
of its evidence in a bill of particulars. Here, the Commonwealth
informed Vessels that it had witnesses who could place him at the
scene of the crime. Although the testimony of the witnesses was
more detailed than the information contained in the bill, the bill
informed him of the nature of the charges against him. Nothing
more was required under Virginia law. See Strickler v.
Commonwealth, 241 Va. 482, 490, 404 S.E.2d 227, 233 (1991) (the
purpose of the indictment and bill of particulars is to make the
defendant aware of the "nature and character" of the charges
against him). In addition, the record does not show that Vessels
was surprised by the Commonwealth's variant proof, nor did he
request a continuance after hearing the variant proof for the
purpose of preparing a new defense. Ridgeway, 474 F.2d at 24.
In sum, we find that Vessels's two claims are barred under
Rule 5A:18 because he failed to raise these issues prior to his
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appeal, and there is no reason to invoke the "ends of justice"
exception in this case as the record fails to show that a
miscarriage of justice has occurred. Accordingly, we affirm the
judgment.
Affirmed.
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