Amen Hotep JOHNSON v. COMMONWEALTH of Virginia.
Record No. 3143-06-1
Court of Appeals of Virginia, Chesapeake
March 11, 2008
657 S.E.2d 812
Affirmed in part, reversed in part, and remanded.
657 S.E.2d 812
Amen Hotep JOHNSON
v.
COMMONWEALTH of Virginia.
Record No. 3143-06-1.
Court of Appeals of Virginia,
Chesapeake.
March 11, 2008.
Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: HUMPHREYS, CLEMENTS and HALEY, JJ.
HUMPHREYS, Judge.
Amen Hotep Johnson (“Johnson“) appeals his conviction for possession of a firearm by a convicted felon, in violation of
The facts of this matter are not in dispute. On September 7, 2005, a grand jury indicted Johnson for possession of a firearm after having been convicted of a felony, in violation of
On May 9, 2006, at the outset of the suppression hearing, the Commonwealth amended Johnson‘s indictment to allege that Johnson had previously been convicted of a felony “or adjudicated delinquent of an act which would be a violent felony if committed by an adult.” Johnson asserted that he was entitled to a continuance because of the аmendment to the indictment. After denying Johnson‘s suppression motion, the trial court granted Johnson‘s continuance motion, primarily because of the amendment to his indictment. The trial court ruled that the evidence received at the suppression hearing would be admissible at trial.3 Thus, the trial court continued the case until June 20, 2006. Judge Everett Martin, the judge presiding, ordered that the case remain on his docket.
On June 20, 2006, by joint motion of the parties, the trial court continued the case until July 12, 2006, this time so that the parties could “keep [the casе] on Judge Martin‘s [d]ocket,”
The trial court denied this motion, stating that it “never believed that [a] defendant had a right to hire an attorney on the morning of trial,” and declined to continue the case. Thus, the case proceeded with Eichler as Johnson‘s court-appointed attorney. The trial court convicted Johnson, and sentenced him to five years in the Virginia State Penitentiary. This appeal followed.
ANALYSIS
Johnson argues on appeal that the trial court violated his right to counsel under the Sixth Amendment to the United States Constitution by denying his motions for substitution of counsel and a сontinuance.5 We disagree.
“A trial judge has broad discretion in determining whether a continuance to obtain сounsel is necessary in order to preserve the accused‘s right to assistance of counsel.” Feigley, 16 Va. App. at 721, 432 S.E.2d at 523. “[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.” Paris, 9 Va. App. at 460, 389 S.E.2d at 722 (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983)). Furthermore, “[i]n order to justify a continuance by the last minute change of counsel, exceptional circumstances must exist.” Feigley, 16 Va. App. at 721, 432 S.E.2d at 523 (quoting Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 320 (1977)). However, “once a defendant is erroneously denied his right to counsel of choice, ‘no additional showing of prejudice is required to make the violation complete.‘” London v. Commonwealth, 49 Va. App. 230, 239, 638 S.E.2d 721, 725 (2006) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 145, 126
In Feigley, we held that a request for a continuance to obtain private counsel was not a “justifiable request for a delay” when the defendant made the request on the day of trial, stating only that he had a “basic feeling” that a privately retained attorney would represent him better than a court-appointed attorney. 16 Va. App. at 721, 432 S.E.2d at 523 (quoting Paris, 9 Va. App. at 461, 389 S.E.2d at 722).
In this case, Johnson‘s family had “come into some money,” and had retained St. Clair “about a week [earlier]” after several continuances and a suppressiоn hearing. Thus, Johnson‘s family had actually hired an attorney, as opposed to the defendant in Feigley, who merely wanted to hire one. Nonetheless, for the following reasons, we hold that this does not amount to an “exceptional circumstance” that warrants the last minute continuation of a case.
In London, which Johnson cites, we reversed a trial court‘s denial of the defendant‘s continuance motion when the defendant‘s family retained a private attorney sixteen days before trial, the retained attorney notified the trial cоurt twelve days before trial, and the trial court had granted no prior continuances at the defendant‘s request. 49 Va. App. at 239, 638 S.E.2d at 725. London, unlike this case, did not involve a last minute request for a continuance, and the situation in that case did not require “exceptional circumstances.”
In this case, although Johnson‘s family retained St. Clair a week before trial, neither Johnson nor St. Clair advised the trial court of this fact until the morning of trial. Furthermore, the case had been continued five times before Johnson asked the trial court to substitute St. Clair as his counsel, threе times at Johnson‘s request, and once upon joint motion of Johnson and the Commonwealth. Thus, London is distinguishable on its facts from the case before us. Under the circumstances of this case, the trial court‘s decision was neither unreasoning nor arbitrary and we hold that it did not err in denying Johnson‘s request to substitute St. Clair as his
Johnson also relies on Gonzalez-Lopez, in which the United States Supreme Court held that “[n]o additional showing of prejudice is required to make the [Sixth Amendment] violation complete” after a trial court erroneously denies a defendant his right to counsel of choice. 126 S.Ct. at 2562 (internal quotations omitted). However, Gonzalez-Lopez cleаrly applies only to situations where a trial court erroneously denies a defendant his right to counsel of his choice. Having held that the trial court did not err by denying Johnson‘s continuance and substitution of counsel, we also hold that Gonzalez-Lopez has no application to this case.
CONCLUSION
In summary, several countervailing circumstances appear in the record before us that offset Johnson‘s last minute request to assert his Sixth Amendment right to an attorney of his choosing. These circumstances include the five prior continuances, the week-long delay until the morning of trial in informing the trial court and thе Commonwealth‘s attorney that new counsel had been retained, and the fact that witnesses were present and both the Commonwealth and John-
Affirmed.
HALEY, J., dissenting.
I respectfully dissent because I believe the majority (1) fails to meaningfully distinguish our decision in London v. Commonwealth, 49 Va. App. 230, 638 S.E.2d 721 (2006), and (2) incorrectly concludes that consideration of
ANALYSIS
(1)
“An accused‘s right to be represented by counsel is a fundamental component of our criminal justice system.” Paris v. Commonwealth, 9 Va. App. 454, 459, 389 S.E.2d 718, 721 (1990) (quoting United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 2043, 80 L.Ed.2d 657 (1984)).
The right to counsel includes “not only an indigent‘s right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing.”
London, 49 Va. App. at 235-36, 638 S.E.2d at 723-24 (quoting Paris, 9 Va. App. at 460, 389 S.E.2d at 721). An accused‘s right to be represented by retained counsel is limited by the countervailing state interest in orderly and expeditious prose-
“‘[A]lthough granting or denying a continuance is within the discretion of the trial court, it must exercise its discretion with due regard to the provisions of the Bill of Rights, which secure to one accused of a crime a fair and impartial trial....‘” London, 49 Va. App. at 237, 638 S.E.2d at 724 (quoting Gilchrist v. Commonwealth, 227 Va. 540, 546, 317 S.E.2d 784, 787 (1984)).
“In determining whether the trial court properly exercised its discretionary powers, we look to the diligence of the moving party.... As well, we must determine if there is anything ‘in the circumstances to warrant the conclusion that the real purpose in moving for a continuance is to delay or evade trial and not to prepare for it.‘”
Carter v. Commonwealth, 39 Va. App. 735, 745, 576 S.E.2d 773, 778 (2003) (quoting Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399 (1990) (citation omitted)). “When a court has no reason to bеlieve that a motion for a continuance is spurious, it should seriously consider whether a failure to grant the continuance may ‘imperil the just determination of the cause.‘” Gilchrist, 227 Va. at 546, 317 S.E.2d at 787 (quoting Myers v. Trice, 86 Va. 835, 842, 11 S.E. 428, 430 (1890)). “‘In order to justify a continuance by the last minute change in counsel, exceptional circumstances must exist.‘”
In London, the defendant‘s mother retained counsel to represent him sixteen days before the scheduled trial date. London, 49 Va. App. at 233, 638 S.E.2d at 722. Five days before trial, the law partner of defendant‘s retained counsel appeared in the trial court and requested thе substitution of the defendant‘s court-appointed attorney with retained counsel. Id. The law partner also moved for a continuance because appellant‘s retained counsel was on vacation and would not return until the next week. Id. The Commonwealth‘s attorney objected to the motions because three “very important” witnesses were traveling great distances to attend the trial on the previously scheduled date. Id. at 234, 638 S.E.2d at 723. The trial court denied both motions, and this Court reversed the defendant‘s conviction, hоlding the trial court abused its discretion in denying the motions for continuance and substitution of counsel pursuant to an accused‘s Sixth Amendment right to counsel and the statutory requirements of
The majority attempts to distinguish this case from London, observing, in London, that the newly retained attorney hired by the defendant‘s mother notified the trial court of his intention to enter the case and seek a continuance twelve days before the trial. Therefore, the argument continues, the continuance requested in London was not a “last minute” continuance requiring “exceptional circumstances.” The problem with this argument is thаt appellant‘s Sixth Amendment right to counsel of his choice is not qualified by any state interest in avoiding “last minute” continuances. Rather, appellant‘s Sixth Amendment right is qualified only by the state interest in orderly and expeditious prosecutions. In short, it is not the time when the motion for a continuance is made that qualifies the Sixth Amendment right; it is the effect upon the orderly administration of justice if that motion be granted that generates the qualification. No cases suggest that an accused‘s Sixth Amendment right to counsel of his choice simply
When one compares the facts of London with the facts of this case while keeping the legally relevant state interest in mind, the majority‘s emphasis on the notice given by the defendant‘s new lawyer seems inappropriate. In London the attorney for the Commonwealth proffered that, “three ‘very important’ witnesses [were] traveling from great distances, including two from out of state, and that it would really inconvenience the Commonwealth....‘” London, 49 Va. App. at 233-34, 638 S.E.2d at 723. It seems unreasonable to decide that the absence of advanced notice in this case meaningfully distinguishes this case from London. Even though the notice that the defendant‘s new attorney gave to the trial court seems to have done little or nothing to lessen the adverse impact the requested continuance would have had on the
In this case, the attorney for the Commonwealth concеded that a continuance would not affect her ability to present her case, “Your Honor, we have one witness. So that in itself is not an issue about continuing to the Commonwealth.” The parties’ stipulation that the prior testimony of Officer Dean would be part of the evidence at appellant‘s trial also suggests that the impact of a short continuance upon the prosecution‘s case would be de minimis. Indeed, as a result of this stipulation it is far from clear that the Commonwealth needed to call any witnesses at all. With thе exception of a few new questions about the physical characteristics of the handgun he recovered from appellant, all of the facts to which Officer Dean testified at trial were already in evidence because of the stipulation. Before trial the Commonwealth was missing prima facie evidence of only one element of the offense charged in the indictment: evidence that appellant was a convicted felon or a person previously adjudicated delinquent of an offense which would have been a felony if committed by an adult.
Whether or not appellant got his continuance, this trial was going to be exceptionally quick and easy for the Commonwealth. But even this fact would not be enough to overcome the deference we owe to the trial court unless Mr. St. Clair had a good reason for asking for a continuance. Otherwise criminal defendants accused of simple offenses might avoid trial indefinitely by waiving their rights to a jury and stipulat-
I also believe the majority is incorrect in suggesting its conclusion is supported by Feigley, 16 Va. App. 717, 432 S.E.2d 520. First, the majority overlooks language in London expressly suggesting that Feigley is no longer good law because Feigley affirmed the defendant‘s conviction at least in part because there was no evidence that court-appointed cоunsel was ineffective, an approach overruled by Gonzalez-Lopez. London, 49 Va. App. at 239, 638 S.E.2d at 725. Second, the defendant in Feigley, as the majority rightly concedes, requested a continuance on the eve of trial to look into hiring an attorney. Some criminal defendants will not hesitate to feign an interest in retained counsel for the sole purpose of postpon-
MR. EICHLER: The circumstances have changed. He‘s able and has hired counsel. I‘d point out that some of the other continuances were occasioned by the fact that the matter was misdocketed.
THE COURT: I understand that.
MR. EICHLER: They were not occasioned by actions on the part of the defendant.
THE COURT: You are exactly right.
Because of these comments by the trial court, I believe the majority exaggerates the degree to which the prior continuances of this case support the denial of appellant‘s continuance request.
Mr. St. Clair needed only a brief continuance to prepare for trial, and the impact of the requested continuance on the state‘s countervailing interest in an orderly and expeditious prosecution would have been negligible. Under these circumstances, I conclude that the trial court‘s denial of appellant‘s motion was “an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay....‘” Paris, 9 Va. App. at 461, 389 S.E.2d at 722 (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616 (1983)).
(2)
The majority does not explain why they believe the citations to the statute by appellant‘s brief were insufficient to “raise the issue on appeal.” Perhaps this conclusion is based upon a restricted view of the issues fairly raised by the “question presented,” as that term is used in Rules 5A:12 and 5A:20 of the Rules of the Supreme Court of Virginia, that is, because the appellant‘s brief did not list as a separate question presented the issue of whether the trial court‘s denial of appellant‘s motion for a continuаnce violated
More specifically, I also believe that adopting the majority‘s narrow view would be inconsistent with the way we viewed the scope of the question presented in London. Our question presented, according to appellant‘s brief is, “[w]hether the trial court abused its discretion and violated appellant‘s Sixth Amendment right to counsel when it refused to allow retained counsel to substitute in the case.” The question presented in London, according to this Court, was whether, “the trial court
I would hold that the trial court‘s denial of appellant‘s continuance request violated his Sixth Amendment right to counsel and
Notes
[When] the defendant undergoes a change of circumstances so that he is no longer indigent, the defendant shall thereupon obtain private counsel and shall forthwith advise the court of the change of circumstances. The court shall grant [a] reasonable continuance to allow counsel to be obtained and tо prepare for trial. When private counsel has been retained, appointed counsel shall forthwith be relieved of further responsibility and compensated for his services[.]
Johnson does not argue the applicability of this statute on appeal. The dissent notes that Johnson raises this statute on page 2 of his brief, and in his “table of authorities” as well. What the dissent neglects to mention is that this hardly constitutes an “argument,” since Johnson only references the statute on page 2 of his statement of facts, in which he simply states that Eichler brought this statute to the attention of the trial court. As a result of this, the statute appeared in Johnson‘s “table of authorities.”[A]ppellant‘s Sixth Amendment right to counsel of his choice is not qualified by any state interest in avoiding “last minute” continuances. Rather, appellant‘s Sixth Amendment right is qualified only by the state interest in orderly and expeditious prosecutions. In short, it is not the time when the motion for a continuance is made that qualifies the Sixth Amendment right; it is the effect upon the orderly administration of justice if that motion be granted that generates the qualification.... The language from Feigley and Shifflett cited by the majority is more sensibly understood to mean that a continuance to retain a lawyer on the eve of trial will rarely be appropriate because, at such a time, a continuance is much more likely to disrupt the Commonwealth‘s interest in an orderly and expeditious prosecution.
We agree with the dissent that a continuance to obtain a lawyer on the eve of trial “is much more likely to disrupt the Commonwealth‘s interest in an orderly and expeditious prosecution.” Here, the trial court apparently thought a further continuance would disrupt this interest. This is a valid concern, given the fact that the trial court had already continued the case five times.