CLARENCE JAMES LOMAX v. COMMONWEALTH OF VIRGINIA
Record No. 831938
Supreme Court of Virginia
September 7, 1984
Richmond. Present: All the Justices.
Linwood T. Wells, Jr., Assistant Attorney General (Gerald L. Baliles, Attorney General, on brief), for appellee.
STEPHENSON, J., delivered the opinion of the Court.
The sole question in this appeal is whether the trial court erred in refusing to grant the defendant‘s motion for a continuance.
Clarence James Lomax was indicted for the murder of Muriel Johnson. A jury convicted him of the lesser-included offense of involuntary manslaughter and fixed his punishment at 10 years in the penitentiary. The court sentenced Lomax in accordance with the verdict.
On July 11, 1983, mоre than three weeks before trial, Lomax filed a discovery motion pursuant to
The Commonwealth did not produce any discovery materials until August 1, 1983, two days prior to trial. The materials pro-
On the morning of trial, August 3, defense сounsel moved for a continuance. He claimed he needed more time to consult with experts who could determine the effect that such a quantity of Preludin would have on an individual. Counsel advised the court that after learning of the toxicological report, he was informed by a State toxicologist that the level of Preludin in the victim‘s blood was ten to thirty times the prescribed dosage. The trial court denied the continuance motion but made arrangements to havе the toxicologist present to testify at trial.
At trial, Lomax testified that he and Johnson became embroiled in an argument concerning his objection to her use of his name in illegal drug sales. Johnson pulled a pistol from her blue jeans and pointed it at Lomax. During a struggle for the pistol, Johnson was fatally shot. The defendant tеstified that Johnson was “high” at the time of the argument. He maintained that she was the aggressor and he acted in self-defense.
A State toxicologist, called as a defense witness, testified that he examined the victim‘s blood and urine for the presence of alcohol and drugs. He reported that Johnson‘s blood contained .02 percent of alcohol, and both her blood and urine contained morphine and Preludin. Her blood contained 3.5 milligrams per liter of Preludin. The toxicоlogist testified that the victim had “ten to thirty times the prescribed dosage” of Preludin in her blood and urine.
The toxicologist also stated that moderate to high levels оf Preludin can cause an individual to become assertive and aggressive. The court asked the witness what percentage of people using Preludin became aggressive. When the witness stated that he did not know, the court sua sponte struck his testimony respecting the drug‘s effect, holding that it was “speculative.”2
In Cox, decided after the trial court‘s ruling in the presеnt case, the accused did not receive certain bank records which had been ordered produced pursuant to a subpoena duces tecum. 227 Va. at 326, 315 S.E.2d at 229. Three days before the scheduled trial date, the defendant moved for a continuance, claiming the records were material to her defensе. The court denied the motion, and we reversed, stating that “all relevant facts must be available to both the prosecution and the defense in order to preserve” the integrity of the criminal justice system. Id. at 328, 315 S.E.2d at 230.
In Gilchrist, a murder case, also decided after the trial court‘s ruling in the present case, the accused obtained a discovery order similar to the one in the present case. 227 Va. at 543, 317 S.E.2d at 785. The Commonwealth disclosed some materials on the day before trial, produced some for the first time at trial, and never produced other materials. Gilchrist unsuccessfully sought a continuance. Concluding that he had been denied due proсess, we reversed. We observed that “the defendant was denied the right ‘to call for evidence in his favor,’ including ‘the right to prepare for trial and to ascertain the truth.‘” Id. at 547, 317 S.E.2d at 788 (quoting Bobo v. Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215 (1948)).
Our reasoning in Cox and Gilchrist applies with equal force in the present case. Lomax contends that the victim threatened him with a gun and he acted in self-defense. He described her as being “high” on drugs. The toxicological report, received just hours before trial, established that when the victim died her blood contained an excеssive amount of Preludin. Moreover, the toxicologist‘s stricken testimony indicated that this could cause aggres-
When a court orders discovery pursuant to
Therefore, we will reverse the judgment of the trial court and remand the case for a new trial.
Reversed and remanded.
COMPTON, J., dissenting.
In my opinion, the trial court did not abuse its discretion in refusing to grant defendant‘s motion for a continuance.
Defendant‘s July 11, 1983 discovery motion, filed three weeks and two days before trial, did not sрecify a time by which the requested information should be produced. Indeed, the July 11 discovery order entered upon the motion did not fix a time for production оf the evidence sought. See
Even under the informal procedure followed in this case, the prosecutor produced discovery materials two days before trial. The toxicological report inаdvertently had not been included with the material furnished the prosecutor by the police department. When defense counsel inquired about the report, the prosecutor promptly located it and informed defense counsel of its contents by telephone the afternoon prior to trial. Immediately, defense counsel discussed the report with its author, a State toxicologist, who was present at trial to testify for the defendant.
Under these circumstances, I bеlieve the trial judge properly refused to grant the continuance. Defendant‘s last-minute disappointment was caused by his adoption of an informal, non-рrecise discovery procedure, not by any fault of the prosecutor, who acted
Consequently, I would affirm the conviction.
CARRICO, C.J., and RUSSELL, J., join in dissent.