Hunter v. Com., 1692-90-3

• Decision Date: 16 February 1993
• Docket Number: No. 1692-90-3,1692-90-3
• Citation: 427 S.E.2d 197,15 Va.App. 717
• Court: Virginia Court of Appeals
• Parties: Gary Patrick HUNTER v. COMMONWEALTH of Virginia. Record

Page 197

427 S.E.2d 197

15 Va.App. 717

Gary Patrick HUNTER v. COMMONWEALTH of Virginia.

Record No. 1692-90-3.

Court of Appeals of Virginia.

Feb. 16, 1993.

[15 Va.App. 719] Michael T. Garrett, Amherst (Pendleton, Martin, Henderson, & Garrett, on briefs), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Margaret Ann B. Walker, Asst. Atty. Gen., on briefs), for appellee.

Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLEMAN, MOON, WILLIS, ELDER, BRAY and FITZPATRICK, JJ.

UPON A HEARING EN BANC ¹

COLEMAN, Judge.

Code § 19.2-128(B) provides that "[a]ny person charged with a felony offense who willfully fails to appear before any court as required" is guilty of a Class 6 felony. Gary Patrick Hunter was convicted in a jury trial of willfully failing to appear at his felony trial in the Amherst County Circuit Court. He challenges the conviction on grounds that (1) the evidence is insufficient to show that his failure to appear was willful; (2) the trial court erred by admitting into evidence his bail bond document, which showed that the felony for which he was to have been tried was robbery; and (3) the trial court erred in not declaring a mistrial based on the trial judge's telling the venire in his introductory remarks that robbery of an ABC store was the felony for which Hunter was to have been tried on the date he allegedly failed to appear. We find that the evidence is sufficient to support the conviction, and we uphold the trial court's rulings in admitting the bond document and in denying the motion for a mistrial.

Gary Patrick Hunter was charged with robbery of an ABC store in Amherst County, Virginia. He was scheduled to be tried for the robbery in Amherst County Circuit Court on May 8, 1989. Pursuant to an order entered on April 17, 1989, the trial was continued to June 9, 1989, at 9:30 a.m. On May 10, 1989, Hunter executed a "Conditions of Release, Recognizance, and Bond," posting a $50,000 bail bond, in which he promised to appear for trial on the robbery charges on June 9, 1989, at 9:30 a.m. in the Amherst County Circuit Court. Hunter listed his address on the bond document as 3428 Forest Brook Road, Lynchburg, Virginia 24501.

James H. Massie III was appointed as the attorney to represent Hunter on the Amherst County robbery charge. Hunter's case was continued from June 9, 1989, to August 22, 1989, at 9:30 a.m., and on August 22, 1989, the case was continued to September 27, 1989, at 9:30 a.m. The Amherst County Circuit Court entered orders continuing the case until the dates certain. The last continuance order, which set Hunter's trial for September 27, 1989, also directed the clerk to issue a summons for Hunter. The summons was issued on September 1, 1989, but when the deputy attempted to serve it at the address that Hunter provided, Hunter was not found. After several unsuccessful attempts to serve process on Hunter at that address, the summons was returned on September 25, 1989, without Hunter having been served.

Hunter did not appear for trial on September 27, 1989, in the Amherst County Circuit Court. Thereafter, the Amherst County grand jury indicted Hunter for willfully and feloniously failing to appear for trial in violation of Code § 19.2-128(B). In late January, 1990, Hunter was arrested and returned to Virginia after waiving extradition from Columbus, Ohio.

At Hunter's jury trial, the trial judge, as part of his introductory remarks explaining the nature of the case to the venire, stated: "Mr. Hunter was charged with a robbery of an ABC store" when he allegedly failed to appear for trial. Defense counsel moved for a mistrial on the ground that identifying the felony for which Hunter failed to appear had little or no probative value and prejudiced him before the jury. The trial judge denied the motion. Thereafter, defense counsel and the Commonwealth's attorney stipulated that Hunter "was charged with a felony which was to be tried in Amherst Circuit Court on September 27, 1989." Later in the trial, the Commonwealth sought to introduce Hunter's bail bond papers. Among other facts, the bond disclosed the nature of the charge as robbery, specified the amount of the bond, and contained the condition of the bond that Hunter promised to appear for trial on June 9, 1989, and "at all times and places ... to which this case may be rescheduled or continued." Defense counsel objected on the ground that the bond papers identified the charge as "one (1) charge of robbery a felony." He argued that identification of the offense was irrelevant and prejudicial because the parties had stipulated that Hunter was to be tried for a felony. The court overruled the objection and admitted the bond into evidence. Hunter was convicted and sentenced to twelve months in jail in accordance with the jury verdict.

I.

Hunter contends that the evidence was insufficient to support his conviction because the Commonwealth failed to prove beyond a reasonable doubt that he "willfully fail[ed] to appear," an essential element of the offense under Code § 19.2-128(B). The evidence presented was sufficient to permit the jury to infer that Hunter willfully failed to appear at his felony trial in Amherst County Circuit Court. Thus, we reject his contention.

"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom." Traverso v. Commonwealth, 6 Va.App. 172, 176, 366 S.E.2d 719, 721 (1988). A jury's verdict may not be overturned on appeal "unless it is plainly wrong or without evidence to support it." Id.; Code § 8.01-680.

When a criminal offense consists of an act and a particular mens rea, both the act and mens rea are independent and necessary elements of the crime that the Commonwealth must prove beyond a reasonable doubt. Harrell v. Commonwealth, 11 Va.App. 1, 6-7, 396 S.E.2d 680, 682 (1990) (citing Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345 (1955)). Code § 19.2-128(B) requires that the Commonwealth prove that the accused "willfully" failed to appear at trial. " '[The] correct application [of willfully] in a particular case will generally depend upon the character of the act involved and the attending circumstances.' " Lambert v. Commonwealth, 6 Va.App. 360, 363, 367 S.E.2d 745, 746 (1988) (quoting Lynch v. Commonwealth, 131 Va. 762, 766, 109 S.E. 427, 428 (1921)). "Willfully," as used in Code § 19.2-128(B), has the customary meaning that the act must have been done "purposely, intentionally, or designedly."

The evidence presented against Hunter supports the finding that he willfully failed to appear at his scheduled felony trial in Amherst County. " 'Any failure to appear after notice of the appearance date [is] prima facie evidence that such failure to appear [was] willful.' " Trice v. United States, 525 A.2d 176, 179 (D.C.1987) (quoting D.C.Code § 23-1327(b)). When the government proves that an accused received timely notice of when and where to appear for trial and thereafter does not appear on the date or place specified, the fact finder may infer that the failure to appear was willful. Smith v. United States, 583 A.2d 975, 979 (D.C.1990); Raymond v. United States, 396 A.2d 975, 978 (D.C.1979).

In the Commonwealth's case against Hunter, the bail bond document that he signed contained his written promise to appear at trial on June 9, 1989, and to appear "at all times and places and before any court or judge to which this case may be rescheduled, continued, [or] transferred." The Commonwealth's evidence proved that the trial court entered an order on May 25, 1989, continuing the case from June 9, 1989, until August 22, 1989, and an order on June 13, 1989, continuing the case until September 27, 1989, at 9:30 a.m. Hunter had notice, as evidenced by the bond he executed, that his original trial date was June 9, 1989. According to the terms of his bond, he promised to appear on any date to which his case was rescheduled and continued. The trial court duly entered orders of record in the Clerk's Office of the Amherst Circuit Court. The orders continued and rescheduled his case to dates certain. An accused who is given notice of the original trial date is charged with notice of those dates to which his or her case is expressly continued when such action is duly recorded in the order of the court. See generally Smith v. United States, 583 A.2d 975 (D.C.1990) (defendant who failed to appear charged with notice of courtroom change where it is shown that notice of such change was, in fact, posted in accordance with routine practice; reversed because evidence failed to prove that notice of courtroom change posted or that defendant knew of change).

Not only was Hunter charged with knowledge of the trial dates noted in the court's orders, which are public records, but he also had an attorney of record in the case. The attorney-client relationship presumes that attorney and client, as servant and master, will communicate about all the important stages of the client's upcoming trial. Notice to Hunter's attorney of record of the trial date is evidence that the notice was given to Hunter. See Virginia Dep't of Corrections. v. Crowley, 227 Va. 254, 263-64, 316 S.E.2d 439, 444 (1984) (citing Code § 8.01-314, which states that notice to counsel of record by entry of an order "shall have the same effect as if service had been made upon such party personally."). Therefore, if the attorney had actual notice of the client's trial date, the fact finder may infer from that evidence that the client also had actual notice of the trial date. State v. Blackbird, 187 Mont. 270, 609 P.2d 708, 710 (1980) (error to instruct jury that notice to attorney conclusive of notice to client; jury may only consider as a fact for permissible inference). Thus, because Hunter's attorney had notice of the trial...