Riner v. Com.

• Decision Date: 06 May 2003
• Docket Number: Record No. 2260-01-3.
• Parties: Charles Douglas RINER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

579 S.E.2d 671

40 Va. App. 440

Charles Douglas RINER v. COMMONWEALTH of Virginia.

Record No. 2260-01-3.

Court of Appeals of Virginia, Salem.

May 6, 2003.

Roger D. Groot, Buena Vista, (Thomas R. Scott, Jr.; School of Law, Washington & Lee University; Street Law Firm, Grundy, on briefs), for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Paul C. Galanides, Assistant Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and ELDER, J., and HODGES, S.J.

ELDER, J.

Charles Douglas Riner (appellant) appeals from his jury trial convictions for first degree murder, arson, and petit larceny. On appeal, he contends the trial court erroneously (1) denied a motion to change venue; (2) denied his motion for mistrial based on juror misconduct that resulted in dismissal of that juror; (3) allowed a private prosecutor with claimed conflicts of interest to participate in the trial; and (4) admitted the business records of a pawn shop as an exception to the hearsay rule without proof that the entrant was unavailable. To the extent these issues were preserved in the trial court and properly presented on appeal, we hold the trial court's rulings were not error. Thus, we affirm.

I. BACKGROUND

Appellant was charged with the instant offenses following the death of his wife (the victim) on August 12, 1998, in a fire in the house they shared with their three children. Appellant and the children escaped the fire without serious injury.

After the fire, members of the victim's family attempted to remove appellant as the administrator of the victim's estate and to obtain visitation with or custody of the children. When appellant failed to appear for estate proceedings on August 11, 1999, the court removed him as administrator of the estate and issued a capias for his appearance.

In November 1999, while the capias was still outstanding, appellant falsely told school officials he was taking the children to Pennsylvania to attend a funeral but eventually went with the children to Panama. While appellant was in Panama, a Wise County grand jury indicted him for arson and murder. He was arrested in Panama and returned to Virginia. The original indictment for arson and murder was later superseded by an indictment for arson, robbery and capital murder.

II. MOTION FOR CHANGE OF VENUE

Prior to trial, appellant moved for a change in venue, alleging that "exhaustive media coverage" within the previous year, including extensive "misinformation" about appellant and the case, left him "unable to receive a fair and impartial trial" in that jurisdiction. That information included but was not limited to the fact that appellant left the country with his children and traveled to Panama, which the media implied was flight to avoid prosecution. The trial court denied the motion.

After appellant was tried and convicted, he noted an appeal and timely filed a petition for appeal which did not include a challenge to the trial court's denial of his venue motion. Before this Court had acted on appellant's original petition, he filed a motion to enlarge the petition to include such a challenge. This Court granted appellant's motion to enlarge his petition and ultimately granted appellant's petition for appeal as to that assignment of error as well as the others addressed in this opinion.

A. JURISDICTION AND PRESERVATION FOR APPEAL

1. Petition for Appeal

"[A] petition for appeal must be filed . . . not more than 40 days after the filing of the record with the Court of Appeals. An extension of 30 days may be granted on motion in the discretion of the Court of Appeals in order to attain the ends of justice." Rule 5A:12(a). Rule 5A:3 provides that "[t]he times prescribed for filing the notice of appeal (Rule 5A:6 and 5A:11) [and] a petition for appeal (Rule 5A:12) . . . are mandatory." We have expressly held that the "forty-day time limit in Rule 5A:12(a) for filing a petition for appeal is a jurisdictional requirement" and that a petition not filed within this time must be dismissed unless a motion for an extension of time is "filed[] and granted[] before the original deadline has passed." Long v. Commonwealth, 7 Va.App. 503, 505-06, 375 S.E.2d 368, 369 (1988) (en banc); see Haywood v. Commonwealth, 15 Va.App. 297, 298, 423 S.E.2d 202, 203 (1992) (en banc)

. Thus, in order for this Court to acquire jurisdiction over a criminal appeal, the petitioner must file a timely petition.

Here, appellant timely filed a petition containing three of the four assignments of error presently before us on appeal. Thus, this Court acquired jurisdiction to consider those three assignments of error, and the Commonwealth received notice that appellant intended to challenge his conviction.

The Commonwealth nevertheless contends this Court had no authority to allow appellant to enlarge his petition for appeal and, thus, that we lack jurisdiction to consider appellant's challenge to the denial of the motion for a change of venue. The Commonwealth relies on both the established principle that the timely filing of a petition for appeal is jurisdictional and the provisions of Rule 5A:12(c), which state that "[t]he petition for appeal shall contain the questions presented" and that "[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals." The Commonwealth cites case law providing that, "[w]hen the word `shall' appears in a statute it is generally used in an imperative or mandatory sense." Schmidt v. City of Richmond, 206 Va. 211, 218, 142 S.E.2d 573, 578 (1965).

We reject the Commonwealth's argument. Although the timely filing of a petition for appeal is jurisdictional, nothing in the Rules of Court prevents us from exercising our inherent authority to allow the petitioner to present additional issues for our consideration when we have already acquired jurisdiction and have not yet acted on the original petition. See Yarbrough v. Commonwealth, 258 Va. 347, 361, 519 S.E.2d 602, 608 (1999)

(recognizing "inherent authority [of court] to administer cases on its docket"); cf. Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 440 (1998) (recognizing inherent authority of court, in divorce case, to reopen record to take additional evidence).

The mere fact that the rules state "[t]he petition for appeal shall contain the questions presented" does not compel the conclusion the Commonwealth advances. Rule 5A:12(c) (emphasis added). In Johnson v. Commonwealth, 1 Va.App. 510, 511-13, 339 S.E.2d 919, 920-21 (1986), for example, we interpreted the effect of the word "shall" as used in reference to a rule requiring mailing or delivery of a notice of appeal to the clerk of this Court. Johnson involved the interplay between Rules 5A:3 and 5A:6. Rule 5A:3, quoted more fully above, provides that the time for filing the notice of appeal is "mandatory," which we have interpreted in that context to mean "jurisdictional." Johnson, 1 Va.App. at 512, 339 S.E.2d at 920. Rule 5A:6 provides that "No appeal shall be allowed unless, within 30 days after entry of final judgment . . . counsel files with the clerk of the trial court a notice of appeal, and at the same time mails or delivers a copy of such notice to . . . the clerk of the Court of Appeals." Rule 5A:6(a) (emphasis added).

We held in Johnson, despite use of the word "shall" in Rule 5A:6(a), that the only activity in that rule necessary to give this Court jurisdiction over the appeal was the filing of the notice of appeal with the clerk of the trial court and not the mailing or delivering of the notice to the clerk of this Court. Johnson, 1 Va.App. at 512-13, 339 S.E.2d at 920. In so holding, we cautioned that

we do not minimize the necessity of adherence to the mandate of the Rule by members of the bar. We consider the requirement in the Rule to be significant and one that should not be ignored. Litigants and their attorneys must read and comply with the plain language contained therein. Sanctions may be imposed unless an extension of time for complying with the Rule is granted for good cause shown in accordance with Rule 5A:3(b).

Id. at 513, 339 S.E.2d at 921.

The filing of a timely petition for appeal under Rule 5A:3(a), like the filing of a timely notice of appeal under that same rule, is jurisdictional. Nevertheless, the provisions of Rule 5A:12(c) stating what the petition "shall contain," like the provisions of Rule 5A:6(a) stating that "[n]o appeal shall be allowed" unless a copy of the notice of appeal is mailed or delivered to the clerk of the Court of Appeals, are not jurisdictional. They do not prevent us from exercising jurisdiction over assignments of error added to the petition, with leave of court, at a later date. In appellant's case, like in Johnson, "we do not minimize the necessity of adherence to the . . . Rule[s] by members of the bar." 1 Va.App. at 513, 339 S.E.2d at 921. A petitioner who fails to include one or more issues in his petition for appeal and subsequently asks the Court for leave to enlarge the petition acts at his peril because the Court is not compelled to grant such leave.¹ Nevertheless, the text of the Rule does not prevent this Court, in its discretion and pursuant to its inherent authority, see Yarbrough, 258 Va. at 361,

519 S.E.2d at 608, from considering such additional issues as long as the Court has acquired jurisdiction over the appeal via timely filing of the original petition for appeal.

2. Preservation in the Trial Court under Rule 5A:18

Rule 5A:18 provides that "[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." The purpose of the rule is to avoid unnecessary appeals, reversals, and mistrials by requiring litigants to inform the trial judge of the action...