Smith v. Com.

• Decision Date: 22 June 1993
• Docket Number: No. 1305-91-1,1305-91-1
• Citation: 432 S.E.2d 2,16 Va.App. 630
• Parties: Ronald Lee SMITH, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 2

432 S.E.2d 2

16 Va.App. 630

Ronald Lee SMITH, Jr. v. COMMONWEALTH of Virginia.

Record No. 1305-91-1.

Court of Appeals of Virginia.

June 22, 1993.

Charles E. Haden, Hampton, for appellant.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, KOONTZ ^* and WILLIS, JJ.

OPINION

JOSEPH E. BAKER, Judge.

Ronald Lee Smith, Jr. (appellant) appeals from his bench trial conviction by the Circuit Court of the City of Hampton (trial court) for rape of a fourteen year old female (victim). The sole issue presented by this appeal is whether the trial court abused its discretion when it denied appellant's motion for a continuance made for the first time on the morning that the trial was scheduled to begin.

On January 9, 1991, appellant was arrested pursuant to a warrant that charged he raped the victim. On January 10, 1991, counsel was appointed to represent appellant. She remained his counsel throughout the entire proceedings, including his conviction in the trial court from which this appeal emanates, and preparation of the petition and brief submitted to this Court.

To enable appellant to undergo psychiatric evaluation, on appellant's motion, a preliminary hearing scheduled for January 30, 1991 was continued. On March 7, 1991, appellant waived preliminary hearing. The case was certified to the trial court where, on April 1, 1991, appellant was indicted by a grand jury for rape in violation of Code § 18.2-61. By agreement with appellant's counsel, trial on the indictment was scheduled for May 1, 1991.

On April 5, 1991, counsel for appellant filed a motion in the trial court asking that any and all statements made by appellant be suppressed. Appellant asserted violation of his Fourth, Fifth and Sixth Amendment rights "in that Defendant's statements were not voluntary as they were induced by factual misrepresentations by Police Officers, without advice of counsel and, while Defendant was being held under circumstances designed to wear down his free will." On May 1, 1991, by agreement, the trial date was continued. On May 2, 1991, evidence and argument were heard on appellant's motion to suppress. The motion was denied. By further agreement, the trial was rescheduled for May 30, 1991.

On the morning of May 30, 1991, prior to trial, counsel for appellant filed a "Motion For Discovery," asking the trial court to order the Commonwealth "to permit the Defendant to inspect and copy or photograph any written report of DNA paternity test, blood and breath test, or other scientific reports and written reports ... that are known by the Attorney for the Commonwealth to be within the possession, custody or control of the Commonwealth." When it was shown that the Commonwealth was not in possession of any of the documents requested, counsel for appellant made the following motion:

I move to continue this case on the fact that the DNA test which my client voluntarily submitted to back in January, the test results haven't been returned yet. The test results are material to my defense. My client feels that it's exculpatory evidence, and I requested test results for that.

In response to the motion to continue, the trial court inquired of the prosecutor as to the status of the test results. The prosecutor said that she had called the lab and the lab would not start making the test for six to eight months from May 30, 1991. She further stated that once started, the testing process takes ten weeks and added that we are "looking at almost a year." The trial court then asked counsel for appellant, "what will the test show?" Appellant responded as follows:

Uh ... the victim alleged that she's only had sex that one time. The pregnancy was the result ... of the rape. My client denies such charge.

Thereafter, the trial court found that it would be unreasonable, on the facts presented, to grant the motion to continue the matter when it appeared that the results would not be available for "possibly a year," and said:

THE COURT: We'll let the record reflect that on this day [trial date] Ms. Pak [defense counsel] filed a motion with the Court asking that any, to allow her to inspect, copy or photograph any written report of DNA test of blood, and breath tests, or other scientific reports, written reports of a physical and mental examination of the defendant or the alleged victim made in connection with the case.

And, as I understand from the Commonwealth there is no DNA test results to be had.

MS KRINICK: That's correct. Your honor. She [Ms. Pak] has seen my entire file, but that testing has not been done, and, therefore I'm not in possession ...

THE COURT: It is my understanding the test has not been done and will not be done for maybe six months. The results will not be available for possibly a year.

MS. KRINICK: That's correct, your honor.

Counsel for appellant agreed with the trial court's observation that the DNA test would not prove that appellant was innocent of the rape charge but asserted that the result might contradict the victim's testimony that she had not had intercourse with anyone other than appellant at the time the rape is alleged to have occurred. Counsel further argued that the results might be exculpatory evidence.

When the trial judge denied the motion to continue, he stated that he would not be concerned with the issue of who fathered the baby, but, rather, would be concerned only with the issue whether the victim had been raped by appellant. The judge then said that it would be unreasonable to delay the trial for "possibly a year."

The record supports the trial court's decision. Upon familiar principles, we consider the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

The victim is fourteen years old. At the time of the offense, she lived with her mother, brothers and sisters. Appellant, a friend of the victim's mother, shared her mother's bedroom. When the victim was raped, she and appellant and possibly one brother were alone in the house. The victim had taken a bath and, clothed only in her "bra," was drying off when appellant entered her room. She told him to leave. Instead of leaving, appellant pushed her down on the bed and forcibly penetrated her vagina with his penis. While appellant was on top of the victim, she was hitting him and yelling for him to get off of her. The victim testified that she became pregnant as a result of the rape. On January 16, 1991, the fetus was aborted.

On January 9, 1991, Detective Edgar A. Browning, a Hampton Police Investigator, was assigned to investigate the victim's complaint. As a result of information he received from the victim, he caused a warrant of arrest to be issued for appellant. After arresting appellant, but before interviewing him, Browning read appellant his Miranda rights. Appellant gave Browning two written statements in which he admitted to having sex with the victim. In the first, he related how the victim had come to him, disrobed and, in effect, seduced him. When Browning told appellant that he could not believe the girl he had met could have acted in the manner appellant's first written statement suggested, appellant provided Browning with a second handwritten statement. In the second statement, appellant described the sexual events, except for the force, very nearly as the victim had related them. He concluded the handwritten admission by writing: "The baby is mine."

When the Commonwealth rested its case, appellant made no further motion at that time. Appellant called the victim's mother to testify on his behalf. She stated that appellant was her boyfriend and that she did not become aware of the victim's complaint until early January 1991. The mother admitted that she was pregnant by appellant at the time appellant had sex with the victim.

Appellant testified that the victim's brother, Larry, was at home the day appellant had sex with the victim. Appellant called Larry as a witness and Larry denied being at home on that date. Appellant disavowed his written admissions and denied having had sexual intercourse with the victim. He asserted that he had only written in the second statement the things Browning told him the victim had alleged. He said that he had described the events only as Browning had told him. He testified that the reason he made those statements was that the giving of the statement made it possible for him to be bonded out of jail pending his trial. On cross-examination, appellant admitted that Browning told him that he did not believe his first statement and asked him to write one that was true.

The defense rested without further motion and only argued that appellant's testimony was more credible than that presented by the Commonwealth. When finding appellant guilty, the trial court repeated that the issue was whether appellant had raped the victim, not to whom the baby belonged. On the facts presented by this record, we find that appellant's motion for a continuance was not timely made and that the record fails to show that he was diligent in his efforts to obtain the evidence upon which his motion was based.

"A motion for a continuance ... is...