                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia


JULIUS M. MARTIN
                                          MEMORANDUM OPINION * BY
v.          Record No. 2715-95-2           JUDGE LARRY G. ELDER
                                             NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                       Robert G. O'Hara, Judge
            H. Lee Townsend, III (Townsend and Bloom,
            P.L.L.C., on brief), for appellant.

            Ruth Ann Morken, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Margaret Ann B. Walker, Assistant Attorney
            General, on brief), for appellee.



     Julius M. Martin (appellant) appeals his conviction of

malicious wounding.   He makes three assignments of error.    First,

he contends that the trial court abused its discretion in denying

his motion for a continuance when he proffered that a material

witness was not present.   Second, he asserts that the trial court

abused its discretion in removing him from the courtroom during

his trial as a result of his allegedly disruptive behavior.

Third, he contends that the trial court erred in refusing to

instruct the jury on the lesser included offense of unlawful

wounding.   For the reasons that follow, we affirm.



     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                  I.

                                 FACTS

        Appellant, an inmate at the Greensville Correctional

Facility, was charged with maliciously wounding another inmate on

December 25, 1994.    Following a continuance that was previously

granted to the Commonwealth, appellant was tried on September 28,

1995.    The trial was held in a small temporary courtroom that

measured approximately twenty feet by thirty feet and was

occupied by twenty to thirty people during his trial.
        At the beginning of the trial, after the swearing of the

jury panel, appellant's counsel moved the trial court for a

continuance on the ground that a material witness was not

present.    Although she stated that the witness was material

because he had witnessed the alleged crime, she did not proffer

the substance of the missing witness' testimony.    The missing

witness was not subpoenaed because he had failed to respond to a

letter sent by appellant's counsel requesting information

regarding the crime and because appellant had failed to inform

his counsel that the missing witness was an eye-witness until the

morning of his trial.    The trial court denied appellant's motion.

        Immediately after the denial of his motion for a

continuance, appellant rose from his seat and attempted to leave

the courtroom.    After three officers restrained him, appellant

became "vocal, loud, and disruptive."    The trial court warned

appellant three times to stop his disruptive behavior.     When




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appellant persisted in his disruptive conduct, the trial court

became concerned for the safety of the others in the cramped

courtroom and ordered appellant removed from the courtroom.     The

trial court then allowed appellant's counsel to speak with

appellant in order to inform him that he would be allowed back

into the courtroom on the condition that he cease his disruptive

behavior.   Appellant's counsel returned and stated to the trial

court that she had explained to appellant the conditions of his

return to the courtroom and that he risked forfeiting his right

to be present at his trial.   She also stated that appellant

wished not to return and remained in the prison van.
     Appellant remained in the van during his trial.   Upon

request by the trial court, appellant's counsel spoke with him at

the conclusion of the Commonwealth's evidence, informed him of

its content and advised him again that he could return to the

courtroom on the condition of good behavior.   Appellant again

refused to return to the courtroom and the remainder of the trial

was conducted outside of his presence.

     The evidence introduced at trial was limited to two

witnesses offered by the Commonwealth.   The inmate-victim of

appellant's attack testified that appellant approached him twice

during the recreation period on December 25 and asked him a

question.   After the inmate answered the question a second time

and was walking away, appellant swung at the inmate and stabbed

him several times with a makeshift knife.   The inmate, who was




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unarmed, then ran from appellant as appellant started chasing him

throughout the prison recreation area.    The altercation ended

when a prison guard opened a door through which the inmate fled

and when another inmate intervened to stop appellant.      A

correctional officer who witnessed the incident testified that he

also saw appellant chasing the inmate and stabbing him several

times as the inmate tried to flee.

     At the conclusion of the evidence, appellant's attorney

proposed a jury instruction on the lesser included charge of

unlawful wounding that the trial court refused.    Instead, the

trial court instructed the jury on the crime of malicious

wounding and included an explanation of the element of malice.

The jury returned a verdict of guilty.
                                 II.

                  DENIAL OF MOTION FOR A CONTINUANCE

     Appellant contends that the trial court abused its

discretion when it denied his motion for a continuance at the

beginning of his trial.    We disagree.

     "Whether to grant or deny a continuance of a trial is a

matter that lies within the sound discretion of the trial court,

and its ruling will not be reversed on appeal unless it is

plainly wrong."    Cardwell v. Commonwealth, 248 Va. 501, 508, 450

S.E.2d 146, 151 (1994), cert. denied,       U.S.       , 115 S. Ct.

1826, 131 L.E.2d 747 (1995).    An appellant challenging a denial

of a continuance must show both an abuse of discretion and



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prejudice.   Id.   The prejudice allegedly resulting from the

denial of a continuance cannot be based on mere speculation and

must appear from the record.    Id.; Lowery v. Commonwealth, 9 Va.

App. 304, 307, 387 S.E.2d 508, 510 (1990).     Specifically, the

content of a witness' expected testimony must be set forth in the

trial record by either "(1) a unilateral avowal of counsel, if

unchallenged; (2) a mutual stipulation of the parties; or (3) the

taking of testimony of the witness outside the presence of the

jury."   Lowery, 9 Va. App. at 307, 387 S.E.2d at 510.

     We hold that the denial of appellant's motion for a

continuance was not improper.   Even assuming that the trial

court's denial of the motion was an abuse of discretion,

appellant has failed to show any prejudice.     Although appellant's

counsel stated that the missing witness was "material," there was

no proffer of the witness' expected testimony, either

unilaterally or by stipulation.    Thus, whether or not appellant

was prejudiced by the denial of his motion for a continuance is a

matter of speculation because we cannot determine whether the

missing witness' testimony would have been in appellant's favor.
 Id. at 307-08, S.E.2d at 510; Stewart v. Commonwealth, 10 Va.

App. 563, 569, 394 S.E.2d 509, 513 (1990).     Nor can we say that

appellant was denied the opportunity to fully investigate the

evidence in preparation for trial.      Appellant had several months

to inform his counsel of the material nature of the missing

witness to ensure that his counsel would subpoena the witness to




                                  -5-
appear at trial.




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                               III.

                    REMOVAL FROM THE COURTROOM

     Although a person accused of a crime in Virginia has both a

constitutional and statutory right to be present at his own

trial, 1 this right is not absolute.   Martin v. Commonwealth, 11

Va. App. 397, 405, 399 S.E.2d 623, 627 (1990) (citing Illinois v.

Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 1060-61, 25 L.Ed.2d

353 (1970), reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L.E.2d

80 (1970)).   An accused forfeits his right to be present at his

trial "if, after he has been warned by the judge that he will be

removed if he continues his disruptive behavior he nevertheless

insists on conducting himself in a manner so disorderly,

disruptive, and disrespectful of the court that his trial cannot

be carried on with him in the courtroom."    Quintana v.

Commonwealth, 224 Va. 127, 144, 295 S.E.2d 643, 651 (1982), cert.

denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L.E.2d 501 (1983),

reh. denied, 461 U.S. 940, 103 S. Ct. 2113, 77 L.E.2d 316 (1983)

(quoting Allen, 397 U.S. at 343, 90 S. Ct. at 1060).
     Appellant does not contend that the trial court lacked the

power to remove him from the courtroom for contumacious behavior.

 Martin, 11 Va. App. at 405-06, 399 S.E.2d at 627 (quoting Allen,

397 U.S. at 343-44, 90 S. Ct. at 1061) (stating that it is

constitutionally permissible for a trial judge to remove an
     1
      U.S. Const. amend. VI; Va. Const. art. I, § 8; Code
§ 19.2-259 (stating that "a person tried for felony shall be
personally present during the trial").



                                -7-
obstreperous defendant from the courtroom until he promises to

behave properly).   Instead, appellant argues that his behavior

was not so disorderly, disruptive, and disrespectful to warrant

his removal from the courtroom.    We disagree.

     "The conduct of a trial and the imposition of measures

necessary to ensure security and maintain decorum is left to the

sound discretion of the trial court," Martin, 11 Va. App. at 405,

399 S.E.2d at 627, and its rulings and orders will not be

reversed on appeal unless plainly wrong.   When removing a

defendant from the courtroom or taking other measures, the trial

court must make a record of the reasons for the choice of

measures taken to ensure that a reviewing court may determine

whether the trial court abused its discretion.       Id. at 406,

S.E.2d at 628.

     In this case, it does not appear that the trial court was

plainly wrong to remove appellant from the courtroom.      The trial

court described appellant's conduct in the record it made

explaining the reasons for ordering his removal.      It appears from

the record that appellant's behavior "was disorderly, disruptive,

disrespectful, and persistently contumacious in the face of

repeated warnings" and that his removal was even more warranted

by the cramped conditions in the courtroom.       Quintana, 224 Va. at

144, 295 S.E.2d at 652 (holding that trial court did not abuse

discretion when it removed defendant following warnings that he

cease verbally interrupting the proceedings).      We hold that the




                                  -8-
trial court did not abuse its discretion in removing appellant

from the courtroom during his trial.

                                 IV.

                  REFUSAL TO GIVE JURY INSTRUCTION

     Appellant also contends that the trial court committed

reversible error when it refused his request to instruct the jury

on the lesser included offense of unlawful wounding.   We

disagree.
     "If there is any evidence that would support a conviction

for the lesser included offense, the trial court, must, upon

request of counsel, instruct the jury as to the lesser included

offense.    An instruction, however, must be based on more than a

scintilla of evidence."    Miller v. Commonwealth, 5 Va. App. 22,

24, 359 S.E.2d 841, 842 (1987) (citations omitted).

     We are unable to find any evidence in the record that

supports appellant's theory that he attacked the victim-inmate

without malice and in the heat of passion.   The only evidence

offered at trial concerning the attack was that appellant

attacked the inmate with a makeshift knife after the inmate

responded to a question.   There is no evidence concerning any

prior conflict between appellant and the inmate nor any evidence

indicating that the inmate provoked either fear or rage in

appellant that prompted the attack.    Instead, the uncontroverted

testimony of the inmate was that he was unarmed and did not

retaliate after the appellant stabbed him.    See id. at 26, S.E.2d




                                 -9-
at 843 (holding that trial court should have given instruction on

unlawful wounding where evidence showed that victim provoked a

fight with the defendant minutes before defendant shot him).

Because there is no evidence that appellant attacked the inmate

"upon a reasonable provocation, in the heat of passion," id., we

hold that the trial court did not err in refusing to instruct the

jury on the offense of unlawful wounding.

     In light of the foregoing reasons, we affirm the conviction

of malicious wounding.
                                                        Affirmed.




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