                     COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia


DAVID LEE JACKSON

v.   Record No.     0412-94-2               MEMORANDUM OPINION * BY
                                         CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA                      NOVEMBER 21, 1995


            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       James B. Wilkinson, Judge

            Cullen B. Seltzer, Assistant Public Defender
                 (David J. Johnson, Public Defender, on
            brief), for appellant.
            Richard B. Smith, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     David Lee Jackson appeals his jury trial convictions of

first degree murder, use of a firearm in the commission of a

murder, and armed burglary.     Jackson argues that the trial judge

abused his discretion in denying his motion for a continuance and

further erred in refusing to instruct the jury on the lesser

included offenses of armed burglary.    We affirm Jackson's

convictions because the record does not show that the trial court

abused its discretion by denying the continuance, and because

Jackson's proffered jury instructions were unsupported by the

evidence.

     "`The decision whether to grant a continuance is a matter

within the sound discretion of the trial court.     Abuse of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
discretion and prejudice to the complaining party are essential

to a reversal.'"   Lowery v. Commonwealth, 9 Va. App. 304, 307,

387 S.E.2d 508, 509 (1990).   "Only an unreasoning and arbitrary

'insistence upon expeditiousness in the face of a justifiable

request for delay' violates the right to the assistance of

counsel."   Bolden v. Commonwealth, 11 Va. App. 187, 191, 397

S.E.2d 534, 536 (1990) (citing Morris v. Slappy, 461 U.S. 1,

11-12 (1983)) (other citation omitted).   "In determining whether

the trial court properly exercised its discretionary powers, we

look to the diligence exercised by the moving party to gather and

make the evidence available at trial."    Smith v. Commonwealth, 16

Va. App. 630, 636, 432 S.E.2d 2, 6 (1993).

     Jackson first contends he was entitled to a continuance

because there were only ten days between the time of the

indictment and trial.   However, the record does not support a

finding that Jackson's counsel did not have time to prepare for

trial.   Although there were only ten days between the time of the

indictment and trial, defense counsel had represented Jackson for

eight weeks, from the time of his arrest throughout the entire

proceedings.

     Secondly, Jackson complains that he was prejudiced because

the final autopsy report was not filed until 4:00 p.m. on the day

before trial.   Counsel had access prior to trial to the medical

examiner who prepared the final autopsy report, as well as her

preliminary findings.   Counsel was unable to articulate to the

trial judge how any information contained in the final autopsy
                               - 2 -
report was of value to appellant, or how he would be prejudiced

by a denial of his request for a continuance.    While the final

report confirmed that the remaining two shots, as well as the

first (confirmed in the preliminary report), had entered through

the back, defense counsel never proffered that she had mistakenly

developed a theory of self-defense.    In fact, defense counsel

admitted she had not yet developed any defense theory.   When

counsel could give no reason the late autopsy report prejudiced

the defense, the trial judge advised counsel to consider the

matter overnight and to bring it up before trial if she could

think of any reason.
     Jackson next contends that a potentially exculpatory witness

was discovered two days before trial, and that he should have had

time to find and interview this witness.   Under the circumstances

of this case, Jackson was not entitled to a continuance to

interview an allegedly exculpatory witness.   In such cases, this

Court "look[s] to the diligence exercised by the moving party to

locate the witness . . . . "   Smith, 16 Va. App. at 636, 432

S.E.2d at 6.

     While Jackson's counsel claimed that the witness was

discovered two days before trial, she could have discovered her

much earlier.   At trial she stated: "the Commonwealth did let me

see the file prior to the preliminary hearing.   I saw it.   I did

not -- I read it.   I did not take any notes."   Jackson does not

allege any violations of discovery rules by the Commonwealth or

surprise.   See Stewart v. Commonwealth, 10 Va. App. 563, 569, 394

                               - 3 -
S.E.2d 509, 513 (1990).   That the witness saw three or four

people running from the scene of the shooting did not tend to

exculpate appellant; Jackson was the only one seen with a gun on

the night in question and it is not uncommon for people to run

from an area after hearing gunshots.

     Lastly, Jackson's defense counsel never said that they found

the witness, nor that the witness had anything helpful to say,

even though they had three weeks after the trial to bring new

information forward under Rule 1:1.
     Finally Jackson claims he was entitled to a continuance

because a difference arose between himself and defense counsel,

over whether he should testify, two nights before his trial.

This contention is without merit.   "In order to work a delay by

the last minute change of counsel, exceptional circumstances must

exist."    Shifflett v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d

316, 320 (1977).   Although Jackson's counsel stated to the court

that a difference arose between herself and Jackson, over whether

he should testify, two nights before his trial, she failed to

demonstrate any exceptional circumstances.   In fact, while

Jackson's counsel only vaguely alluded to the conflict, her

conversation with the court appears to present a typical dilemma

which faces counsel when a defendant insists on testifying, i.e.,

perjured testimony.   It's quite likely that Jackson's counsel was

worried that if Jackson testified he would lie on the stand,

forcing her to reveal his crime and having to withdraw as

counsel.   At any rate, the differences were resolved when counsel
                                - 4 -
told the court that she had convinced Jackson not to testify.

     "A reviewing court's responsibility in reviewing jury

instructions is to 'see that the law has been clearly stated and

that the instructions cover all issues fairly raised.'"     Darnell

v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)

(citation omitted).   "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).

     In this case the record bears no more than a scintilla, if

that, of evidence to support Jackson's proffered instructions on

lesser included offenses of burglary.    The deceased's wife

testified that she cracked open the door when someone knocked on

it, and Jackson and another man "pushed the door open, brushed

past [her] and walked through the house with guns."    Upon forcing

their way into the dwelling, the two proceeded directly toward

the deceased and began to maliciously beat him before taking the

deceased outside where Jackson shot him.    This uncontradicted

testimony, which was supported by the physical evidence, does not

support the defense theory that Jackson was guilty of breaking

and entering with intent to commit a misdemeanor or unlawful

entry.

     For all of the above-stated reasons, Jackson's convictions

are affirmed.
                               - 5 -
        Affirmed.




- 6 -
Benton, J., dissenting.

     In the motion for continuance, David Lee Jackson's counsel

stated that she needed additional time to prepare for the trial,

which was scheduled to occur ten days after the indictment.    In

the motion, counsel alleged that only nine days earlier the

Commonwealth indicted Jackson on a "new charge of armed breaking

and entering," that on the day before trial counsel had not

received the "final autopsy and toxicology report," and that

counsel had "just learned of a potentially exculpating witness."

Although counsel's motion for a continuance of a trial was

addressed to the trial judge's exercise of sound discretion, the

principle is well established that the trial judge must exercise

that discretion "with due regard to the provisions of the Bill of

Rights, which secure to one accused of crime a fair and impartial

trial; and to that end safe-guard his right 'to call for evidence

in his favor.'"   Cremeans' Case, 104 Va. 860, 863, 52 S.E. 362,

363 (1905) (quoting Const. of Va., Art. I § 8).
          This unqualified right includes "the right to
          prepare for trial which, in turn, includes
          the right to interview material witnesses and
          to ascertain the truth." This right applies
          with equal force to the procurement of
          documentary evidence.

Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984)

(quoting Bobo v. Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213,

215 (1948)).

     The record establishes that Jackson was initially charged

with a murder that occurred on the street in front of an


                               - 7 -
apartment.   Jackson did not remove the victim from the apartment.

The Commonwealth's witness, the victim's wife, testified that

she and the victim left witness' apartment together.   They were

walking to a public telephone when the victim saw Jackson and

another man, both armed.   The witness ran back into her

apartment, closed the door, and heard four shots.   No witness

testified who saw the killing.

     Ten days prior to the trial, the Commonwealth indicted

Jackson for that murder.   In addition, however, at that same time

the Commonwealth charged Jackson for the first time with breaking

and entering the witness' apartment while armed and with the

intent to commit a felony.    Jackson had only ten days to prepare

for his defense to this additional indictment.   In denying the

continuance, the trial judge failed to consider that "[i]n order

to prepare for trial, an accused and his counsel must have

sufficient time to investigate the case and to evaluate the

evidence that is procured."    Gilchrist v. Commonwealth, 227 Va.

540, 545, 317 S.E.2d 784, 787 (1984).    The denial of counsel's

motion for a reasonable continuance to prepare Jackson's defense

to that felony was an abuse of discretion.

     Furthermore, on the day before trial at the continuance

hearing, the prosecutor agreed that the medical examiner had not

prepared her report because "she is not clear as to the other two

wounds because . . . its difficult to tell whether [the bullets]

. . . went in the back or came out the front or vice-versa."     The

autopsy report was not filed in the trial court until after 4
                                 - 8 -
p.m. on the day prior to trial.      The toxicology report was given

to counsel at trial.      Both reports were both admitted in evidence

at trial against Jackson.      In the absence of these exhibits,

Jackson's counsel could not have adequately prepared to defend

Jackson.      Counsel was entitled to have adequate time to evaluate

the reports and to prepare a defense.       Id.

        The Commonwealth's evidence proved that before the victim

was shot he saw Jackson and another man, both of whom had guns.

Although the Commonwealth's witness testified that only Jackson

had approached her husband before she ran back to her apartment,

she was in her apartment behind a closed door when the victim was

shot.       Jackson's counsel had learned a day before trial that a

person who was not on the Commonwealth's witness list had seen
                                                          1
several persons leaving the vicinity of the shooting.          Counsel
        1
      On the day prior to trial, when Jackson's counsel argued in
support of the motion for a continuance, she made the following
representation to the judge:

               There are a number of potentially exculpatory
               matters that are contained within his file
               that we saw yesterday. There is a witness
               that saw the, heard the shots fired and saw a
               different number of people running away from
               the area than the woman who testified at the
               preliminary hearing whose husband was killed.
                I mean, there is a difference from a witness
               out there that we just found out about that
               is potentially exculpatory for Mr. Jackson.
               And that we need time to continue to do. I
               will state for the Court that the
               Commonwealth did let me see the file prior to
               the preliminary hearing. I saw it. I did
               not -- I read it. I did not take any notes.
                I was not allowed to take notes. It was
               simply an informal reading of the report that
               the victim's wife gave to the police at that
               point. And the Commonwealth had been willing
                                   - 9 -
had an investigator searching for that person to interview as a

potential exculpatory defense witness.   Because the

Commonwealth's own evidence placed another person in the victim's

presence with a gun prior to the shooting, the failure to give

Jackson's counsel additional time to locate and interview the

missing observer was plain error.

     For these reasons, I would hold that the trial judge abused

his discretion in refusing to grant a reasonable continuance.

Thus, I would reverse the convictions and remand for a new trial.




          to give me the file. The problem is that
          when we take notes yesterday and find this
          witness that's differs from the
          Commonwealth's witness, I feel that we have
          an obligation at that point to try to track
          down this potentially exculpatory witness.


                             - 10 -
