                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Russell and AtLee
UNPUBLISHED



              Argued at Williamsburg, Virginia


              ROBERT KING VIA, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0508-18-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                   JULY 9, 2019
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                         Dean W. Sword, Jr., Judge Designate

                               Charles E. Haden for appellant.

                               Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     A jury of the Circuit Court of the City of Hampton (“trial court”) convicted appellant

              Robert King Via, Jr. of breaking and entering, conspiracy to commit robbery, and the use of a

              firearm in the commission of a felony.1 The sole issue on appeal is whether the trial court

              abused its discretion in precluding Via from calling two defense witnesses, Christopher Martin

              and Ashley Aaron Watkins, at his trial. He argues their exclusion “deprive[d] Via of his

              constitutional right to call forth evidence in his favor.” For the following reasons, we find that

              Via failed to preserve this objection and affirm.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        This case has been tried many times. After the first trial, it was appealed to this Court,
              and ultimately to the Supreme Court, which reversed on grounds not at issue in this appeal. Via
              v. Commonwealth, 288 Va. 114 (2014). Upon remand, the first retrial resulted in a mistrial on
              all but one of the charges because the jury could not reach a verdict. Another trial for the
              remaining counts resulted in a hung jury. The final trial resulted in Via’s convictions, and the
              instant appeal followed.
                                          I. BACKGROUND

       On appeal, we view the evidence in the light most favorable to the Commonwealth, the

party who prevailed before the circuit court. Clanton v. Commonwealth, 53 Va. App. 561, 564

(2009) (en banc). The facts of Via’s underlying crimes are immaterial to the issue before us. As

such, we only address those facts that are essential to the matters at issue in this appeal.

       At the trial that resulted in the instant appeal, the trial court, upon Via’s counsel’s motion,

ordered the sequestration of witnesses. During a recess, Via’s counsel approached two defense

witnesses, Martin and Watkins, with transcripts of their testimony from prior trials. The trial

court had repeatedly told Via’s counsel not to communicate ex parte with witnesses in an attempt

to refresh their recollection of previous testimony. When court reconvened, the Commonwealth

raised an objection to both Martin and Watkins testifying because Via’s counsel had

communicated with them outside of the courtroom regarding their anticipated testimony. The

trial court agreed, finding that Via’s counsel had violated its sequestration order, and barred the

witnesses from testifying.2

       Via’s counsel responded that this was a misunderstanding and not an attempt to

encourage the witnesses to offer consistent testimony. He argued that his actions did not

intentionally violate the sequestration rule and that he believed the practice of refreshing witness

recollection under these circumstances was customary. He stated as follows:3

               Your Honor, I would proffer that I made my motion for separation
               Monday, January 8. Neither of those witnesses were present on

       2
          Because we find that this error was not preserved, we do not rule on the trial court’s
assessment that counsel violated an order based on Code § 19.2-265.1 sequestration rules or
whether it erred in barring the witnesses’ testimony on those grounds. However, we note that
Virginia has long permitted a witness to refresh his recollection by referring to a transcript of his
prior testimony, even while on the witness stand. Burns v. Gagnon, 283 Va. 657, 679 (2012);
Portsmouth Street R. Co. v. Peed, 102 Va. 662, 676 (1904).
       3
        We include the entirety of his argument since our decision in this matter rests on what
Via’s counsel omitted in his argument to the trial court.
                                               -2-
               that day. They had not been subpoenaed to appear until today’s
               date. And so the first opportunity -- I simply sought in my
               conversation with them -- simply approached them during the
               recess and said please review your testimony from the prior trial,
               this is -- so it’s fresh in your memory, and simply gave them the
               transcripts. That’s it.

               I certainly did not discuss what other witnesses have testified to.
               I’d never do that. I didn’t -- I was not under the impression that
               that violated any kind of sequestration rule. In fact, it has been my
               observation that in the prior trials involving this specific defendant,
               Mr. Via, the prosecutor in the two prior trials, Mr. Scott Alleman
               would routinely provide the testimony -- transcripts from prior
               testimony during the course of the trial to make sure the witnesses
               were fresh in their memory. I had no objection to that.
               It appeared to me proper because, you know, when something
               extends this matter’s been going on for years and it’s hard for a
               person to remember what he testified to back in 2012 or 2016.

                  ....

               And so all I did was simply invite the persons to review their trial
               testimony and that’s it. And my impression was that was the
               practice of this court, because that’s what I observed and I was --
               certainly did not intend to violate any kind of rule, and I certainly
               wasn’t seeking to inform the witnesses about what other persons
               have said so you can try to counter that. Nothing of that sort. Just
               simply refresh your memory about what you yourself have said so
               you don’t -- you know, you don’t forget what you said before and
               contradict yourself. So I didn’t tell them that specifically, but
               that’s the purpose, simply refresh your memory. And so if I have
               violated the court’s rule, it was done so inadvertently. It was
               certainly not my intention to do any sort of underhanded thing or
               anything improper. I thought I was acting in a proper way. At
               least in my experience, that is a routine practice. At least -- it
               certainly would be improper if I were to try to tell the witness --
               sequestered witnesses what it is that they have said, what other
               witnesses have said and said to be prepared to counter those. That
               would be wrong. I can say I can recollect, you know, previous
               proceedings, Detective Gainer would be talking with other
               witnesses -- defense witnesses. He testified about conversations he
               had in the hallway. You know, this is after they’ve been
               sequestered.

The trial court nonetheless found that Via’s counsel had violated the sequestration order and

barred Martin’s and Watkins’s testimony. The trial court held that Via’s counsel engaged in

                                                -3-
conduct which the court had specifically prohibited. Additionally, it noted that by approaching

the witnesses with their prior testimony, counsel was “tacitly saying this is what I expect you to

testify to.” After this ruling, Via’s counsel proffered what each witness would have testified to.4

Ultimately, the trial court convicted Via of breaking and entering, conspiracy to commit robbery,

and the use of a firearm in the commission of a felony. Via received a sentence of 23 years and

one day in prison with three years and one day suspended. This appeal followed.

                                           II. ANALYSIS

       Via argues on appeal that excluding Martin’s and Watkins’s testimony violated his rights

under the Virginia Constitution and Sixth Amendment to the United States Constitution to call

forth evidence in his favor. Va. Const. art. I, § 8; U.S. Const. amend. VI. Yet, he failed to raise

any of these issues at trial. Instead, counsel’s argument concerned only why he believed he did

not intentionally violate the trial court’s sequestration order or otherwise act improperly.

       Under Rule 5A:18, “[t]he Court of Appeals will not consider an argument on appeal

which was not presented to the trial court.” Masika v. Commonwealth, 63 Va. App. 330, 333

(2014) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)). Although this Court

will consider arguments that counsel failed to preserve when there is “good cause shown” or it

“enable[s] the Court of Appeals to attain the ends of justice,” Rule 5A:18, Via presented no such

argument to this Court. He also did not explain, until questioned at oral argument before this

Court, that his failure to preserve the issue was the result of an unfortunate confluence of

transcription errors, counsel’s hearing deficiencies, and other mistakes.5 Because Via failed to


       4
       Martin would have ostensibly provided an alibi for Via. Watkins would have offered
impeachment testimony regarding a jailhouse witness for the prosecution.
       5
         For the first time at oral argument before this Court, Via’s counsel contended that he in
fact did make this argument, but that it mistakenly took place during an off-the-record discussion
at the bench and thus did not appear in the transcripts. Yet, since the record contains no

                                                -4-
preserve the argument he presents on appeal, and “has failed to prove that the record

affirmatively establishes that an element of the offense did not occur or that he was convicted of

a non-offense, we hold that no manifest injustice has resulted from [his] conviction,” Brittle v.

Commonwealth, 54 Va. App. 505, 520 (2009), as required by the “ends of justice” exception. As

a result, we do not consider his arguments.

                                          III. CONCLUSION

       Via failed to present the arguments he makes on appeal before the trial court. He neither

argues for nor satisfies the criteria for the “ends of justice” exception to Rule 5A:18. As such, he

has failed to preserve the issues presented in his assignment of error.

                                                                                            Affirmed.




indication of this, and he failed to note or explain the discrepancy in his Petition or Brief to this
Court (which require that appellant specifically note where an issue was preserved, Rules
5A:12(c)(1) and 5A:20(c)), we cannot say it was preserved. See Justis v. Young, 202 Va. 631,
632 (1961) (noting that appellant bears burden of presenting a sufficient record upon which the
Court of Appeals can determine that the trial court erred).
                                                 -5-
