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Criminal – Continuance – Defense Witness Appearance

A defendant whose trial already had been continued twice, and who did not subpoena a putative witness who supposedly would have testified that he heard the shooting victim say he was not sure defendant was the person who shot him, cannot overturn his conviction by claiming the trial court erred in denying defendant a continuance to again contact the potential witness to request his presence.

Faced with a morning-of-trial request for a continuance, the trial court understandably took into account the case had been continued several times before. The case had been pending for 14 months since defendant’s arrest. Defense counsel proffered little to assure the trial court that the witness could be found within a reasonable time frame. After declaring he “wasn’t excited” about testifying, the witness failed to show up for trial and failed to answer counsel’s phone calls. On the second day of trial, defense counsel concluded it was a “lost cause” – a realistic conclusion given that counsel had no address for the witness and, to make matters worse, the witness was in the process of moving.

We cannot conclude the trial court abused its discretion. A reasonable jurist could conclude defense counsel provided too weak a basis for believing he could timely secure, if ever, the presence of the missing witness. Given the delays that had already taken place in the case, the trial court understandably was reluctant to grant yet another continuance. Because the trial court did not abuse its discretion in coming to this conclusion, we affirm defendant’s conviction of aggravated malicious wounding.

Marshall v. Commonwealth (Kelsey, J.) No. 2310-08-1, March 23, 2010; Norfolk Cir.Ct. (Shadrick) David H. Moyer for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 010-7-107(UP), 5 pp.

VLW 010-7-107

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