Opinion
Record No. 2058-91-4
May 11, 1993
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY JACK B. STEVENS, JUDGE.
Jerry M. Phillips (Phillips, Beckwith Hall, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Barrow, Willis and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
On appeal from his conviction for distribution of cocaine, Reginald Wayne Clarke contends that the trial court erred (1) in refusing to entertain his motion, made orally on the day of trial, to suppress his confession, (2) in refusing to require the Commonwealth's Attorney to deliver to him the written statement of a co-defendant, and (3) in refusing to delay the trial to permit defense counsel to attempt to locate his law clerk, who had been sent to obtain jury instructions. We find no error and affirm the judgment of the trial court.
On the day of Clarke's trial, before voir dire of the venire, Clarke's counsel moved orally to suppress a statement allegedly given by Clarke to the police. The motion asserted that the statement was involuntary and that it had not, in fact, been given. Defense counsel acknowledged that such motions are required by statute to be made in writing not later than seven days before trial, but explained that he had been in another court "with a protracted matter, multiple co-defendants" and stated, "I'm making this motion for the record." The trial court denied the motion.
At the same time, defense counsel moved that the Commonwealth's Attorney be required to turn over "a written statement by the co-defendant that was arrested and sentenced in this case." The Commonwealth's Attorney acknowledged possession of the statement, but denied that it was exculpatory. The trial court reviewed the statement in camera, ruled that it was not exculpatory, but inculpatory, and denied the motion for production.
At the conclusion of the evidence, the trial court called for the submission of proposed jury instructions. Defense counsel stated, "I sent my law clerk when we broke at lunch for my jury instructions. He has not yet returned. I am just simply alerting to the court to why I don't have any jury instructions." After the trial court ruled on the instructions proposed by the Commonwealth, defense counsel stated, "Your Honor, I would be asking the court to consider perhaps ten minutes to allow me to make a phone call to find out where my clerk is." The trial court responded, "No, Sir. Should have had those instructions here this morning, Mr. Daum." Defense counsel replied, "I'm aware of that." He made no further motion or objection. He proffered no instruction or subject of instruction. He asserted no deficiency of instruction.
I.
Code § 19.2-399 provides, in relevant part:
Defense motions or objections seeking (i) suppression of evidence on the grounds such evidence was obtained in violation of the provisions of the Fourth, Fifth or Sixth Amendments to the Constitution of the United States or Article I, Section 8, 10 or 11 of the Constitution of Virginia proscribing illegal searches and seizures and protecting rights against self-incrimination. . .shall be raised by motion or objection, in writing, before trial. The motions or objections shall be filed and notice given to opposing counsel not later than seven days before trial.
Clarke's motion to suppress his confession did not satisfy this requirement. It was not made in writing, it was not made seven days or more before trial, and no notice was given to opposing counsel.
Clarke contends that his motion was timely under Rule 3A:9(b)(2) which provides, in pertinent part:
[A]ny defense or objection that is capable of determination without the trial of the general issue may be raised by motion before trial.
The rule does not control. When conflicting provisions are found, the provisions of a rule are subordinate to those of a statute.See Graham v. Commonwealth, 11 Va. App. 133, 138, 397 S.E.2d 270, 273 (1990); Code § 8.01-3. Furthermore, a specific provision takes precedence over one that is general. See Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 S.E.2d 606, 618,cert. denied, 113 S.Ct. 421 (1992).
Code § 19.2-399 provides:
The court may, however, for good cause shown and in the interest of justice, permit the motions or objections to be raised at a later time.
Clarke contends that this provision authorized the tardy presentation of his motion. He did not present this argument to the trial court. Therefore, we will not entertain it on appeal. Rule 5A:18. Furthermore, this proviso, employing the language "may. . .permit," is addressed to the sound discretion of the trial court. The record discloses no abuse of that discretion. The motion was not presented in writing. Defense counsel explained his tardiness only by alluding to other employment. Other employment does not justify delinquency or delay.See Thomas, 244 Va. at 13, 419 S.E.2d at 612-13. The ends of justice were not frustrated. The record discloses that in the trial, the defense was afforded, and utilized, a full opportunity to contest the voluntariness of the confession and to question whether it was given at all.
II.
Clarke moved for production of the written statement of Brenda Owens on the ground that it was exculpatory, and on the further ground that he wanted to use it in trial.
Clarke's request for disclosure of the statement was a specific request for allegedly exculpatory evidence. See United States v. Bagley, 473 U.S. 667, 682-83 (1985). The trial court reviewed the statement in camera and found it to be not exculpatory, but inculpatory. That finding is presumed on appeal to be correct.See One 1963 Chevrolet Pickup Truck v. Commonwealth, 208 Va. 506, 507, 158 S.E.2d 755, 757, cert. denied, 391 U.S. 964 (1968); Wymer v. Commonwealth, 12 Va. App. 294, 296, 403 S.E.2d 702, 704 (1991). The statement was not made a part of the record. We are afforded no basis for reviewing the trial court's determination. Therefore, we must accept it as correct.
Clarke advanced before the trial court no permissible use that he sought to make of the statement. He stated that he wanted to use it to cross-examine the officer to whom it had been given, but could cite no authority in support of that use. He also stated that he wanted to use it in the absence of Brenda Owens, or to impeach her. Although the Commonwealth did not call Brenda Owens as a witness and Clarke had not summoned her, the trial court made her available to him. He did not call her to the witness stand. Thus, she was neither unavailable nor subject to impeachment. Clarke did not proffer to the trial court, and has not suggested on appeal, any permissible use to which he could have put the statement had it been furnished him.
III.
Clarke contends that the trial court erred in denying him a ten minute recess to try to locate his law clerk, who had been sent to obtain jury instructions. The granting of a continuance, or the suspension of a trial, lies within the sound discretion of the trial court. We find no abuse of discretion in the denial of Clarke's motion. Clarke offered no good excuse for his failure to bring his proposed instructions with him to trial. He offered no explanation as to where the law clerk had gone or as to when he might be expected back. He asserted no deficiency in the body of instruction that the court had stated that it would give. He requested no further instructions or subjects of instruction. On appeal, he alludes to subjects that were not covered in the court's instructions. However, the deficiencies that he now recites were not presented to the trial court. We will not entertain them for the first time on appeal. Rule 5A:18.
We do not have before us the question of effectiveness of counsel. See Walker v. Mitchell, 224 Va. 568, 299 S.E.2d 698 (1983).
For the foregoing reasons, the judgment of the trial court is affirmed.
Affirmed.