Opinion
Record No. 1939-91-1
December 15, 1992
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK ALFRED W. WHITEHURST, JUDGE.
(Jeffrey M. Hallock, on brief), for appellant. Appellant submitting on brief.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
This criminal appeal is from convictions for malicious wounding and use of a firearm in commission of a felony. We hold that the trial court did not abuse its discretion in denying the defendant a continuance on the date of trial because of the failure of a witness to appear.
A trial court's denial of a continuance, sought in order to obtain the presence of a missing witness, will not be reversed unless the record affirmatively shows an abuse of discretion.Shifflet v. Commonwealth, 218 Va. 25, 30, 235 S.E.2d 316, 319 (1977). In determining whether a trial court has abused its discretion in denying such a continuance, we must consider "the diligence exercised by the moving party to locate the witness and secure his attendance at trial." Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 397, 399 (1990). The record in this case does not reflect that the defendant requested a subpoena for the missing witness nor does it contain a return showing that such a subpoena was served on the witness. Although counsel for the defendant proffered that a subpoena had been requested, the record does not reflect that any other efforts were made to ensure that the missing witness would be present at trial. The record reflects that the defendant exercised little diligence in locating and securing the attendance of this witness at trial. Consequently, we conclude that the trial court did not abuse its discretion in refusing to grant the continuance, and the convictions are affirmed.
Affirmed.