COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

JULIUS M. MARTIN 

 MEMORANDUM OPINION* BY 

v. Record No. 2715-95-2 JUDGE LARRY G. ELDER 

 NOVEMBER 26, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Robert G. O'Hara, Judge 

 H. Lee Townsend, III (Townsend and Bloom, 

P.L.L.C., on brief), for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Margaret Ann B. Walker, Assistant Attorney 

General, on brief), for appellee. 

 Julius M. Martin (appellant) appeals his conviction of 

malicious wounding. He makes three assignments of error. First, 

he contends that the trial court abused its discretion in denying 

his motion for a continuance when he proffered that a material 

witness was not present. Second, he asserts that the trial court 

abused its discretion in removing him from the courtroom during 

his trial as a result of his allegedly disruptive behavior. 

Third, he contends that the trial court erred in refusing to 

instruct the jury on the lesser included offense of unlawful 

wounding. For the reasons that follow, we affirm. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 I. 

 FACTS 

 Appellant, an inmate at the Greensville Correctional 

Facility, was charged with maliciously wounding another inmate on 

December 25, 1994. Following a continuance that was previously 

granted to the Commonwealth, appellant was tried on September 28, 

1995. The trial was held in a small temporary courtroom that 

measured approximately twenty feet by thirty feet and was 

occupied by twenty to thirty people during his trial. 

 At the beginning of the trial, after the swearing of the 

jury panel, appellant's counsel moved the trial court for a 

continuance on the ground that a material witness was not 

present. Although she stated that the witness was material 

because he had witnessed the alleged crime, she did not proffer 

the substance of the missing witness' testimony. The missing 

witness was not subpoenaed because he had failed to respond to a 

letter sent by appellant's counsel requesting information 

regarding the crime and because appellant had failed to inform 

his counsel that the missing witness was an eye-witness until the 

morning of his trial. The trial court denied appellant's motion. 

 Immediately after the denial of his motion for a 

continuance, appellant rose from his seat and attempted to leave 

the courtroom. After three officers restrained him, appellant 

became "vocal, loud, and disruptive." The trial court warned 

appellant three times to stop his disruptive behavior. When 
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appellant persisted in his disruptive conduct, the trial court 

became concerned for the safety of the others in the cramped 

courtroom and ordered appellant removed from the courtroom. The 

trial court then allowed appellant's counsel to speak with 

appellant in order to inform him that he would be allowed back 

into the courtroom on the condition that he cease his disruptive 

behavior. Appellant's counsel returned and stated to the trial 

court that she had explained to appellant the conditions of his 

return to the courtroom and that he risked forfeiting his right 

to be present at his trial. She also stated that appellant 

wished not to return and remained in the prison van. 

 Appellant remained in the van during his trial. Upon 

request by the trial court, appellant's counsel spoke with him at 

the conclusion of the Commonwealth's evidence, informed him of 

its content and advised him again that he could return to the 

courtroom on the condition of good behavior. Appellant again 

refused to return to the courtroom and the remainder of the trial 

was conducted outside of his presence. 

 The evidence introduced at trial was limited to two 

witnesses offered by the Commonwealth. The inmate-victim of 

appellant's attack testified that appellant approached him twice 

during the recreation period on December 25 and asked him a 

question. After the inmate answered the question a second time 

and was walking away, appellant swung at the inmate and stabbed 

him several times with a makeshift knife. The inmate, who was 
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unarmed, then ran from appellant as appellant started chasing him 

throughout the prison recreation area. The altercation ended 

when a prison guard opened a door through which the inmate fled 

and when another inmate intervened to stop appellant. A 

correctional officer who witnessed the incident testified that he 

also saw appellant chasing the inmate and stabbing him several 

times as the inmate tried to flee. 

 At the conclusion of the evidence, appellant's attorney 

proposed a jury instruction on the lesser included charge of 

unlawful wounding that the trial court refused. Instead, the 

trial court instructed the jury on the crime of malicious 

wounding and included an explanation of the element of malice. 

The jury returned a verdict of guilty. 

 II. 

DENIAL OF MOTION FOR A CONTINUANCE 

 Appellant contends that the trial court abused its 

discretion when it denied his motion for a continuance at the 

beginning of his trial. We disagree. 

 "Whether to grant or deny a continuance of a trial is a 

matter that lies within the sound discretion of the trial court, 

and its ruling will not be reversed on appeal unless it is 

plainly wrong." Cardwell v. Commonwealth, 248 Va. 501, 508, 450 

S.E.2d 146, 151 (1994), cert. denied, U.S. , 115 S. Ct. 

1826, 131 L.E.2d 747 (1995). An appellant challenging a denial 

of a continuance must show both an abuse of discretion and 
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prejudice. Id. The prejudice allegedly resulting from the 

denial of a continuance cannot be based on mere speculation and 

must appear from the record. Id.; Lowery v. Commonwealth, 9 Va. 

App. 304, 307, 387 S.E.2d 508, 510 (1990). Specifically, the 

content of a witness' expected testimony must be set forth in the 

trial record by either "(1) a unilateral avowal of counsel, if 

unchallenged; (2) a mutual stipulation of the parties; or (3) the 

taking of testimony of the witness outside the presence of the 

jury." Lowery, 9 Va. App. at 307, 387 S.E.2d at 510. 

 We hold that the denial of appellant's motion for a 

continuance was not improper. Even assuming that the trial 

court's denial of the motion was an abuse of discretion, 

appellant has failed to show any prejudice. Although appellant's 

counsel stated that the missing witness was "material," there was 

no proffer of the witness' expected testimony, either 

unilaterally or by stipulation. Thus, whether or not appellant 

was prejudiced by the denial of his motion for a continuance is a 

matter of speculation because we cannot determine whether the 

missing witness' testimony would have been in appellant's favor. 

Id. at 307-08, S.E.2d at 510; Stewart v. Commonwealth, 10 Va. 

App. 563, 569, 394 S.E.2d 509, 513 (1990). Nor can we say that 

appellant was denied the opportunity to fully investigate the 

evidence in preparation for trial. Appellant had several months 

to inform his counsel of the material nature of the missing 

witness to ensure that his counsel would subpoena the witness to 
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appear at trial. 
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 III. 

REMOVAL FROM THE COURTROOM 

 Although a person accused of a crime in Virginia has both a 

constitutional and statutory right to be present at his own 

trial,1

 this right is not absolute. Martin v. Commonwealth, 11 

Va. App. 397, 405, 399 S.E.2d 623, 627 (1990) (citing Illinois v. 

Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057, 1060-61, 25 L.Ed.2d 

353 (1970), reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L.E.2d 

80 (1970)). An accused forfeits his right to be present at his 

trial "if, after he has been warned by the judge that he will be 

removed if he continues his disruptive behavior he nevertheless 

insists on conducting himself in a manner so disorderly, 

disruptive, and disrespectful of the court that his trial cannot 

be carried on with him in the courtroom." Quintana v. 

Commonwealth, 224 Va. 127, 144, 295 S.E.2d 643, 651 (1982), cert. 

denied, 460 U.S. 1029, 103 S. Ct. 1280, 75 L.E.2d 501 (1983), 

reh. denied, 461 U.S. 940, 103 S. Ct. 2113, 77 L.E.2d 316 (1983) 

(quoting Allen, 397 U.S. at 343, 90 S. Ct. at 1060). 

 Appellant does not contend that the trial court lacked the 

power to remove him from the courtroom for contumacious behavior. 

Martin, 11 Va. App. at 405-06, 399 S.E.2d at 627 (quoting Allen, 

397 U.S. at 343-44, 90 S. Ct. at 1061) (stating that it is 

constitutionally permissible for a trial judge to remove an 

 

 1U.S. Const. amend. VI; Va. Const. art. I, § 8; Code 

§ 19.2-259 (stating that "a person tried for felony shall be 

personally present during the trial"). 
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obstreperous defendant from the courtroom until he promises to 

behave properly). Instead, appellant argues that his behavior 

was not so disorderly, disruptive, and disrespectful to warrant 

his removal from the courtroom. We disagree. 

 "The conduct of a trial and the imposition of measures 

necessary to ensure security and maintain decorum is left to the 

sound discretion of the trial court," Martin, 11 Va. App. at 405, 

399 S.E.2d at 627, and its rulings and orders will not be 

reversed on appeal unless plainly wrong. When removing a 

defendant from the courtroom or taking other measures, the trial 

court must make a record of the reasons for the choice of 

measures taken to ensure that a reviewing court may determine 

whether the trial court abused its discretion. Id. at 406, 

S.E.2d at 628. 

 In this case, it does not appear that the trial court was 

plainly wrong to remove appellant from the courtroom. The trial 

court described appellant's conduct in the record it made 

explaining the reasons for ordering his removal. It appears from 

the record that appellant's behavior "was disorderly, disruptive, 

disrespectful, and persistently contumacious in the face of 

repeated warnings" and that his removal was even more warranted 

by the cramped conditions in the courtroom. Quintana, 224 Va. at 

144, 295 S.E.2d at 652 (holding that trial court did not abuse 

discretion when it removed defendant following warnings that he 

cease verbally interrupting the proceedings). We hold that the 
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trial court did not abuse its discretion in removing appellant 

from the courtroom during his trial. 

 IV. 

REFUSAL TO GIVE JURY INSTRUCTION 

 Appellant also contends that the trial court committed 

reversible error when it refused his request to instruct the jury 

on the lesser included offense of unlawful wounding. We 

disagree. 

 "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). 

 We are unable to find any evidence in the record that 

supports appellant's theory that he attacked the victim-inmate 

without malice and in the heat of passion. The only evidence 

offered at trial concerning the attack was that appellant 

attacked the inmate with a makeshift knife after the inmate 

responded to a question. There is no evidence concerning any 

prior conflict between appellant and the inmate nor any evidence 

indicating that the inmate provoked either fear or rage in 

appellant that prompted the attack. Instead, the uncontroverted 

testimony of the inmate was that he was unarmed and did not 

retaliate after the appellant stabbed him. See id. at 26, S.E.2d 
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at 843 (holding that trial court should have given instruction on 

unlawful wounding where evidence showed that victim provoked a 

fight with the defendant minutes before defendant shot him). 

Because there is no evidence that appellant attacked the inmate 

"upon a reasonable provocation, in the heat of passion," id., we 

hold that the trial court did not err in refusing to instruct the 

jury on the offense of unlawful wounding. 

 In light of the foregoing reasons, we affirm the conviction 

of malicious wounding. 

Affirmed.