COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClan ahan and Senior Judge Fitzpatrick Argued at Salem, Virginia

TIFFANY SHANTELE SPEARS MEMORANDUM OPINION * BY v. Record No. 1692-06-3 J UDGE JOHANNA L. FITZPATRICK DECEMBER 27, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Do rsey, Judge Stuart J. Pearson (WeberPearso n, PC, on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
In this criminal appeal, Tiffany Shantele Sp ears (appellant) contends the trial court erred by denying her motion for a continuance, made the morn ing of trial, to allow her to retain counsel. Finding no error, we af firm the tr ial court. Background “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that on August 1, 2005, Spears was indicted for the first-degree murder of her three-month-old son and three counts of felony child neglect that occurred between February 11, 2005 and May 3, 2005. On May 6, 2005, Spears requested the appointment of a lawy er because she was indigent and unable to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - retain counsel. The court appointed Deputy Public Defender Roger L. Dalton who then represented her at her prelim inary hearing on May 26, 2005. On August 23, 2005, the government and appellan t jointly requested the trial court to continue two of the felony neglect charges in order for all four charges to be heard on a scheduled trial date of November 3-4, 2005. The continuance order reflected that the defense needed more time to prepare and the Commonw ealth was missing a witness. On October 17, 2005, the case was continued from its November 3-4, 2005 trial dates until February 6-8, 2006 because the “Commonwealth and Defendant have motions for expert witness appointment – Pretrial preparation time need ed.” On October 19, 2005, the c ourt granted the defense’s motion for state funds to hire an expert in the field of forensic medicine to assist in their trial preparation and to possibly testify at trial as an expert. On February 6, 2006, the case was again c ontinued because a subpoenaed defense witness, Steven Sutton, failed to appear for trial. The trial court recesse d to allow Dalton time to attempt to contact Sutton by tele phone. Sutton’s employer told Dalton that Sutton had taken a leave of absence at work apparen tly due to Sutton’s father’s hea lth and was not scheduled to be at work until the following week. The cour t continued the case until May 2, 2006 and asked Dalton to check the returns a week prior to the ne w trial date and alert the court prior to the day of trial if witnesses ha d not been located. On May 2, 2006, the morning of trial, Dalton informed the court th at three material defense witnesses were not present for trial. The court recessed “in hope s that these people are running late.” When court resumed, two of the three missing witnesses had arrived. The third witness, who was “comparatively more significan t” in Dalton’s opinion, was missing. The court issued a capias for the missing witness, Denni Winbush, and recessed until 1:30 p.m. that afternoon to allow the defense witness to appe ar. Winbush arrived at court that afternoon.- 3 - Counsel and the trial judge also had a discus sion in chambers prior to the commencement of trial concerning appellant’s wish to now re tain counsel. Spears’s family had contacted attorney Robert Rider late the previous day about representing Spears. Rider had not yet spoken to Spears and, as of the morning of trial, Ride r had not been retained by the family. Dalton proffered that Joseph Bell was the person who contacted Rider and who was now present with the money to pay Rider to represent Spears. Th e court noted that “paid or unpaid, [Rider] was not able to proceed today with tr ial.” The trial court refused to continue the case considering the number of continuances alrea dy granted, the number of witnesses present, and the difficulties “even today, with having all wi tnesses present.” Dalton stated that he was prepared to go forward with Spears’s trial on the scheduled date. Spears then acknowledged that her court-appointed attorney had “done what he had to do.” Spears said, “I co uldn’t afford $50,000 to get this lawyer before. Now I have it, and I feel that I just want a new lawyer.” When asked if she was ready for trial, Sp ears said, “I don’t have the lawyer I want, but if I have to go w ith it, that’s just what I’ll have to do.” Spears was tried and convicted of second-degree murder and three counts of felony child neglect. The trial court noted that both attorn eys had “been remarkably professional, competent, and helpful . . . throughout this case.” Analysis An accused’s right to be represented by counsel includes the right to have a court-appointed attorney if the accu sed is indigent and the right to be represented by an attorney of his/her own choosing if the accused can provid e himself/herself with counsel by his/her own

resources. Feigley v. Commonwealth , 16 Va. App. 717, 720, 432 S.E.2d 520, 523 (1993) (citing Bolden v. Commonwealth , 11 Va. App. 187, 190, 397 S.E.2d 534, 536 (1990)). This right is limited by the countervailing state interest to prosecute crimes in an orderly and expeditious- 4 - manner. Id. “A trial judge has broad discretion in determining whether a continuance to obtain counsel is necessary in order to preserve the accused’s right to assi stance of counsel.” Id. at 721, 432 S.E.2d at 523. “A trial ju dge’s decision to deny a continuance will not be reversed on appeal unless there was a clear abus e of discretion and prejudice to the defendant.” Id. (citing Lowery v. Commonwealth , 9 Va. App. 304, 307, 387 S.E.2d 508 , 509 (1990)). But see United States v. Gonzalez-Lopez , 126 S. Ct. 2557, 25 62 (2006) (once a defe ndant is erroneously denied his right to counsel of choice, “[n]o additional showing of prejudice is required to ma ke the violation ‘complete’”). Only if the tria l court makes “‘an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay’” doe s the trial court abuse its discretion and deny the accused’s right to counsel. Paris v. Commonwealth , 9 Va. App. 454, 461, 389 S.E.2d 718, 722 (1990) (quoting Morris v. Slappy , 461 U.S. 1, 11- 12 (1983)). The facts of the instant case are analogous to those in Feigley , where we held the trial court did not abuse its discretion by denying Feigley’s untimely motion for a continuance in order to obtain counsel of his own choosing. Feigley , 16 Va. App. at 722, 432 S.E.2d at 52 3. Feigley waited until the day of tria l to request a conti nuance and to inform the trial court that he intended to or might be able to retain counsel. Id. at 721, 432 S.E.2d at 523. Feigley’s tria l date was more than six months after his first attorney had been appointed and was three months after his second attorney was appointed. Id. The record contained no indication that Feigley’s at torney conducted an inadequate investigation, was unprepared for trial, or failed to pursue a vigorous defense. Id. Feigley’s only reason for requesting a continuanc e was that he had a “bas ic feeling” that his court-appointed attorney would not represen t him as ably as a retained attorney. Id. Similarly, the facts of this ca se support the conclusion that the trial court did not abuse its discretion by denying Spears’s re quest for a continuance to retain counsel. Spears requested a continuance to retain her own attorn ey on the day her case was schedul ed for trial, ov er a year after- 5 - Spears represented that she was indigent and the tria l court appointed an attorney to represent her. He did so ze alously, including filin g motions of a court-ap pointed expert in fo rensic medicine to assist her in her defense. Spear s’s case had already been continued three times on Spears’s motion, with the Commonwealth joining two of these mo tions. When the case wa s continued again on February 6, 2006, the Commonwea lth argued that the numerous medical witnesses had limited availability. The tria l court noted the difficulty in securing the presence of all the witnesses in this case, both those necessary for the Commonwealth and the defendant, and emphasized to both parties that they should be prep ared to try the case on May 2-5, 2006. On May 2, 2006, Spears’s court-appointed attorney had been her attorney for a year and repres ented that he was prepared for trial. Spears failed to make a “justi fiable request for a delay.” See Morris , 461 U.S. at 11-12. No exceptional circumstances ex isted that justified a continuance for a last minute change of counsel.
See Shifflett v. Commonwealth , 218 Va. 25, 30, 235 S.E.2d 316, 32 0 (1977). Spears’s only reason for requesting yet another continuance was so th at a retained attorney who was paid would do “more looking into a lot of things .” Spears acknowledged that he r court-appointed attorney had “done what he had to do.” The right to effective assist ance of counsel does not guarantee that Spears will be represented by a particular attorney, see Hummel v. Commonwealth , 219 Va. 252, 25 8, 247 S.E.2d 385, 388 (1978), or that Spears will have a “meaningful rela tionship” with her attorney, see Morris , 461 U.S. at 14. Furtherm ore, the record indicates that Spears’ s court-appointed attorney thoroughly investigated Spears’s case, reques ted and was granted a co urt-appointed expert in forensic medicine to assist in defending Spea rs, was prepared for trial, and vigorously defended Spears at trial. Spears was convicted of second-deg ree murder rather than first-degree murder as charged, and received a total active sentence of eleven y ears on the four charges despite the Commonwealth’s request that- 6 - Spears receive a seventy-year sentence. Sp ears’s only complaint was that she and her court-appointed attorney were not totally co mpatible. These facts are clearly distinguishable from the facts in London v. Commonwealth , 49 Va. App. 230, 638 S.E.2d 721 (2006) , where we held the tr ial court abused its discretion by denying the defendant’s request for a continuance to su bstitute counsel. In London , the defendant requested a continuance to s ubstitute retained counsel sixteen days before the scheduled trial date, the defendant had not previously requested a continua nce of the scheduled tria l date, and the public defender appointed to represent the defe ndant was not prepared for trial. Id. at 239-40, 638 S.E.2d at 725-26. This is in stark contrast to the posture of the instant case. Thus, the trial court did not abuse its di scretion by denying Sp ears’s motion for a continuance. Affirmed.