COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Frank and Senior Judge Bray 

Argued at Chesapeake, Virginia 

ARTHUR LEE CARTER, JR. 

 OPINION BY 

v. Record No. 0223-02-1 JUDGE ROBERT P. FRANK 

 FEBRUARY 25, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Johnny E. Morrison, Judge 

 LeeAnne Bierowicz (Bierowicz & Ringer, on 

brief), for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

Arthur Lee Carter, Jr. (appellant) was convicted by a jury of 

voluntary manslaughter, in violation of Code § 18.2-35, unlawful 

wounding, in violation of Code § 18.2-51, and unlawful discharge 

of a firearm into an occupied dwelling, in violation of Code 

§ 18.2-279. On appeal, he contends the trial court erred in (1) 

not granting him a continuance to explore further evidence, (2) 

not allowing defense counsel to withdraw, and (3) not allowing a 

witness to testify after she invoked her Fifth Amendment right 

against self-incrimination. For the reasons stated, we reverse. 

BACKGROUND

 These offenses arose from a shooting on October 2, 1996, 

outside 284 Wilson Parkway, Portsmouth, the home of Hazel Gatling. 

Gatling, who was in her home, heard arguing outside her residence. 

She looked out her front door and saw a lot of people, including 
appellant, Jeffrey Hughes, and Shaline Holley, her next-door 

neighbor. Gatling testified Hughes and Holley had once lived 

together in the house next door. Holley was appellant's current 

girlfriend. Gatling saw appellant and Hughes "fussing and 

fighting and stuff." She could not recall whether Holley 

participated in the argument. 

 Gatling went upstairs to change her clothes. When she 

returned downstairs, she heard three shots. She then realized she 

was shot in her "upper leg, upper thigh." When she was observing 

the argument outside, Gatling did not see any weapons. 

 Gerard Waters testified he was on his grandmother's porch 

"lollygagging" and "hustling" at the time of the shooting. He 

observed Holley near two men who were arguing. Waters testified 

he was approximately forty to fifty feet away from the argument. 

Waters recognized the men as appellant and Hughes, having 

frequently seen both men in the area. According to Waters, the 

argument escalated into a physical fight. In the course of the 

altercation, appellant pulled out a gun and fired two or three 

shots in the direction of Hughes. Waters then saw Hughes fall to 

the ground. 

 The police found Hughes dead at the scene of the argument. 

He had been shot once in the head. The autopsy confirmed the 

cause of death was "a single close range gunshot wound to the left 

side of the head." 

 Immediately before trial on November 26, 2001, appellant's 

counsel moved for a brief continuance, stating: 

Some information has come to light to me 

this morning that clearly is exculpatory in 

nature, one that I was not privy to prior to 

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this morning, information that now that I'm 

in possession of that information, I'm 

unprepared to go forward. 

* * * * * * * 

This case had originally been in the Public 

Defender's Office and through the course of 

their investigation, their investigator has 

spoken to Ms. Holley. I also had spoken to 

Ms. Holley in my office since I was 

appointed, since the P.D. withdrew and I was 

appointed. In those statements, and there 

is no reason to disbelieve, she indicates 

that she was present at the scene of the 

alleged murder. She was engaged in a 

domestic dispute with [Hughes] at the time 

of the shooting. She, in fact, said that 

she heard gunshots and was, in fact, shot 

herself during the incident. As such, we 

had subpoenaed her for trial today. In 

speaking with her this morning before trial, 

she's indicated – she confessed to the 

murder. 

* * * * * * * 

I would not be prepared to go forward on 

behalf of my client who stands accused of 

these charges without further investigation. 

If she gets on the stand and takes the 

Fifth, then I would need to have to withdraw 

so I can testify as to her incriminating 

statement that she made to me out in the 

hall. 

I would ask the Court for a brief 

continuance, possibly to have an 

investigator or an independent party 

appointed so that we both could talk to Ms. 

Holley and notes be taken. I imagine since 

the ideal is to produce justice and have the 

right person at trial that the Commonwealth 

would like the opportunity to speak with her 

also. 

 The Commonwealth responded: 

Well, Judge, we're ready for trial this 

morning. We've got our witnesses here. 

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We're prepared to go forward, however as 

much as the thought of a continuance 

displeases me, it seems that we do have a 

duty to investigate. 

 While the Commonwealth did not oppose the continuance,1 the 

trial court denied the motion. The court also denied counsel's 

motion to withdraw, noting she could renew the motion at a later 

time. The trial court then appointed counsel for Holley. 

 Excepting to the trial court's rulings, counsel argued: 

You're putting me in a position that I 

cannot fully represent my client to the best 

of my ability. My hands are tied. This 

information was given to me this morning. 

If I had known this information earlier, it 

would have affected my trial strategy. It 

would have affected my investigation of this 

case, and I'm not prepared to go forward. 

 After the Commonwealth rested, appellant attempted to call 

Holley as a witness in his behalf. Holley's attorney advised the 

court that Holley intended to exercise her Fifth Amendment 

privilege against self-incrimination. Although not under oath, 

Holley confirmed her intention to invoke her Fifth Amendment 

privilege. 

 Defense counsel sought to call Holley to the stand, question 

her before the jury, and obtain a question-by-question ruling 

from the trial court as to the validity of her assertion of the 

privilege. The Commonwealth objected. The trial court refused 

to allow appellant to put Holley on the stand, stating, "I'm not 

going to allow you to ask her in front of the jury about anything 

 1

 When the judge asked if the Commonwealth joined in the 

motion for a continuance, the prosecutor responded, "[W]e're 

still ready to go forward this morning." 

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about this case that maybe she exercises her right not to testify 

about. I'm going to honor that." 

 Appellant's counsel then moved to withdraw, thereby 

permitting her testimony regarding Holley's statement that 

morning. The trial court denied that motion as well. Counsel 

also indicated the examination of Holley could be conducted 

outside the presence of the jury. The trial court denied this 

request. Appellant did receive leave from the court to make a 

subsequent proffer of the questions she intended to ask Holley. 

Pursuant to the court's ruling, counsel made a post-trial proffer 

of the proposed questions and the anticipated answers. The court 

considered the proffer timely made. 

 Initially, the proffer included the following questions and 

answers2: 

 2

 The proffered answers appear in brackets following the 

question. 

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Please state your name. [Shaline Holley.] 

Do you know Arthur Lee Carter, Jr.? [Yes.] 

What is your relationship with him, Arthur 

Lee Carter, Jr.? [Boyfriend.] 

What was your relationship with him in 

October of 1996? [Family friend.] 

Do you know Jeffrey Hughes? [Yes.] 

What was your relationship with him, Jeffrey 

Hughes, in October of 1996? [Ex-boyfriend.] 

Where did you live in October of 1996? [283 

Jeffrey Wilson.] 

On October 2, 1996, did you have occasion to 

see Jeffrey Hughes? [Yes.] 

Where? [In front of my apartment.] 

Was there any interaction between you and 

Jeffrey Hughes? [Yes.] 

Describe the encounter. [He approached me, 

he being Jeffrey Hughes, and wanted to talk 

about my kids. He wanted to take them out. 

I said no. He grabbed me. I tried to walk 

away. He followed and came to be physically 

violent with me.] 

Were you injured during the incident? [Yes, 

I was shot in the hand.] 

Prior to the incident, did you see Arthur 

Lee Carter in Jeffrey Wilson [Housing 

Development]? [No.] 

During the incident, did you see Arthur Lee 

Carter in Jeffrey Wilson [Housing 

Development]? [No.] 

How did the encounter between you and 

Jeffrey Hughes end? [He was shot.] 

 Appellant's counsel contended none of the responses to these 

questions would have incriminated Holley. She noted Holley 

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previously had provided this information to the police, and the 

answers were corroborated "to some extent" by witnesses. 

 Appellant's counsel further proffered the following 

questions and answer: 

Did you see who shot him? [Yes.] 

Who and why?3

Counsel conceded "then we would have been getting into the 

territory that any possible answers she would have given may have 

incriminated her." 

ANALYSIS

A. Motion to Continue 

 Appellant contends the trial court erred in not granting him 

a continuance when, the morning of the trial, Holley confessed to 

the murder. As a corollary, appellant maintains, since Holley 

confessed to his counsel and then invoked her Fifth Amendment 

right to not incriminate herself, the trial court erred in not 

allowing counsel to withdraw. 

 The Supreme Court of Virginia has summarized the standard 

for appellate review of motions to continue: 

Whether to grant or deny a continuance of a 

trial is a matter that lies within the sound 

discretion of a trial court, and its ruling 

will not be reversed on appeal unless it is 

plainly wrong. Lomax v. Commonwealth, 228 

Va. 168, 172, 319 S.E.2d 763, 765 (1984); 

Parish v. Commonwealth, 206 Va. 627, 631-32, 

145 S.E.2d 192, 195 (1965). A court must 

exercise this discretion in a manner that 

 3

 Counsel did not proffer a specific response to this 

question. However, based on counsel's representations prior to 

the trial, the court could infer Holley's response to this 

question would incriminate her. 

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does not prejudice a defendant's right to a 

fair and impartial trial or deprive him of 

his constitutional right "to call for 

evidence in his favor." Va. Const. art. I, 

§ 8; Lomax, 228 Va. at 172, 319 S.E.2d at 

765; Gilchrist v. Commonwealth, 227 Va. 540, 

545-46, 317 S.E.2d 784, 787 (1984). A 

defendant's right to call for evidence in 

his favor guarantees him sufficient time to 

investigate and evaluate the evidence in 

preparation for trial. Lomax, 228 Va. at 

172, 319 S.E.2d at 765. However, the need 

to investigate and evaluate the evidence and 

the prejudice allegedly resulting from the 

denial of a continuance cannot be based upon 

mere speculation. Stewart v. Commonwealth,

10 Va. App. 563, 569, 394 S.E.2d 509, 513 

(1990). Thus, absent a showing of prejudice 

to a defendant by the denial of a 

continuance, an appellate court will not 

find that a trial court abused its 

discretion. 

Cardwell v. Commonwealth, 248 Va. 501, 508-09, 450 S.E.2d 146, 

151 (1994). The Court has also noted, "An ideal system of laws 

would be one in which speedy justice is administered, but justice 

and not speed should be its paramount purpose." Smith v. 

Commonwealth, 155 Va. 1111, 1117, 156 S.E. 577, 579 (1931). 

 When reviewing the denial of a motion to continue, we 

consider several factors. 

In determining whether the trial court 

properly exercised its discretionary powers, 

we look to the diligence exercised by the 

moving party . . . . As well, we must 

determine if there is anything "in the 

circumstances to warrant the conclusion that 

the real purpose in moving for a continuance 

is to delay or evade trial and not to 

prepare for it." Myers & Axtell, Receivers 

v. Trice, 86 Va. 835, 838, 11 S.E. 428, 429 

(1890). 

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Cherricks v. Commonwealth, 11 Va. App. 96, 99-100, 396 S.E.2d 

397, 399 (1990). In the present case, the Commonwealth does not 

suggest the motion for a continuance was a tactic to delay or 

avoid trial or arose due to any failure of counsel to exercise 

diligence in obtaining Holley's statement. In fact, the record 

indicates the motion was made in good faith. 

 Both an investigator in the Public Defender's office and 

appellant's counsel had interviewed Holley prior to the trial 

date. While she admitted being at the scene of the shooting, 

Holley never admitted she shot Hughes. The other witnesses never 

implicated Holley. Only on the morning of the trial did Holley 

admit she shot Hughes. 

 The Commonwealth now argues appellant's counsel had 

sufficient time to investigate the case, even though this 

confession occurred just prior to trial. The Commonwealth 

contends counsel knew that Holley was present at the scene of the 

shooting, that she had a domestic dispute with the victim, and 

that Holley was shot during the incident. The Commonwealth 

contends counsel had a number of years to fully investigate 

Holley's role.4

 

 The Commonwealth's argument is unpersuasive. The 

information known to appellant's counsel did not suggest Holley 

was the shooter. Indeed, when commenting on appellant's motion 

for a continuance, the prosecutor admitted its "duty to 

investigate" Holley's new statement confessing to the crime, 

suggesting the Commonwealth also did not suspect Holley prior to 

 4

 The shooting occurred in October of 1996, and the trial 

began in November of 2001. 

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her confession on the day of trial.5

 Holley's confession was 

unexpected by both the Commonwealth and appellant. 

 Appellant was prejudiced by not being able to further 

investigate this last-second confession and to re-evaluate trial 

strategy. Appellant's counsel was not permitted time to 

re-interview the witnesses to the shooting (or even re-examine 

their prior statements) and to determine if their recollections 

of events buttressed or rebutted Holley's confession. Counsel 

did not have time to investigate whether Holley had confessed to 

anyone else. Counsel also could not approach the Commonwealth 

for further discussions regarding the charges. Counsel did not 

have time to consider use of this confession in her trial 

strategy or the requirements for admission of this confession if 

Holley invoked her Fifth Amendment right. 

 Additionally, the confession was material. Without 

peradventure, if the jury believed Holley's statement to counsel, 

then acquittal of appellant was probable. Cf. Lacks v. 

Commonwealth, 182 Va. 318, 324, 28 S.E.2d 713, 715 (1944) 

(discussing the standard for granting a continuance in cases 

where a witness is unavailable). Appellant's right to a fair 

trial and his right to produce evidence on his own behalf was 

compromised. The trial court abused its discretion in denying 

appellant's motion for a continuance. 

B. Fifth Amendment Privilege 

 

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5

 Nothing in the record suggests the Commonwealth had 

exculpatory information implicating Holley in the shooting. The 

Commonwealth provided no such information to appellant during 

discovery. 
 Second, appellant contends the trial court erred in not 

allowing counsel to examine Holley on the stand. Appellant 

claims, when a potential witness invokes the Fifth Amendment 

privilege against self-incrimination, the trial court is required 

to determine, question by question, whether each question has 

incriminating implications. Appellant argues the court should 

not allow the invocation of that privilege to terminate or 

prevent any further examination without such a determination. 

 Under the Fifth Amendment to the United States 

Constitution, a witness cannot be compelled to testify if that 

testimony would incriminate the witness. The Virginia 

Constitution also includes this protection. Va. Const., art. 1, 

§ 8. However: 

[t]he fifth amendment does not provide a 

blanket right to refuse to answer any 

questions. Once a witness asserts his fifth 

amendment right, some investigative 

questioning must be allowed, for it is well 

settled that the "prosecutor need not accept 

at face value every asserted claim of 

privilege, no matter how frivolous." Namet 

v. United States, 373 U.S. 179, 188 (1963). 

Cunningham v. Commonwealth, 2 Va. App. 358, 361-62, 344 S.E.2d 

389, 391 (1986). For example, a witness may possess 

"nonprivileged information that could be used" in the case. 

Namet, 373 U.S. at 188 (allowing the government to ask some 

questions of witnesses who had invoked their privilege against 

self-incrimination). 

 Therefore, simple invocation of the right by a witness does 

not end the responsibilities of the trial court in resolving the 

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conflict between the protection of the witness and a defendant's 

right to present evidence. 

The question whether the privilege is 

properly invoked is one for the trial court. 

As stated by the Supreme Court in Hoffman v. 

United States, 341 U.S. 479 (1951): 

"The witness is not exonerated from 

answering merely because he declares that in 

so doing he would incriminate himself -- his 

say-so does not of itself establish the 

hazard of incrimination. It is for the 

court to say whether his silence is 

justified, . . . and to require him to 

answer if 'it clearly appears to the court 

that he is mistaken.'" 

Id. at 486 (citations omitted). 

Cunningham, 2 Va. App. at 362, 344 S.E.2d at 391 (ellipsis in 

original). See also North Am. Mortgage Investors v. Pomponio, 

219 Va. 914, 918, 252 S.E.2d 345, 348 (1979). 

 To determine whether the privilege is properly invoked, a 

trial court need not demand explicit answers to all potential 

questions. As the United States Supreme Court explained: 

However, if the witness, upon interposing 

his claim, were required to prove the hazard 

in the sense in which a claim is usually 

required to be established in court, he 

would be compelled to surrender the very 

protection which the privilege is designed 

to guarantee. To sustain the privilege, it 

need only be evident from the implications 

of the question, in the setting in which it 

is asked, that a responsive answer to the 

question or an explanation of why it cannot 

be answered might be dangerous because 

injurious disclosure could result. The 

trial judge in appraising the claim "must be 

governed as much by his personal perception 

of the peculiarities of the case as by the 

facts actually in evidence." See Taft, J., 

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in Ex parte Irvine, 74 F. 954, 960 (C.C.S.D. 

Ohio, 1896). 

Hoffman, 341 U.S. at 486-87. The Supreme Court in Hoffman found, 

"In this setting it was not 'perfectly clear, from a careful 

consideration of all the circumstances in the case, that the 

witness is mistaken, and that the answer[s] cannot possibly have 

such tendency' to incriminate." Id. at 488 (quoting Temple v. 

Commonwealth, 75 Va. 892, 898 (1881)) (emphasis in original). 

 Citing Temple, the Supreme Court of Virginia agreed with 

the "general proposition" that a defendant "should have been 

permitted to pose individual questions to the witness and if 

[the witness] asserted his Fifth Amendment privilege against 

answering any such questions, then the court could have 

determined whether the answers thereto would have been 

incriminating." Worrells v. Commonwealth, 212 Va. 270, 271-72, 

183 S.E.2d 723, 724 (1971). While affirming the trial court 

because Worrells did not proffer the individual questions, id.

at 272, 183 S.E.2d at 724,6 the Supreme Court clearly opined that 

a witness who claims the privilege must answer non-incriminating 

questions. 

 Therefore, a witness cannot determine himself if he will be 

put on the stand, sworn, and examined. The Fifth Amendment 

privilege relates only to incriminating statements, not benign 

 6

 The Court found, "The defendant did not proffer to the 

trial court the individual questions he desired to pose to the 

witness. We are unable to determine, therefore, whether such 

questions would have been relevant and, if so, whether the 

witness should have been required to answer them." Worrells, 212 

Va. at 272, 183 S.E.2d at 724. 

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information and not the entirety of a witness' testimony. The 

trial court has the duty to protect the witness' Fifth Amendment 

rights, but at the same time, is obligated to "consider the 

proposed question and its incriminating implications." Gosling 

v. Commonwealth, 14 Va. App. 158, 165, 415 S.E.2d 870, 874 

(1992). 

 The trial court must determine which of the witness' 

responses may be incriminating and which are not. The court 

could proceed by means of an examination of a witness outside the 

presence of the jury. However, as noted in Hoffman, the witness 

should not be forced to answer, even in this circumstance, once 

it appears the question will elicit incriminating information. 

Alternatively, the trial court could proceed by way of a proffer 

or any other method that enables the judge to determine the 

effect of the examination. This determination, however, must 

remain within the realm of the trial court, not the witness. 

 In the instant case, appellant's counsel indicated Holley 

had relevant testimony that was not self-incriminating. Counsel 

indicated Holley had given statements to the police claiming 

appellant was not present when Hughes was shot. Such a 

statement, if given as testimony by Holley, was relevant and 

material to appellant's defense, independent of her confession. 

We do not know what Holley's response would have been, as she was 

not permitted to take the stand, but appellant proffered her 

answers to various questions, including a statement that 

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appellant was not at the scene.7

 The trial court never ruled on 

whether this response was incriminating.8 

 The Commonwealth argues the trial court correctly declined 

to allow Holley to testify because any answers she gave would 

 7

 The Commonwealth did not object to the proffer. 

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8

 Although it accepted the proffer, the trial court ruled on 

appellant's request for permission to question Holley prior to 

introduction of the proffer. In fact, given the continuance was 

not granted, appellant had no time to prepare a proffer when he 

made the request to question Holley. The court did know, 

however, that Holley had confessed to the shooting in 

contradiction of her previous statements and that her previous 

statements contained exculpatory information concerning 

appellant. 
have placed her at the center of the crime. The Commonwealth 

correctly cites Gosling for the proposition that the court must 

find "'it is perfectly clear, from a careful consideration of 

all the circumstances in the case, that the witness is mistaken, 

and that the answer cannot possibly have such tendency [to 

incriminate].'" 14 Va. App. at 165, 415 S.E.2d at 874 (quoting 

Temple, 75 Va. at 898) (emphasis omitted). However, this 

proposition presupposes the trial court considered whether the 

response or potential response to a particular question would 

tend to incriminate the witness, as the trial court did in 

Gosling, 14 Va. App. at 166, 415 S.E.2d at 874. 

 We do not suggest the trial court must have a witness who 

invokes the privilege against self-incrimination take the stand 

under all circumstances. We simply underscore Gosling's mandate 

that the court "consider the proposed question[s] and [their] 

incriminating implications." Id. at 165, 415 S.E.2d at 874. On 

remand, if Holley again invokes her privilege, the trial court 

must abide by the precepts in Gosling. The court cannot simply 

rule that one incriminating question taints the entire 

examination without considering the remaining questions. 

C. Motion to Withdraw 

 Finally, appellant argues the trial court erred in not 

allowing counsel to withdraw. Appellant contends counsel had to 

withdraw in order to enable her to testify regarding Holley's 

confession. Appellant relies, in part, on Rule 3.7(a) of the 

Virginia Rules of Professional Conduct, which states, in part, "A 

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lawyer shall not act as an advocate in an adversarial proceeding 

in which a lawyer is likely to be a necessary witness . . . ." 

The Commonwealth maintains, since counsel could not testify as to 

Holley's "bare confession," the trial court did not err. 

 Because we find the trial court erred in denying a 

continuance, we do not address whether the court should have 

relieved appellant's counsel and allowed her to testify as to the 

third-party confession. However, if the Commonwealth chooses to 

retry appellant and the same issue arises, then the trial court 

must determine, based on the facts and circumstances presented at 

the new trial, whether trial counsel is a potential witness and 

whether that potential creates a conflict in her representation. 

See Davis v. Commonwealth, 21 Va. App. 587, 593, 466 S.E.2d 741, 

743-44 (1996). 

 For example, if Holley continues to assert her Fifth 

Amendment right and if information establishes that her 

confession is reliable, then counsel's testimony may be 

admissible under the declaration against penal interest exception 

to the hearsay rule. See Randolph v. Commonwealth, 24 Va. App. 

345, 353-57, 482 S.E.2d 101, 104-06 (1997) (discussing 

declarations against penal interest). Alternatively, if Holley 

takes the stand and testifies in contradiction of her confession, 

appellant's counsel may be called to testify as an impeachment 

witness. As we are reversing the convictions on other grounds, 

we need not resolve these issues here. 

 We find the trial court erred in denying appellant's motion 

for a continuance. For this reason, we reverse the judgment of 

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the trial court and remand for further proceedings consistent 

with this opinion, if the Commonwealth be so inclined. 

Reversed and remanded.

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