Darryl Leon Hunter v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Willis, Bray and Overton
Argued at Norfolk, Virginia
DARRYL LEON HUNTER OPINION BY
v. 	Record No. 1154-95-1 	JUDGE JERE M. H. WILLIS, JR.
OCTOBER 15, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Richard C. Kerns, for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his convictions of murder, malicious maiming,
and the use of a firearm in the commission of those felonies,
Darryl Leon Hunter contends that the trial court erred by
conducting a view of the crime scene in his absence, without
advising him of his right to be present and without securing a
waiver of his right to be present. 	Because the record discloses
that Hunter waived his right to be present at the viewing, we
affirm the judgment of the trial court.
An accused on trial for a felony has the right to be present
in person during the trial. 	Code § 19.2-259. 	The phrase "during
the trial" means "'every stage of the trial from [the accused's]
arraignment to his sentence, when anything is to be done which
can affect his interest.'" 	Jones v. Commonwealth, 227 Va. 425,
428, 317 S.E.2d 482, 483 (1984) (citation omitted). 	This
definition encompasses a view of the crime scene, but the right

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may be waived. 	Id. at 430, 317 S.E.2d at 485. 	However, the
waiver must be given knowingly and intelligently and with
sufficient awareness of its likely consequences. 	Hunter v.
Commonwealth, 13 Va. App. 187, 192, 409 S.E.2d 483, 486 (1991).
Charged with one count of murder, three counts of malicious
maiming, and four counts of using a firearm in the commission of
the predicate felonies, Hunter waived trial by jury and submitted
to a bench trial, which began March 30, 1995. 	At the conclusion
of the evidence, but before argument, the following dialogue took
place:
Defense Counsel: 	I would think the Court
would want to go to the
scene if the Court wishes
to go to the scene, Your
Honor. 	I think it would
be important.
The Court: 	All right, gentlemen.
Approach the Bench.
Commonwealth's Attorney: 	I'd submit the matter of the
view of the scene, Judge.
(Counsel approached the Bench.)
The Court: 	The case is continued to
Tuesday morning, 9:30.
The court reporter did not report the bench conference. 	No
statement of facts reporting the substance of that conference has
been submitted. 	The orders memorializing the proceedings of
March 30, 1995 provided, in pertinent part:
And the evidence of the defendant being concluded, the
rebuttal evidence of the Commonwealth being heard, the
Court continues this matter until April 4, 1995 at 9:30
a.m. to allow the Court to view the crime scene.

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The trial reconvened April 4, 1995 at 9:30 a.m. 	The trial
judge stated:
I have been to the scene. 	The Court is prepared to
hear your brief closing arguments.
Hunter advanced no objection to the trial court's visit to the
crime scene or to any circumstance related to that visit.
Counsel proceeded with argument on the merits of the case,
following which the trial court found Hunter guilty. 	The final
order of sentence was entered May 22, 1995.
On May 25, 1995, Hunter gave notice of his appeal to this
Court. 	On September 14, 1995, on motion of the Commonwealth's
Attorney and upon notice to Hunter's counsel, the trial court
entered an order nunc pro tunc March 30, 1995, enlarging upon its
previous March 30, 1995 orders and providing, in pertinent part,
as follows:
And the evidence of the defendant being concluded, the
rebuttal evidence of the Commonwealth being heard, the
Court advised the defendant that the Court would view
the crime scene and after discussion with counsel
regarding the issue, the defendant did waive his right
to be present at said viewing as did counsel for the
defendant and the attorneys for the Commonwealth.
Code § 8.01-428(B) provides:
Clerical mistakes in all judgments or other parts of
the record and errors therein arising from oversight or
from an inadvertent omission may be corrected by the
court at any time on its own initiative or upon the
motion of any party and after such notice, as the court
may order. 	During the pendency of an appeal, such
mistakes may be corrected before the appeal is docketed
in the appellate court, and thereafter while the appeal
is pending such mistakes may be corrected with leave of
the appellate court.

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Because these appeals had been docketed when the September
14, 1995 orders were entered, the Commonwealth has moved for
leave of this Court to incorporate those orders into the record.
Hunter has objected and has moved to quash the September 14,
1995 orders, contending that because his alleged waiver of the
right to be present at the trial court's view of the crime scene
was not memorialized contemporaneously in the March 30, 1995
trial orders, any such waiver was not effectively received by the
trial court and that such a waiver cannot be received and
memorialized through the agency of an order nunc pro tunc.
Code § 8.01-428(B) covers more than errors committed by
court clerks. 	It authorizes a court to correct its own errors
and omissions. 	Nelson v. Commonwealth, 12 Va. App. 835, 837, 407
S.E.2d 326, 327-28 (1991). 	"An order entered nunc pro tunc
cannot create a fiction that an act not yet performed has already
occurred. 	Rather, the power of the trial court to amend by nunc
pro tunc order is restricted to placing upon the record evidence
of judicial action which has already been taken, but was earlier
omitted or misstated in the record." 	Holley v. City of Newport
News, 6 Va. App. 567, 568, 370 S.E.2d 320, 321 (1988) (citation
omitted).
Hunter relies on Catlett v. Commonwealth, 198 Va. 505, 95
S.E.2d 177 (1956). 	In Catlett, the trial court, in accepting a
waiver of trial by jury, failed to enter of record the
concurrence of the Commonwealth's Attorney. 	Later, depending

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upon the order that contained the omission as evidence of the
fact, the trial court entered an order nunc pro tunc reciting the
entry of record of the Commonwealth's Attorney's concurrence.
Holding that the earlier order was an insufficient factual
predicate for the entry of the order nunc pro tunc, the Supreme
Court said:
In the present case there is no issue of fact as to
whether the Commonwealth's Attorney actually concurred
in the waiver. 	The only question here is whether such
concurrence was "entered of record", and no proper
inference can be drawn from a reading of the order to
show that the concurrence of the Commonwealth's
Attorney, even if had, was "entered of record".
Id. at 508, 95 S.E.2d at 179.
The trial court in this case did not rely upon a silent
record as the predicate for the modifying assertions in the nunc
pro tunc orders. 	Rather, those assertions are the trial court's
certification of matters that transpired before it. 	The
modifying assertion does not reflect something that occurred
after the fact, but rather, recites events that occurred at the
time the order is made operative, matters that could and should
have been included in the contemporaneous order of proceedings,
but were omitted inadvertently.
We hold that the trial court did not err in entering the
orders of September 14, 1995. 	The Commonwealth's motion that
those orders be incorporated into the records in this case is
granted, and the Clerk will enter an order accordingly.
The record, as modified, discloses plainly that Hunter moved

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the trial court to view the crime scene and that upon
consultation with his attorney, he knowingly and voluntarily
waived his right to be present at that view. 	The orders of
September 14, 1995 bespeak verities. 	Nothing in the record
challenges their assertions. 	The court reporter did not report
the bench conference. 	No statement of facts relating to that
conference has been submitted.
The judgment of the trial court is affirmed.
Affirmed.