Brown v. Com.

• Decision Date: 21 December 2010
• Docket Number: Record No. 2421-09-4.
• Citation: Brown v. Com., 702 S.E.2d 582, 57 Va.App. 381 (Va. App. 2010)
• Parties: Dail W. BROWN, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

702 S.E.2d 582

57 Va.App. 381

Dail W. BROWN, Jr.

v.COMMONWEALTH of Virginia.

Record No. 2421-09-4.

Court of Appeals of Virginia.

Dec. 21, 2010.

James W. Hundley (Briglia Hundley Nuttall & Kay, P.C., on briefs), Vienna, for appellant.

Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: HUMPHREYS, McCLANAHAN and ALSTON, JJ.

ALSTON, Judge.

Dail W. Brown, Jr. (appellant) appeals his conviction of murder in the first degree. Appellant contends that the trial court erred in refusing to dismiss the prosecution against him, maintaining the Commonwealth failed to bring the case to trial within the time limits prescribed by Code §§ 19.2-241 and -243. Finding no error, we affirm appellant's conviction.

I. BACKGROUND

Appellant was convicted of murder in the first degree for the death of his father, which occurred on September 27, 2006. Because the procedural details of appellant's trial and their timing are significant to the resolution of this appeal, we will state them in detail.

In order to facilitate an understanding of the facts, we provide the following table to establish in chronological order the important events of the case, before stating them in more detail:

September 29, 2006	Appellant's father was killed.
February 13, 2007	Fairfax County Juvenile and Domestic Relations District Court found probable cause to try appellant for murder.
March 14, 2007	Appellant's initial trial date; the case was repeatedly continued, either by joint motion of appellant and the Commonwealth, or by motion of the Commonwealth to which appellant did not object. Eventually, a February 25, 2008 trial date was set.
August 21, 2007	Appellant charged with malicious wounding and unlawful wounding in an unrelated case.
December 7, 2007	The Fairfax County General District strict Court, which was presiding over appellant's preliminary hearing on the malicious wounding and unlawful wounding charges, found appellant incompetent to stand trial on the malicious wounding and unlawful wounding charges.
February 1, 2008	The Commonwealth filed a motion requesting the circuit court require appellant to state whether he intended to challenge his competency to stand trial on the scheduled trial date of February 25, 2008 on the charge of first-degree murder.
February 8, 2008	The circuit court found appellant incompetent to stand trial on the first-degree murder charge and ordered appellant committed to a hospital to be restored to competency. The circuit court removed the case from the February 25, 2008 trial docket and continued the case, without objection, to April 4, 2008.

April 4, 2008	Defense counsel reported to the circuit court that appellant had not yet been transported to a hospital for treatment because there were no beds available for him. The circuit court then continued the case without setting a definitive review date.
October 10, 2008	Dr. Rebecca Stredny, a clinical inical psychologist and Chief Forensic Coordinator of Central State Hospital, sent a letter and report concerning the wounding charges to the Fairfax County General District Court, which was presiding over appellant's preliminary hearing on the malicious wounding and unlawful wounding charges, opining that appellant had been restored and was competent to stand trial.
October 31, 2008	Dr. Stredny issued a report opining that appellant was competent to stand trial on the charge of first-degree murder. The report was accidentally sent to Fairfax County General District Court, the court presiding over appellant's malicious and unlawful wounding case, and not to the Fairfax County Circuit Court. The Fairfax County Circuit Court did not receive Dr. Stredny's report at that time.
April 24, 2009	Dr. Stredny wrote to the circuit court, noting that she had issued a report on October 31, 2008, which included her opinion that appellant was competent to stand trial on the charge of first-degree murder, but no action had been taken in the case. In response, the circuit court sua sponte set the matter for hearing on May 6, 2009.
May 6, 2009	The circuit court held a status hearing and received Dr. Stredny's report for the first time. Appellant filed a motion to dismiss the prosecution of the murder charge on statutory speedy trial grounds under Code §§ 19.2-241 and -243.
June 25, 2009	The circuit court held a hearing on appellant's motion. The circuit court denied the motion to dismiss the murder charge and ordered supplemental evaluation from Central State Hospital regarding appellant's competency to stand trial.
July 10, 2009	The circuit court found appellant competent to stand trial.
July 13, 2009	Appellant's trial began.
July 21, 2009	Appellant was convicted of first-degree murder.

[702 S.E.2d 584, 57 Va.App. 386]

In more detail, the important procedural events were as follows:

On September 29, 2006, appellant was arrested in Columbus, Ohio, and charged withthe murder of his father. He was ordered extradited to Virginia on November 11, 2006. On February 13, 2007, the Fairfax County Juvenile and Domestic Relations District Court found probable cause to try appellant for murder and referred the murder charge to the grand jury. The grand jury indicted appellant for murder on February 20, 2007, and a March 14, 2007 trial date was set. The trial was repeatedly continued, either by joint motion of appellant and the Commonwealth, or by motion of the Commonwealth to which appellant did not object, and it was eventually set for trial on July 16, 2007. Thereafter, on June 12, 2007, appellant filed notice of his intent to present an insanity defense, and the case was continued to February 25, 2008.

While the instant murder charge against appellant was pending, appellant was charged with malicious wounding and unlawful wounding on August 21, 2007, in an unrelated case.¹ On November 9, 2007, the Fairfax County General District Court, in which a pending preliminary hearing on the malicious wounding and unlawful wounding charges was to be held, ordered appellant evaluated for competency to stand trial. On December 7, 2007, Dr. Michael L. Hendricks, a psychologist, diagnosed appellant with schizophrenia and opined that appellant was incompetent to stand trial. The Fairfax County General District Court issued an order referring appellant to Western State Hospital for treatment to restore his competency, pursuant to Code § 19.2-169.2. AfterDr. Rebecca J. Lindsay, a physician in Western State Hospital's Department of Mental Health, Mental Retardation and Substance Abuse Services, issued a report concurring with Dr. Hendricks' assessment on January 1, 2008, appellant was returned to jail pending the outcome of a hearing to determine if he should be treated with medication over his objection.

On February 1, 2008, the Commonwealth filed a motion requesting the Fairfax County Circuit Court, the trial court in appellant's first-degree murder case, to require appellant to state whether he intended to challenge his competency to stand trial on the scheduled trial date of February 25, 2008 on the charge of first-degree murder. During a competency hearing in the circuit court on February 8, 2008, both defense counsel and the Commonwealth agreed that the circuit court should find appellant incompetent to stand trial on February 25, 2008, for the charge of first-degree murder, based on the evaluations from the malicious wounding and unlawful wounding case in the general district court. The circuit court found appellant incompetent to stand trial and ordered appellant committed to a hospital to be restored to competency. The circuit court removed the case from the February 25, 2008 trial docket, as it did not believe appellant could be restored to competency by that date. It continued the case, without objection, to April 4, 2008. However, on April 4, 2008, defense counsel reported to the circuit court that appellant had not yet been transported to a hospital for treatment because there were no beds available for him. The circuit court then continued the case without setting a definitive review date, stating that it would revisit the issue of appellant's competency upon receipt of reports required by Code § 19.2-169.1(D) from Central State Hospital, where appellant was to be treated.

On October 10, 2008, Dr. Rebecca Stredny, a clinical psychologist and Chief Forensic Coordinator of Central State Hospital, sent a letter and report concerning the wounding charges to Judge Lorraine Nordlund of the Fairfax County General District Court,² who was presiding over appellant'spreliminary hearing on the malicious wounding and unlawful wounding charges. Dr. Stredny opined that appellant had been restored and was competent to stand trial.

After defense counsel received Dr. Stredny's report, he wrote to her, noting that her evaluation pertained only to appellant's pending wounding charges in the Fairfax County General District Court, and not to the murder charge in the Fairfax County Circuit Court. Counsel asked Dr. Stredny to prepare an additional report for the Fairfax County Circuit Court. He copied the letterto the Commonwealth's Attorney and clerk of the Fairfax County General District Court.

Dr. Stredny issued her report on October 31, 2008, opining that appellant was competent to stand trial on the charge of first-degree murder. The report referenced the Fairfax County Circuit Court as the "Court of Jurisdiction" and Judge Klein, the judge presiding over appellant's first-degree murder case, as the trial judge. However, it was actually sent to the Fairfax County General District Court with a cover letter addressed to Judge Nordlund, the judge presiding over appellant's malicious and unlawful wounding case, and not to the Fairfax County Circuit Court and Judge Klein, as it should have been. The misaddressed cover letter and report was also sent to defense counsel and the Commonwealth's Attorney. Neither Judge Klein nor the Fairfax County Circuit Court received the letter or the...