Fowlkes v. Com.

• Decision Date: 13 January 1978
• Docket Number: No. 770725,770725
• Court: Virginia Supreme Court
• Parties: Jonathan FOWLKES v. COMMONWEALTH of Virginia. Record

Page 662

240 S.E.2d 662

218 Va. 763

Jonathan FOWLKES v. COMMONWEALTH of Virginia.

Record No. 770725.

Supreme Court of Virginia.

Jan. 13, 1978.

Robert K. Caudle, Jr., Richmond (Caudle & Shapiro, Richmond, on brief), for plaintiff in error.

Thomas D. Bagwell, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

The question raised by this appeal is whether defendant was denied his constitutional right to a speedy trial. U.S.Const. amend. VI; ¹ Va.Const. art. I, § 8. ² Since the challenged delay preceded the preliminary hearing, the right defined by Code § 19.2-243 (Repl.Vol.1975) is not at issue.

Tried by the court without a jury, Jonathan Fowlkes was convicted of robbery and sentenced, by order entered February 1, 1977, to 20 years in the penitentiary with 10 years suspended. At trial, the two principal Commonwealth witnesses were the victim of the robbery and the investigating officer, both of whom also testified at a pre-trial hearing on defendant's motion to dismiss the indictment for want of a speedy trial. As developed at that hearing, the chronology of events relevant to the issue on appeal is as follows:

                Dates set for  Other dates          Events
                               -----------  ----------------------
                preliminary
                hearing
                -------------
                               2/26/75 to   Victim hospitalized
                               3/8/75       for operation
                3/6/75                      'General continuance'
                               11/10/75 to  Officer hospitalized
                               11/16/75     for injuries
                               2/ /76       Defendant incarcerated
                                            on traffic conviction
                               3/17/76 to   Victim hospitalized
                               3/31/76      for second operation
                5/7/76                      Continuance
                6/11/76                     Continuance
                6/25/76                     Continuance
                8/5/76                      Continuance
                9/3/76                      Continuance
                               9/10/76      Preliminary hearing
                                            conducted
                               2/1/77       Defendant convicted
                

All eight continuances were granted on motion of the Commonwealth. On each occasion, defendant's counsel was ready for trial and registered an objection to the motion. Defendant's formal motion to dismiss, made after the preliminary hearing, was overruled with no grounds assigned.

"We . . . identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right (to a speedy trial) . . . : Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

I. Length of Delay

The first factor does not include the four months' delay between the date of the crime and the date defendant was arrested; a suspect becomes an " accused" within the intendment of the Sixth Amendment when he is placed under arrest. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975). Here, the delay between arrest and the preliminary hearing was approximately 22 months; thereafter, nearly five more months expired before the date of trial. When the delay is so protracted as to be "presumptively prejudicial", the first factor becomes a "triggering mechanism" which necessitates "inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192. The Commonwealth concedes on brief that the delay "is sufficient to justify concern and inquiry".

II. Reason for Delay

Because, in the orderly administration of justice, some delay is unavoidable and some essential to due process, courts must inquire into the reasons for the delay. In some jurisdictions, the burden is upon the defendant to demonstrate the unreasonableness of the delay. See, e.g., Schlinsky v. United States, 379 F.2d 735, 737 (1st Cir.), cert. denied, 389 U.S. 920, 88 S.Ct. 236, 19 L.Ed.2d 265 (1967); State v. Hollars, 266 N.C. 45, 52, 145 S.E.2d 309, 314 (1965). But it is the prosecution which has the responsibility of vindicating society's interests in swift and certain justice; ³ it is the prosecution which has the duty of implementing the constitutional guarantee of a speedy trial; it is the prosecution which has ready access to the data concerning delay attributable to law enforcement personnel and court administrators; and when delay is attributable to the defendant, proof of that fact poses little problem for the prosecution. We believe, therefore, that when a defendant challenges the delay as unreasonable, the burden devolves upon the Commonwealth to show, first, what delay was attributable to the defendant and not to be counted against the Commonwealth and, second, what part of any delay attributable to the prosecution was justifiable. This rule accords with our holding in Flanary v. Commonwealth, 184 Va. 204, 210, 35 S.E.2d 135, 138 (1945), that the burden is on the Commonwealth to show that the delay proscribed by Code § 4926 (Michie, 1942) (now Code § 19.2-243) resulted from one of the causes excepted by the statute.

None of the delay in the case at bar was attributable to defendant. The reason for the first two of the eight continuances granted the Commonwealth was the Commonwealth's failure to summon its witnesses. The last five continuances were granted because the Commonwealth failed to bring defendant, incarcerated on a traffic conviction in another jurisdiction, before the court. On three of the five occasions, no order was issued; on another, the order was directed to the wrong jurisdiction; on yet another, the sheriff neglected to have defendant present when the case was called.

The general continuance, extending some 14 months, was granted upon the Commonwealth's information that the victim of the robbery was undergoing open-heart surgery. The victim testified that he had received an operation for "hiatus hernia" but had been released from the hospital two days after the general continuance was entered. Twelve months later, the victim was hospitalized for 15 days for a gall bladder operation, but he was released more than a month before the date then fixed for the preliminary hearing. During the term of the general continuance, the investigating officer was hospitalized for injuries for a period of seven days. However, he testified that, following his release (which occurred nearly six months before the continuance expired), he was able to drive, read his notes, and testify.

In summary, the only continuance granted because a material witness was unavailable was the general continuance; that witness became available a few days later; thereafter, both Commonwealth witnesses were available on each of the dates abandoned by the five continuances which followed.

The Commonwealth argues that the delays "caused by clerical errors and neglect in the Commonwealth's Attorney's office should be regarded as neutral reasons . . . and not be counted heavily against the Commonwealth."

Nothing in the record indicates that the Commonwealth intentionally delayed prosecution "to gain some tactical advantage over (defendant) or to harass (him)." United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971). Yet, while simple negligence on the part of the Commonwealth may be a "more neutral reason" than deliberate procrastination, administrative derelictions "nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. at 2192.

We are of opinion that the Commonwealth failed to carry its burden of showing justification for the delay resulting from its acts and omissions.

III. Assertion of the Right

The third Barker factor "should be neutral", the Commonwealth argues, because defendant did not formally assert his right to a speedy trial "until after the preliminary hearing". Prior to the Barker decision, many federal courts of appeals applied the "demand-waiver" doctrine. So did most state courts. See Note, The Lagging Right to a Speedy Trial, 51 Va.L.Rev. 1587, 1601 et seq. (1965). In recognition of the fact that delay often serves the "tactical advantage" of defendants, that doctrine held that any delay preceding a formal demand for trial was waived and that time did not begin to run against the government until such demand was made. Observing that "presuming waiver of a fundamental right from inaction, is inconsistent with this Court's pronouncements on waiver of constitutional rights", Barker v. Wingo, 407 U.S. at 525, 92 S.Ct. at 2189, the Barker court expressly rejected the demand-waiver doctrine:

"We reject, therefore, the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right." Id. at 528, 92 S.Ct. at 2191.

As Barker noted, Virginia was one of eight states which had already renounced the "demand rule". 407 U.S. at 524, n.21, 92 S.Ct. 2182. We have held that if the provisions of Code § 19.2-243, which is conceptually and functionally related to the constitutional guarantee, are invoked when the case is called for trial, the statutory right is not waived, even though "the accused remained silent" and "did not demand a trial" earlier. Flanary v. Commonwealth, 184 Va. at 210, 35 S.E.2d at 138. Moreover, there is "no case in Virginia which holds that the accused waives his right simply by failing to oppose a motion for a continuance made by the Commonwealth." Id. at 209, 35 S.E.2d at 137.

If the demand-waiver doctrine is not...