Heath v. Com., Record No. 0203-98-2.

• Decision Date: 11 April 2000
• Docket Number: Record No. 0203-98-2.
• Citation: 526 S.E.2d 798,32 Va. App. 176
• Parties: Wayne Lenardo HEATH v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

526 S.E.2d 798

32 Va. App. 176

Wayne Lenardo HEATH v. COMMONWEALTH of Virginia.

Record No. 0203-98-2.

Court of Appeals of Virginia, Richmond.

April 11, 2000.

Mary Katherine Martin, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, COLEMAN, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, LEMONS¹ and FRANK, JJ.

UPON A REHEARING EN BANC

ANNUNZIATA, Judge.

On July 6, 1999, a panel of this Court reversed the murder conviction of Wayne Lenardo Heath based on its view that appellant's statutory right to a speedy trial pursuant to Code § 19.2-243 had been violated. The Commonwealth filed a petition for rehearing en banc, which we granted on August 20, 1999. Upon rehearing, we affirm the decision of the trial court.

BACKGROUND

The record establishes that the Juvenile and Domestic Relations District Court of the City of Petersburg held a preliminary hearing on March 20, 1997, and found probable cause to believe Wayne Lenardo Heath committed first-degree murder. The grand jury indicted Heath on that charge. On September 18, 1997, the circuit court set the trial date for October 15, 1997. Heath was convicted of first-degree murder at a bench trial on that date, and was sentenced on February 6, 1998 to sixty-nine years and five months in prison.

Heath remained continuously in custody from the preliminary hearing, March 20, 1997, until the trial on October 15, 1997, a period of 209 days. Absent tolling of the statute, he should have been tried within 152 and a fraction days. See Moten v. Commonwealth, 7 Va.App. 438, 441, 374 S.E.2d 704, 706 (1988)

.

On May 6, 1997, the parties appeared in the circuit court on the Commonwealth's motion to compel the taking of a blood sample from Heath "for scientific comparison." Although the record contains no written motion, the trial judge entered an order on May 15, 1997, granting the motion and ordering Heath to give the blood sample. The order, which is endorsed by both counsel without objection, contains no request for a continuance and grants no continuance. The record also contains an order entered July 8, 1997, which duplicates the earlier order that Heath give a blood sample. The July 8, 1997 order also contains the notation that "[i]t is further ordered that the case be continued until May 15, 1997, at 11:00 a.m. to be reset for trial."² This order was not endorsed by counsel and does not reflect whether either attorney requested the continuance.

On August 1, 1997, the trial court granted Heath's motion requesting a psychiatric evaluation to determine his competency to stand trial and ordered an evaluation. From the entry of the court's order until September 10, 1997, when Heath received the results of the evaluation, he could not proceed to trial. At the circuit court's next docket call on September 18, 1997, the case was set for trial on October 15, 1997, fifty days beyond the five-month period.³

The time limitation for the commencement of felony trials is governed by Code § 19.2-243,⁴ which provides, in relevant part:

Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court....

"When an accused asserts that he has been denied a speedy trial, the burden is on the Commonwealth to explain and excuse the delay." Adkins v. Commonwealth, 13 Va. App. 519, 521, 414 S.E.2d 188, 189 (1992). "[I]t is the prosecution which has the responsibility of vindicating society's interests in swift and certain justice, and the burden of demonstrating that a delay in commencing trial is excused under Code § 19.2-243 lies upon the Commonwealth." Robinson v. Commonwealth, 28 Va.App. 148, 153, 502 S.E.2d 704, 706 (1998) (citations omitted). "The Commonwealth must prove that the delay was based on `one of the reasons enumerated in [Code § 19.2-243] or on [the accused's] waiver, actual or implied, of his right to be tried within the designated period.'" Powell v. Commonwealth, 29 Va.App. 745, 748, 514 S.E.2d 785, 787 (1999) (citation omitted). If the Commonwealth fails to meet these burdens, the statute requires discharge of the prosecution. See id.

ANALYSIS

To decide the question presented, we look to the court's orders explaining the delays in proceeding to trial. See Guba v. Commonwealth, 9 Va.App. 114, 118, 383 S.E.2d 764, 767 (1989)

. We may also look to the rest of the record to assess the responsibility for delay that caused "the failure to try the accused," Stinnie v. Commonwealth, 22 Va.App. 726, 729, 473 S.E.2d 83, 84 (1996) (en banc), within the time frame mandated by statute. See Baity v. Commonwealth, 16 Va.App. 497, 503, 431 S.E.2d 891, 894-95 (1993) ("Although [the court's] orders facilitate the assessment of responsibility for delay and the determination of the merits of a Code § 19.2-243 claim, such orders do not and should not limit the scope of appellate review.").

Delays in the trial were caused by both the Commonwealth and the defendant. During the delay occasioned by the Commonwealth's motion for a blood test, Heath's motion for a psychiatric examination was granted, necessitating a trial delay until he stood ready to proceed. Thus, notwithstanding the Commonwealth's responsibility for delaying the trial for the purpose of obtaining a blood test, Heath made clear that he was not ready for trial. The delay caused by Heath's motion for a psychiatric examination is, therefore, properly chargeable to him.⁵ See Moten, 7 Va.App. at 444,

374 S.E.2d at 707; see also Jones v. Commonwealth, 13 Va.App. 566, 569-71, 414 S.E.2d 193, 194-95 (1992).

As we have stated previously,

[w]hen the defendant requests and is granted a continuance for an indefinite period of time, the speedy trial period will not recommence until the defendant announces to the Commonwealth that he stands ready for trial. "[W]here the accused affirmatively acts and invites the delay in the commencement of trial by such motion, there is no violation of his speedy trial right."

Jefferson v. Commonwealth, 23 Va.App. 652, 657, 479 S.E.2d 80, 82 (1996) (quoting Stinnie, 22 Va.App. at 730, 473 S.E.2d at 85) (additional citations omitted). The delay in this instance was for Heath's benefit, and, notwithstanding the absence of a formal motion to continue the matter to permit a psychiatric examination to be conducted, the de facto continuance which resulted was caused by his action. See Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22, 27-28 (1983)

(although defendant did not move for a continuance, he was responsible for the delay because he filed a motion to suppress which necessitated a slow-down in the judicial process); see also Jones, 13 Va. App. at 569-71,

414 S.E.2d at 194-95; Moten, 7 Va.App. at 444,

374 S.E.2d at 707.

Calculating the time from August 2, 1997, the day following the date Heath's motion was filed and the court's order was entered, see Randolph v. Commonwealth, 22 Va.App. 334, 335-36, 470 S.E.2d 132, 133 (1996),

to October 15, 1997, the date Heath was tried, produces a total chargeable delay of 75 days. See Stinnie, 22 Va.App. at 728-30,

473 S.E.2d at 84-85 (defendant's continuance did not end at term day, but rather on the date trial was set). As such, the delay is properly chargeable to Heath and tolled the time limitations imposed under Code § 19.2-243.

When the period of delay occasioned by Heath's motion for a psychiatric evaluation is subtracted from the total period of delay, it is manifest that Heath was tried within the five-month period required by statute. Thus, for the reasons stated, we affirm the conviction.

Affirmed.

BENTON, Judge, with whom Coleman, J., joins, dissenting.

The Juvenile and Domestic Relations District Court of the City of Petersburg held a preliminary hearing on March 20, 1997, and found probable cause to believe Wayne Lenardo Heath committed the charged murder. The grand jury indicted Heath for first degree murder. On September 18, 1997, six months after the finding of probable cause, the trial judge set the initial trial date for October 15, 1997. Heath remained continuously in custody from the preliminary hearing until the trial on October 15, 1997, a period of 209 days. I would hold that the delay in trying Heath within the 152 days required by statute is chargeable to the Commonwealth.

The statute governing the time limitation for the commencement of felony trials provides as follows:

Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court....

Code § 19.2-243. "If [the accused] is not tried within the time specified in Code § 19.2-243, the burden is on the Commonwealth to explain the delay." Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). To avoid the statutory remedy of discharge from prosecution, "[t]he Commonwealth must prove that the delay was based on `one of the reasons enumerated in [Code § 19.2-243] or on [the accused's] waiver, actual or implied, of his right to be tried within the designated period.'" Baker v. Commonwealth, 25 Va.App. 19, 22, 486 S.E.2d 111, 113, aff'd on reh'g en banc, 26 Va.App. 175, 493 S.E.2d 687 (1997)

(citation omitted).

Heath's trial was not commenced within five months from the date the judge of the juvenile court found probable cause. "The five month period is computed...