Heath v. Com.

• Decision Date: 02 March 2001
• Docket Number: Record No. 001090.
• Citation: 261 Va. 389,541 S.E.2d 906
• Parties: Wayne Lenardo HEATH v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

541 S.E.2d 906

261 Va. 389

Wayne Lenardo HEATH v. COMMONWEALTH of Virginia.

Record No. 001090.

Supreme Court of Virginia.

March 2, 2001.

Mary K. Martin, Petersburg, for appellant.

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

Present; CARRICO, C.J., LACY, KEENAN, KOONTZ, and KINSER, JJ., WHITING, Senior Justice.

WHITING, Senior Justice.

This appeal involves one of the tolling provisions of the speedy trial statute. Code § 19.2-243 provides that if, while awaiting trial, an accused has been incarcerated continuously for more than five months after a district court finds probable cause to believe that he has committed a felony, he shall be "forever discharged from prosecution" for that offense.

However, Code § 19.2-243(4) states in part that the five-month period is tolled during any period if the failure to try the accused was caused:

By continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth.

The dispositive issue on appeal is whether the defendant's actions in the circuit court tolled the statutory speedy trial period for at least 56 days of the total time that he remained in custody awaiting trial after his preliminary hearing.

In a preliminary hearing on March 20, 1997, the Juvenile and Domestic Relations District Court of the City of Petersburg found probable cause to believe that the defendant Wayne Lenardo Heath had committed the crime of first-degree murder and certified the charge to the grand jury. Heath was incarcerated at the time of his preliminary hearing and remained continuously in custody thereafter until his case was tried in the circuit court on October 15, 1997, a time period of five months plus 56 days after the probable cause finding in the district court.

The record discloses that during the five-month period following Heath's preliminary hearing, the circuit court entered three orders. One order, not endorsed by counsel, was entered on July 8. This order recited action taken by the court at a May 6 hearing, in which the court sustained the Commonwealth's motion that a sample of blood be taken from the defendant, and that the case be continued to May 15 to be reset for trial. Another order, which was endorsed by counsel for defendant as "Seen," was entered on May 15 and reflects the court's action in once again ordering that a blood sample be taken from the defendant. The order further provided that the defendant be given "any scientific findings" made in relation to the testing of the blood sample, but did not specify a date by which these results must be produced or set a date for trial of the case. The blood tests that were the subject of this order were conducted on October 6, and the test results were filed with the circuit court on October 10.

A third order, dated August 1, granted the defendant's motion made under Code § 19.2-169.1 for a determination of his competency to stand trial. In the order, the circuit court directed that the results of this examination be provided to counsel for the defendant by September 12. The defendant states on brief that a report containing the results of the examination was filed with the circuit court on September 10.

Although there were three "term," or "docket call," days between May 6 and August 1, the record in this case does not contain any orders other than the three described above;¹ nor does the record contain any motion requesting that the case be fixed for trial. However, the Commonwealth and the defendant are in agreement on appeal that at the term day on September 18, the circuit court ordered that the case be tried on October 15. The record does not disclose, and the defendant does not claim, that the defendant objected to the action of the court in fixing the trial date.

On October 8, the defendant filed a motion to dismiss the indictment, alleging that the Commonwealth had violated the speedy trial provisions of Code § 19.2-243. The court denied the motion on the ground that the speedy trial period had been tolled between the time of the defendant's motion for a psychiatric examination and the date fixed for the beginning of the trial.

The defendant was subsequently tried by the court, convicted of the charge, and sentenced to confinement in the penitentiary for a period of 69 years and five months. In an unpublished opinion, a panel of the Court of Appeals reversed the defendant's conviction, primarily on the ground that he was not responsible for any of the delays that occurred prior to the trial of the case. Heath v. Commonwealth, Record No. 0203-98-2, 1999 WL 1129711 (July 6, 1999). Upon a rehearing en banc, the Court of Appeals affirmed Heath's conviction, principally for the reasons assigned by the trial court. Heath v. Commonwealth, 32 Va.App. 176, 183, 526 S.E.2d 798 (2000). We granted Heath an appeal.

Heath argues that the Commonwealth must be charged with the entire delay in bringing him to trial because the Commonwealth waited until September 18 to obtain a trial date. He contends that his request for a psychiatric examination did not contain a request for a continuance and could not have tolled the statutory speedy trial period, since the blood tests requested by the Commonwealth were not completed until after he received the results of his psychiatric examination. We disagree with Heath's arguments.

The protections granted in Code § 19.2-243 may be waived. Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22, 27-28 (1983); Brooks v. Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246 (1969). When a defendant requests, agrees to, or acquiesces in an order that...