Jefferson v. Com.
| Decision Date | 22 August 2000 |
| Docket Number | Record No. 0953-99-2. |
| Citation | 532 S.E.2d 899,33 Va. App. 230 |
| Parties | Cory Alver JEFFERSON v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Douglas A. Ramseur (D. Gregory Carr; Bowen, Bryant, Champlin & Carr, on briefs), Richmond, for appellant.
Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: WILLIS and ELDER, JJ., and COLE, Senior Judge.
On appeal from his convictions in a jury trial of two counts of second-degree murder, in violation of Code § 18.2-32, and two counts of use of a firearm, in violation of Code § 18.2-53.1, Cory Alver Jefferson contends (1) that the trial court denied his statutory right to a speedy trial, (2) that the trial court erred in admitting prejudicial evidence that his companion was armed, and (3) that the trial court erred in instructing the jury as to the mandatory sentencing required for violations of Code § 18.2-53.1. Finding no error, we affirm the judgment of the trial court.
Under well-settled principles, we view the evidence in the light most favorable to the Commonwealth, granting to it all inferences reasonably deducible therefrom.
On June 25, 1998, as Jefferson's girlfriend was talking to him on the telephone, her next door neighbor, Willie Davis, listening through his open window, made derogatory comments about Jefferson. Jefferson overheard and was angered by Davis's remarks. One hour later, he arrived at Davis's home, accompanied by three friends, Rudolph Jefferson, Chauncey Brooks, and R.J. Wynn. Jefferson approached the house and asked to speak to Davis. After exchanging words through the screen door, Jefferson invited Davis to come out of the house to settle their argument. The two men began fighting. Continuing to fight, they entered the house and shut the door.
Inside the house, Davis's sisters and Brock Lewis joined the fight on Davis's behalf. Jefferson then drew a handgun and began firing. He shot Lewis in the back of the head, killing him instantly. He shot Davis in the arm and the head. Davis later died of those wounds.
During the fight, Jefferson's friends attempted to follow him into the house. Rudolph Jefferson drew a handgun and fired at the door.
The jury convicted Jefferson of two counts of second-degree murder, in violation of Code § 18.2-32, and two counts of use of a firearm, in violation of Code § 18.2-53.1. It fixed his sentence at twenty years imprisonment on each of the murder convictions, three years imprisonment on the first firearm conviction, and five years imprisonment on the second firearm conviction, a total of forty-eight years. The trial court imposed those sentences
Code § 19.2-243 provides, in pertinent part:
"The five month period is computed as 152 and a fraction days." Moten v. Commonwealth, 7 Va.App. 438, 441, 374 S.E.2d 704, 706 (1988). On August 5, 1998, the general district court found probable cause to believe Jefferson had committed two counts of firstdegree murder and two counts of the use of a firearm in violation of Code § 18.2-53.1 and certified those charges to the grand jury. Jefferson was represented at the probable cause hearing by retained counsel.
On September 14, 1998, the grand jury returned against Jefferson indictments on the four certified charges and a fifth indictment charging him with capital murder of Lewis. Jefferson's counsel did not appear at the September 14, 1998 docket call. On September 14, the trial court entered two orders. The first order directed the issuance of a capias on the direct indictment. On September 22, 1998, Jefferson was arrested on the capias. The second order appointed Jefferson's previously-retained attorneys to represent him on the capital murder charge. No date was set for further proceedings.
On September 23, 1998, Jefferson was brought before the trial court on the September 14 capiases. His counsel did not appear. His previously-retained attorneys were appointed to represent him on the murder and firearm charges and the case was continued to the October 13 docket call for the setting of a trial date.
The attorneys for the Commonwealth and Jefferson agreed to have pre-trial motions heard before the setting of a trial date. Pursuant to this agreement, the parties did not appear on October 13. Motions were heard on October 30, 1998, and the case was continued to the November 12, 1998 docket call.
On November 12, on joint motion of the Commonwealth and the defense, the case was continued generally. On November 16, 1998, on motion of the Commonwealth and the defense, the case was continued to the December 14, 1998 docket call. On December 14, 1998, the trial court set the case for trial commencing January 26, 1999.
On January 26, 1999, on motion of the Commonwealth and over defense objection, the case was continued to February 25, 1999, and trial was commenced on that day. The Commonwealth amended the capital murder indictment, which had been returned on September 14, 1998, to charge first-degree murder. It nolle prossed one of the first-degree murder indictments, as to which a preliminary hearing and probable cause determination had been conducted on August 5, 1998. Thus, one of Jefferson's second-degree murder convictions was based on an indictment returned September 14, 1998, and as to which a probable cause determination had been made August 5, 1998. The other second-degree murder conviction was based on the indictment, originally for capital murder, returned September 14, 1998, as to which there had been no preliminary hearing and probable cause determination. The two firearms convictions were based on the indictments returned September 14, 1998, as to which preliminary hearings and probable cause determinations had been conducted August 5, 1998.
Jefferson was held continuously in custody from his preliminary hearing on August 5, 1998 until the commencement of his trial on February 25, 1999.
Unless an exception to its operation applied, Code § 19.2-243 required that Jefferson's trial be commenced on or before January 4, 1999, with respect to the murder and firearm charges as to which probable cause had been determined at the preliminary hearing held on August 5, 1998. As to the murder indictment returned September 14, 1998, without a previous probable cause determination, the statute required that trial be commenced on or before February 21, 1999. The Commonwealth contends that failure to commence trial within these times was caused by continuances granted on Jefferson's motion, with his concurrence, or by his failure to make timely objection. In assessing the impact of the several delays experienced in this case on the operation of Code § 19.2-243, we focus our analysis on the distinction between delay that is inherent in the orderly process of bringing charges on for trial, and delay that is not inherent in that process. See Baity v. Commonwealth, 16 Va.App. 497, 501, 431 S.E.2d 891, 893 (1993)
.
With respect to the indictments setting forth charges as to which a preliminary hearing had been conducted on August 5, 1998, the delay from September 14 to October 13 is charged to Jefferson. September 14 was a docket call day. At that time, Jefferson had counsel of record, who had appeared and represented him, with respect to the two indictments charging murder and the two indictments charging the firearm violations. His counsel failed to appear, rendering the trial court unable to set a trial date, and, thus, of necessity, requiring a continuance to the next docket call, October 13.
Jefferson argues that, even though he had retained counsel who appeared and represented him at the preliminary hearing, his counsel's employment contract stipulated that they would not represent him if he were indicted for capital murder. That employment contract, however, was not binding on the trial court, and counsel, having appeared, were required to continue until relieved.
"Counsel of record" includes a counsel or party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he appears in the case. Counsel of record shall not withdraw from a case except by leave of court after notice to the client of the time and place of a motion for leave to withdraw.
Rule 1:5. See also Francis v. Francis, 30 Va.App. 584, 589-90, 518 S.E.2d 842, 845 (1999)
.
Jefferson's counsel never moved to be permitted to withdraw. The trial court never released them. Indeed, by its September 23 order, the trial court ordered...
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Walker v. Commonwealth
...rule to recidivist statutes that impose higher penalties for multiple convictions/offenses. See, e.g. , Jefferson v. Commonwealth , 33 Va. App. 230, 239, 532 S.E.2d 899 (2000) (recognizing that, for violations of Code § 18.2-53.1, "[t]he predicate and subsequent offenses may be prosecuted i......
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Brittle v. Com.
...is not excessive on its face, "[w]e perceive no reason to invoke the `ends of justice' exception." Jefferson v. Commonwealth, 33 Va. App. 230, 239, 532 S.E.2d 899, 903 (2000), aff'd en banc, 35 Va.App. 436, 545 S.E.2d 585 III. CONCLUSION We conclude that Brittle's failure to object to the i......
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Commonwealth v. Keen, Record No. 1786-14-3
...which of necessity brought about a delay of his trial, the delay must be attributed to the Commonwealth." Jefferson v. Commonwealth, 33 Va. App. 230, 241-42, 532 S.E.2d 899, 904 (2000) (alteration in original) (quoting Cantwell v. Commonwealth, 2 Va. App. 606, 611, 347 S.E.2d 523, 526 (1986......
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Totten v. Commonwealth, Record No. 0259-05-3 (VA 5/9/2006), Record No. 0259-05-3.
...contrary, we have consistently applied this principle in cases decided both before and after Batts. See Jefferson v. Commonwealth, 33 Va. App. 230, 239, 532 S.E.2d 899, 903 (2000), aff'd on reh'g en banc, 35 Va. App. 436, 545 S.E.2d 585 (2001); see also Mason v. Commonwealth, 16 Va. App. 26......