Kelley v. Com., 0773-92-4

• Decision Date: 11 January 1994
• Docket Number: No. 0773-92-4,0773-92-4
• Citation: 439 S.E.2d 616,17 Va.App. 540
• Parties: Michael J. KELLEY, s/k/a Michael J. Kelly v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 616

439 S.E.2d 616

17 Va.App. 540

Michael J. KELLEY, s/k/a Michael J. Kelly v. COMMONWEALTH of Virginia.

Record No. 0773-92-4.

Court of Appeals of Virginia.

Jan. 11, 1994.

Gilbert K. Davis, Fairfax, for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Stephen Rosenthal, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and KOONTZ, JJ.

COLEMAN, Judge.

In this criminal appeal, we hold that Michael J. Kelley was not denied his Sixth Amendment right to a speedy trial when a delay in prosecuting him that was attributable to the Commonwealth caused the prosecution's main witness to lack independent recollection at trial of the events surrounding Kelley's DUI arrest. We base our holding on the fact that Kelley has failed to show that the witness's lack of independent recollection prejudiced his defense. We also hold that the evidence was sufficient to sustain Kelley's conviction for DUI.

Early in the morning of November 25, 1990, Trooper Allen W. Bacote stopped and arrested Kelley for driving under the influence. Bacote transported Kelley to the Fairfax ASAP room where Elizabeth Crouch administered an alcohol breath test. The test results showed that Kelley had a blood alcohol concentration of .20 percent.

Kelley's trial was set for January 17, 1991, in the Fairfax County General District Court. On that date, the case was continued, on Kelley's motion, to February 14, 1991. On February 14, the trial was continued on the Commonwealth's motion to December 19, 1991, because the Commonwealth's primary witness, Trooper Bacote, had been called to military duty in the Persian Gulf. Bacote returned from the Persian Gulf in May, 1991, and returned to work in June, 1991. Neither Kelley nor the Commonwealth's attorney requested an earlier trial date; however, insofar as the record shows, neither Kelley nor the Commonwealth's attorney knew that Trooper Bacote had returned to work as a police officer.

On December 19, 1991, Kelley was convicted in the general district court of driving under the influence. On appeal to the circuit court, Kelley moved to dismiss the charges on the ground that he had been denied his Sixth Amendment right to a speedy trial. A hearing was held on February 28, 1992, and the trial judge denied Kelley's motion. Trial was set for March 19, 1992.

At both the pretrial hearing and at trial, Trooper Bacote testified that he had no independent recollection of having stopped and arrested Kelley apart from the notes that he recorded shortly after the arrest. Bacote wrote his notes the same day as the arrest on a standard "DUI Arrest Notes" form and an "Implied Consent Law" form. Bacote identified the handwriting on both forms as his and testified that he had made no changes in his notes after the offense. He stated that he used the same forms and procedures in all DUI arrests.

Bacote explained that he knew Kelley's breath test had been taken at the Fairfax ASAP room because that was the only place he took arrestees to be tested. He identified his initials on Kelley's Certificate of Analysis, which contained the date, November 25, 1990, the same date as Kelley's arrest. Bacote had no independent recollection of Kelley being the person that he had arrested on November 25, 1990. He testified, however, that he had never arrested anyone else named Michael J. Kelley on any other occasion. At trial, Bacote's notes were introduced into evidence over Kelley's objection as past recollection recorded.

Bacote, reading from his notes, testified that on November 25, 1990, at 6:30 a.m., he observed Kelley's vehicle pass his patrol car at a high rate of speed on Interstate 95 in Fairfax County. He paced Kelley for two-tenths of a mile at 75 miles per hour in a 55 mile-per-hour zone. Bacote observed Kelley's car veer onto the right shoulder, almost striking the guardrail. After Bacote stopped Kelley, Bacote approached Kelley's vehicle. Bacote smelled a strong odor of alcohol about the vehicle and about Kelley. Kelley told Bacote that he had not been drinking since 11:30 p.m. the night before. Kelley also said, "I'm just tired. I'm trying to get home. I know I was weaving, I'm not drunk." Kelley performed several field sobriety tests and failed all of them. Bacote offered Kelley the field alcosensor test, but he refused it. Bacote testified that he read Kelley the implied consent law and that Kelley elected to take the breath test. Bacote's notes verified that he advised Kelley of the implied consent law.

Kelley was taken to the Fairfax ASAP room, where, at approximately 7:40 a.m., Elizabeth Crouch administered a breath test. Crouch, who remembered administering the test to Kelley, testified that she detected a heavy odor of alcohol from Kelley and that his face and eyes were red. Although Bacote was not able to identify the defendant at trial as the same person he had stopped and charged with DUI, Elizabeth Crouch identified the defendant as the same person that Trooper Bacote brought to her for the breath test on November 25, 1990, identified as Michael Kelley. She testified that Kelley told her that he had his last alcoholic drink at 11:00 p.m. the night before and that he expressed disbelief when his test results read .20 percent. At the conclusion of the trial, the judge found Kelley guilty of driving under the influence.

I. SPEEDY TRIAL

"[T]he right to [a] speedy trial is a more vague concept than other procedural rights [under the Constitution]. It is ... impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). ¹ The determination of whether an accused has been denied the constitutional right to a speedy trial requires "a difficult and sensitive balancing process" in which the court examines on an ad hoc basis the conduct of both the state and the accused which led to a delay in prosecution. Id. at 530, 533, 92 S.Ct. at 2192, 2194; Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 (1978); Holliday v. Commonwealth, 3 Va.App. 612, 616, 352 S.E.2d 362, 364 (1987). Under this balancing test, four factors are to be considered in evaluating a speedy trial claim: "(1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right [to a speedy trial]; and (4) prejudice to the defendant." Holliday, 3 Va.App. at 616, 352 S.E.2d at 364. None of the four factors is either a necessary or sufficient predicate to the finding of a constitutional violation; they are related factors that "must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533, 92 S.Ct. at 2193; Holliday, 3 Va.App. at 616, 352 S.E.2d at 364.

(1) LENGTH OF THE DELAY

The length of the delay is the "triggering mechanism" for speedy trial analysis. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. Unless there is sufficient delay to be "presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Id.; see also Fowlkes, 218 Va. at 766, 240 S.E.2d at 664. "[T]he length of [the] delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of [each] case." Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192 (footnote omitted). A defendant must establish that, under the particular circumstances of his case, the length of the delay presumptively "was so detrimental as to have endangered his right to a fair trial." Beachem v. Commonwealth, 10 Va.App. 124, 131, 390 S.E.2d 517, 520 (1990). When the charge is for a misdemeanor or lesser offense, the length of delay that will be tolerated is less than that when the charge is for a more serious crime. Barker, 407 U.S. at 531, 92 S.Ct. at 2192.

Kelley was arrested on a misdemeanor charge on November 25, 1990. His trial in general district court was scheduled for January 17, 1991. Due to a series of continuances, the trial did not take place until December 19, 1991, thirteen months after Kelley was charged.

We accept the Commonwealth's concession that part of the delay in this case, during which time the Commonwealth could have brought Kelley to trial earlier, is sufficient to trigger further inquiry into whether Kelley was denied his constitutional right to a speedy trial.

(2) REASON FOR THE DELAY

When a defendant raises the presumption of prejudicial delay, the burden shifts to the "Commonwealth to show, first, what [part of the] delay was attributable to the defendant and, ... second, what part of any delay attributable to the [Commonwealth] was justifiable." Fowlkes, 218 Va. at 767, 240 S.E.2d at 664; Holliday, 3 Va.App. at 617, 352 S.E.2d at 365. The weight given to the length of the delay depends upon the reason for the delay. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. For example, a deliberate attempt to delay by the prosecutor in order to hamper the defense should be given greater weight than a more neutral reason, such as negligence or overcrowded courtrooms. Id. On the other hand, any period of delay in bringing the defendant to trial that is attributable to the defendant cannot be counted against the state in determining whether the delay was unreasonable. Id.; Taylor v. Commonwealth, 12 Va.App. 425, 428, 404 S.E.2d 86, 87-88 (1991); Shearer v. Commonwealth, 9 Va.App. 394, 399, 388 S.E.2d 828, 830 (1990).

The first delay in bringing Kelley to trial occurred in general district court when the case was continued from January 17, 1991, to February 14, 1991, on Kelley's motion. This period of delay cannot be attributed to the Commonwealth. See Shearer, 9 Va.App. at 400, 388 S.E.2d at 830-31. Similarly, the Commonwealth was justified in requesting a continuance for the period in which Trooper Bacote, their primary witness, was called to military duty in the Persian Gulf. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192. However, while a continuance was justified, the length of the delay was unnecessary. Bacote, who was unavailable to...