Powell v. Com., Record No. 1051-98-2.

• Decision Date: 25 May 1999
• Docket Number: Record No. 1051-98-2.
• Parties: Louis Jordan POWELL, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

514 S.E.2d 785

29 Va. App. 745

Louis Jordan POWELL, Jr. v. COMMONWEALTH of Virginia.

Record No. 1051-98-2.

Court of Appeals of Virginia, Richmond.

May 25, 1999.

Glenn L. Berger (Curtis L. Thornhill; Berger & Thornhill, on brief), Altavista, for appellant.

Daniel J. Munroe, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN and ELDER, JJ.

BENTON, Judge.

A grand jury indicted Louis Jordan Powell, Jr., for murder, use of a firearm in the commission of murder, and possession of a firearm after having been convicted of a felony. Prior to trial, Powell pled guilty to possessing a firearm after having been convicted of a felony. The Commonwealth did not consent to entry of a conditional plea. See Code § 19.2-254. A jury convicted Powell of the two remaining charges. On this appeal from the convictions of second degree murder and using a firearm in the commission of murder, Powell contends the trial judge erred in (1) denying his motion to dismiss because of a speedy trial violation, (2) denying his motion to suppress his statement to police because of a Miranda violation, (3) admitting into evidence unsigned notes of a deputy sheriff memorializing Powell's statement, (4) refusing to instruct the jury that parole has been abolished in Virginia, (5) instructing the jury on the elements of second degree murder, and (6) instructing the jury on the burden to prove self-defense. For the reasons that follow, we hold that Powell was not tried within the time period specified in Code § 19.2-243, and we reverse both convictions and dismiss the indictments.

I.

The record established that officers of the Halifax County Sheriff's Department arrested Louis Jordan Powell, Jr., on January 26, 1996, on four warrants charging Powell with first degree murder of a juvenile, discharging a firearm within a building, using a firearm in the commission of murder, and possessing a firearm after having been convicted of a felony. On March 19, 1996, a judge of the juvenile and domestic relations district court found probable cause to believe Powell committed the offenses and certified the matters to the grand jury. Powell was taken into custody March 19, 1996, and has remained continuously in custody.

In May 1996, the grand jury indicted Powell for murder, use of a firearm in the commission of murder, and possessing a firearm after having been convicted of a felony. The record indicates that the only order entered in the circuit court after the return of the indictments and before trial was an order relieving Powell's initial trial attorney from his representation and substituting another attorney to represent Powell. On October 8, 1996, Powell's attorney filed a motion pursuant to Code § 19.2-243 "to discharge [Powell] from prosecution for failure to commence trial within five (5) months from the date probable cause was found." On October 9, immediately prior to the commencement of trial, the trial judge heard evidence on the motion and denied the motion. After considering other motions, the trial judge arraigned Powell. Powell pled guilty to the charge of possessing a firearm after having been convicted of a felony. He pled not guilty to murder and use of a firearm in the commission of murder. At the conclusion of the evidence, the jury convicted Powell of second degree murder and use of a firearm in the commission of murder.

II.

As pertinent to this appeal, 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).

Powell's trial was not commenced within five months from the date the judge of the juvenile court found probable cause. Following an evidentiary hearing, the trial judge found "that there was a continuance [and] that it was on the motion of [Powell]." See Code § 19.2-243 (exempting "such period of time as the failure to try the accused was caused ... [b]y continuance granted on the motion of the accused or his counsel"). The record, however, does not support the trial judge's findings.

At the evidentiary hearing, Tina Englebright, an employee of the Commonwealth's Attorney's office who is not an attorney, testified that she had been given the responsibility of "setting the circuit court docket." In this capacity, she received a list of available trial dates from the circuit court judge and then contacted the attorneys involved in the cases to coordinate their available trial dates. Englebright prepared a spread sheet with the defendant's name, charge, attorney and a speedy trial date, and she noted on the spread sheet the agreed upon or convenient trial date. After Englebright completed the spread sheet, she delivered it to the clerk's office. Englebright testified...