Shearer v. Com., 0022-88-3

• Decision Date: 06 February 1990
• Docket Number: No. 0022-88-3,0022-88-3
• Citation: 9 Va.App. 394,388 S.E.2d 828
• Court: Virginia Court of Appeals
• Parties: Fred Alexander SHEARER v. COMMONWEALTH of Virginia. Record

Page 828

388 S.E.2d 828

9 Va.App. 394

Fred Alexander SHEARER v. COMMONWEALTH of Virginia.

Record No. 0022-88-3.

Court of Appeals of Virginia.

Feb. 6, 1990.

David D. Embrey (Johnson & Cunningham, Lynchburg, on brief), for appellant.

Linwood T. Wells, Jr. (Jan F. Hoen, Third-Year Law Student, Salem, Richard B. Smith, Asst. Atty. Gen., Mary Sue Terry, Atty. Gen., on brief), for appellee.

Panel BENTON, COLEMAN and DUFF, JJ.

COLEMAN, Judge.

Fred Alexander Shearer appeals his convictions of breaking and entering, two counts of grand larceny and three counts of petit larceny. Shearer contends (1) that the Commonwealth violated his statutory right to a speedy trial by not bringing him to trial within five months of his preliminary hearing; and (2) the trial court erred by admitting into evidence a set of keys which was illegally seized from his apartment. We conclude the trial court did not err and affirm the convictions.

Shearer was convicted of all charges by a jury on December 27, 1987. The charges arose from the late night burglary of the Lynchburg Airport on February 18, 1986. He was arrested in late February 1986 shortly after the burglary. Counsel was appointed to represent Shearer. A preliminary hearing was held on May 6, 1986, at which time the district court found probable cause to certify the charges against Shearer to a grand jury. The grand jury returned true bills against Shearer on May 12, 1986. Shearer was arraigned on July 14, 1986, and trial was set for September 24, 1986. Between the probable cause determination on May 6, 1986, and the trial of September 24, 1986, four months and eighteen days elapsed.

Before trial on September 24, defense counsel moved Judge William W. Sweeney to be allowed to withdraw on the grounds that Shearer had been uncooperative and had continuously requested that she file frivolous motions. Counsel stated that the attorney-client relationship was so unsatisfactory that she felt she could not continue to render effective legal assistance. Counsel told the trial judge that, in her opinion, Shearer was not being candid with the court when he responded, "No, I don't, personally, no," to the court's inquiry about whether he had any problems with the attorney. Counsel reported to the court that she received "countless ... collect phone calls and more letters than I can read ... ordering me to do things I think are both frivolous and harmful to his case [in Campbell County]." In direct response to the judge's inquiry whether she thought "under the circumstances" she had been "able to properly prepare his case," she responded,

No, sir, I have not, because--I have not. It's not possible for me to say gracefully all of his complaints about what has--has happened and what he wants done in order to get to what I personally consider is important, Judge.

I have spent five or six weekends and many evenings interviewing witnesses just because I could not get to them in the daytime, answering his calls and was trying to answer his letters.

Shearer acknowledged at the hearing that he had experienced some problems with counsel, but stated that he was satisfied with her representation and wished to proceed to trial. While references were made by Shearer and his counsel to Shearer's dissatisfaction in her handling of the Lynchburg appeals, the hearing and counsel's assessment concerning the attorney-client relationship and her inability to communicate with her client pertained to the Campbell County prosecution. The trial court, after hearing Shearer and his counsel, granted counsel's motion to withdraw and continued the case in order to appoint another attorney to represent Shearer. New counsel was appointed and trial dates were set on two separate occasions, both of which were continued upon motion of or with the concurrence of Shearer's trial counsel. Shearer contends, and his attorney confirms, that he did not personally consent to the two continuances. A third trial date was set for December 23, 1986, but Shearer escaped from custody on November 24, 1986, and was not recaptured by the trial date.

After Shearer was recaptured he was brought to trial on October 14, 1987. He moved the trial court to dismiss the charges because he was not tried within five months of the probable cause determination as required by Code § 19.2-243. Shearer contends that most of the delay between September 24, 1986, and his trial on October 14, 1987, was caused by his counsel being improperly allowed to withdraw and by two continuances requested or concurred in by his new counsel without his consent. He contends that none of the delay, except that while he was at large, was attributable to him and his escape occurred after he had been deprived of a speedy trial. He asserts that, as a consequence, the Commonwealth failed to try him within five months as required by Code § 19.2-243.

At trial, two employees of Chautauqua Airlines testified that they had secured the Lynchburg airport terminal building on February 18, 1986, prior to leaving around 1:00 a.m. An employee of Airport Limousine testified that when he arrived at the terminal around 5:00 a.m., he found the office doors of National Car Rental and Airport Limousine had been "jimmied." He discovered a metal box lying on the floor. Representatives of businesses located in the terminal discovered a safe missing from Hertz Rent-A-Car, a set of car keys missing from Avis Rent-A-Car, and an unspecified amount of money stolen from the businesses.

Four days later, on February 22, 1986, Officer E.M. Williams answered an alarm call at the Southport Mall in Lynchburg. Williams found a gray Mercedes parked in the mall parking lot. When Williams approached the closed mall, he observed an intruder inside. He gave chase, but the intruder escaped. A check with the Division of Motor Vehicles determined that the Mercedes in the mall parking lot was registered to Fred Alexander Shearer and his wife. Officer W.D. Torbert testified that the Mercedes was seized as part of the criminal investigation and when he conducted an inventory search of the vehicle he found a safe in the trunk, which was identified as the safe stolen from the Hertz Rent-A-Car office during the airport terminal burglary. A warrant was obtained to search Shearer's apartment for items related to the break-in at the Southport Mall. The warrant specified that the search was for clothing matching that which Officer E.M. Williams had seen the intruder wearing. While searching through a dresser in Shearer's apartment, Officer Viar discovered in one drawer a metal cash box which matched the description of one which had been described at a police roll call as stolen during the airport burglary. Officer Viar opened the metal box and found a set of keys inside which were identified as those stolen from the Avis Rent-A-Car office in the airport burglary. Officer Viar stated that when he arrested Shearer, Shearer stated that he had purchased the metal box to resell but that he knew it had been stolen. He did not identify the alleged seller. At trial, Shearer did not testify. The jury convicted Shearer on all six charges related to the airport burglary.

I. Speedy Trial

Code § 19.2-243 provides that an incarcerated accused held continuously in custody shall be brought to trial within five months after a general district court finds probable cause to believe that the defendant has committed a crime. The Commonwealth has legislatively defined the duty to provide an accused a speedy trial, "and an accused may stand mute without waiving his rights so long as his actions do not constitute a concurrency in or necessitate a delay of the trial." Moten v. Commonwealth, 7 Va.App. 438, 441, 374 S.E.2d 704, 706 (1988). Thus, when a defendant has shown that he or she has not been brought to trial within the statutory period, the Commonwealth has the burden to satisfactorily explain the delay or the prosecution will be dismissed. Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984). Any delay in the trial, however, which is attributable to the defendant will not be counted in determining whether the Commonwealth complied with the statutory speedy trial mandate. O'Dell v. Commonwealth, 234 Va. 672, 681, 364 S.E.2d 491, 496, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988).

Code § 19.2-243 enumerates reasons for a delay which will be attributable to the defendant. The "enumerated exceptions are not all-inclusive; others of a similar nature may be implied.... The exceptions, both express and implied, often look to the defendant's actions which tend to delay the trial." Cantwell v. Commonwealth, 2 Va.App. 606, 610, 347 S.E.2d 523, 525 (1986) (citations omitted). One of the statutorily specified exceptions is delay caused by a continuance requested or concurred in by the defendant. Code § 19.2-243(4). Therefore, to the extent that the defendant requested or concurred in any delay, Corey v. Commonwealth, 8 Va.App. 281, 284-85, 381 S.E.2d 19, 20-21 (1989), that time will be excluded in determining whether the trial took place within the mandated time period. If the defendant caused the delay through his action, that time will not be considered in computing compliance with the speedy trial statute. Moten, 7 Va.App. at 442, 374 S.E.2d at 706.

We find that the Commonwealth met its burden of proving that the delay in bringing Shearer to trial between September 24, 1986, and October 14, 1987, was attributable to the defendant. The statutory speedy trial requirements began to run on May 6, 1986, when the general district court found probable cause to certify the charges. Shearer, who remained incarcerated, was scheduled for trial on September 24, 1986, which would have complied with the five month requirement of Code § 19.2-243. The delay after that date was that caused by the need to replace defense counsel and by the two continuances requested or agreed to by defense counsel without the...