Stephens v. Com., 820021

• Decision Date: 11 March 1983
• Docket Number: No. 820021,820021
• Citation: 225 Va. 224,301 S.E.2d 22
• Parties: Venson Lee STEPHENS v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 22

301 S.E.2d 22

225 Va. 224

Venson Lee STEPHENS v. COMMONWEALTH of Virginia.

Record No. 820021.

Supreme Court of Virginia.

March 11, 1983.

John L. Gregory, III, Martinsville (Young, Haskins, Mann, Gregory & Young, P.C., Martinsville, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON, THOMPSON, ^* and STEPHENSON, JJ., and HARRISON, Retired Justice.

ALBERTIS S. HARRISON, Jr., Retired Justice.

The defendant contends that the lower court should have granted his motion to dismiss all charges against him because of the admitted failure of the Commonwealth to commence his trials within five months from the date of the finding of probable cause on four felony charges and within five months from the date of appeal from his convictions on two misdemeanor charges. Code §§ 19.2-241 and 19.2-243.

On October 19, 1980, Ayer's Sandwich Shop, located in Martinsville, was burglarized, and various articles of personal property were stolen therefrom. On December 5, 1980, a magistrate issued an arrest warrant, charging Venson Lee Stephens with committing the offenses. The warrant was issued upon an affidavit of Detective C.J. Evans, which affidavit reads as follows:

I received information from a person who said that Venson Stephens had talked to him and told him that he had broken into Ayer's Sandwich Shop through the back door and went inside and told him that he did take the Canon desk calculator. This person said he would testify to that fact.

Following his arrest, the defendant agreed that the officers could search the room in which he lived. As a result of this search, articles found there, and certain statements made by the defendant, other warrants were obtained charging him with three additional burglaries and four other larcenies which had occurred in the Martinsville area at various times.

Prior to the preliminary hearings and trials in the General District Court of the City of Martinsville, counsel for defendant made a motion to suppress the evidence in all cases pending against him upon the ground that his arrest was illegal and the evidence obtained as a result thereof was inadmissible. He filed a memorandum in support of the motion. The Commonwealth's Attorney filed a response to the memorandum, and defendant's counsel answered. On March 13, 1981, and March 19, 1981, the district court certified the various felony charges against defendant to the circuit court, and found defendant guilty of two misdemeanors, which he appealed.

On May 4, 1981, a grand jury returned indictments against defendant, and his cases appeared for the first time on the docket of the lower court. Counsel for defendant filed a pretrial motion to suppress the evidence upon the ground previously alleged in the district court. The record shows that a hearing was had on this motion on May 22, 1981, at which time evidence was taken and oral arguments made. At the conclusion of the arguments, the trial judge took the motion under advisement, stating that he would review the file, write an opinion, and get back in touch with the Commonwealth's Attorney and counsel for defendant. The clerk's docket sheet shows the following as having occurred in the case: "Motion to suppress the evidence," and below that the letters, "C-O-N-T."

Audrey Hall, a deputy clerk, was required to monitor each criminal case called in the lower court and to record an appropriate order to fit that case. When asked by the trial judge what her notes indicated as having occurred in defendant's case on May 22, she replied:

My notes indicate that Mr. Gregory made the Motion to suppress the evidence gained by the search and that the Court took the file and stated that he would review the file and write an opinion and get back in touch with Mr. Gregory and the Commonwealth; and Mr. Gregory indicated his agreement to this by nodding or murmuring all right, sir, or something similar.

When asked by the trial judge if her notes indicated "anything about a Continuance," she replied: "Yes, sir. I wrote continued after that part."

It further appears that, consistent with the practice usually followed in the clerk's office of the lower court, the deputy clerk thereafter prepared the following order:

In the Circuit Court of the City of Martinsville, this the 22nd Day of May, 1981

INDICTMENT: Break and Enter--181-23,866

Case C

This day came the Attorney for the Commonwealth as well as the defendant in his proper person and by his Attorney John L. Gregory, who raised the issues of illegal warrant and illegal arrest, and it appearing this case is awaiting a decision by the Court on certain motions, it is ordered this cause be continued.

This typewritten order was then placed in a file, along with numerous other orders showing the court's disposition of criminal cases, and it remained in that file until copied on the order book of the court some time prior to the beginning of its next term. In the instant case, the order was "spread upon" the order book on September 16, 1981. ¹

It is not clear from the record what, if anything, occurred between May 22, 1981, and August 20, 1981, while the court was considering defendant's motion to suppress. It does appear that there was some action in the case on or about July 13, 1981. The judge's recollection was that a brief was to be filed by one of the attorneys at that time. Counsel for defendant said that he understood that the court would render its decision on his motion on August 5, 1981, and that the briefs previously submitted to the district court would be relied upon by the parties. The trial judge's recollection was that counsel for defendant was on vacation the day he was supposed to rule on the motion.

On August 20, 1981, counsel for defendant moved to dismiss all cases pending against defendant in the lower court and to discharge Stephens from prosecution for the offenses upon the ground that he had been held continuously in custody without trial for a period of more than five months. On August 25, 1981, the court overruled defendant's motion to suppress the evidence and, in the same order, overruled defendant's motion to dismiss, finding that "the [court's] order of May 22, 1981 in this case properly shows the actions of the Court."

Defendant was tried on the various indictments and warrants on September 24, 1981. He waived trial by jury and introduced no evidence. He was convicted of four charges of statutory burglary, two charges of grand larceny, and two charges of petit larceny, and was sentenced to a total of five years in the penitentiary and thirty-seven months in jail, the jail time to run concurrently.

The defendant's right to a speedy trial is one accorded him under the sixth amendment of the United States Constitution and under article I, section 8 of the Virginia Constitution. This right has been supplemented by Code §§ 19.2-241 and 19.2-243, ² held to be a legislative interpretation of what constitutes a speedy trial. Flanary v. Commonwealth, 184 Va. 204, 35 S.E.2d 135 (1945).

However, the protections granted under these Code sections are not self-operative and may be claimed or waived. Brooks v. Peyton, 210 Va. 318, 171 S.E.2d 243 (1969); Butts v. Commonwealth, 145 Va. 800, 133 S.E. 764 (1926). Further, we have held that the exceptions in the speedy trial statute are not meant to be all-inclusive, but that others of a similar nature were implied. In Commonwealth v. Adcock, 49 Va. (8 Gratt.) 661, 681 (1851), we said:

The truth is the statute never meant by its enumeration of exceptions, or excuses for failure to try, to exclude others of a similar nature or in pari ratione; but only to enact if the Commonwealth was in default for three terms without any of the excuses for the failure enumerated in the statute, or such like excuses, fairly implicable by the Courts from the reason and spirit of the law, the prisoner should be entitled to his discharge.

In Wadley v. Commonwealth, 98 Va. 803, 35 S.E. 452 (1900), a defendant obtained from the federal court an injunction restraining the law officer of the state from proceeding with his trial and prohibiting the use of certain books and records as evidence on behalf of the Commonwealth, thereby causing a delay that he sought to take advantage of. The Court held The contention is that the statute does not enumerate an injunction by a Federal court as one of the causes of delay disentitling the prisoner to his discharge. It may fairly be presumed that the Legislature never contemplated such a cause of delay, and it would defeat, rather than carry out, the purpose of the enactment to give its language the narrow and technical meaning contended for. The sole subject was to insure a speedy trial.

98 Va. at 805, 35 S.E. at 453.

To the same effect, see Knott v. Commonwealth, 215 Va. 531, 533, 211 S.E.2d 86, 88 (1975), where we reaffirmed Wadley and observed: "The General Assembly has enumerated six circumstances which excuse 'the failure to try'. And, as the Commonwealth says we have held that this enumeration was not intended to exclude other circumstances in pari ratione."

Defendant established, without contradiction, that he had been held continuously in custody and that the five-month time limit had passed without trial. He argues that the burden was on the prosecution to prove excusable delay within the enumerated exceptions in the statute, and cites in support Flanary, supra; Woodard v. Commonwealth, 214 Va. 495, 201 S.E.2d 785 (1974); Heflin v. Commonwealth, 211 Va. 407, 177 S.E.2d 644 (1970).

The three cases relied upon by defendant are distinguishable. In Flanary a defendant's case was continued for more than two years after indictment on motion of the Commonwealth. It was not contended there that the accused agreed to the continuance. In fact neither the defendant nor the Commonwealth had asked for a trial during the...