Wright v. Com.

• Decision Date: 28 October 2008
• Docket Number: Record No. 2986-06-4.
• Citation: 52 Va. App. 690,667 S.E.2d 787
• Parties: Stacey Lynn WRIGHT v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

667 S.E.2d 787

52 Va. App. 690

Stacey Lynn WRIGHT v. COMMONWEALTH of Virginia.

Record No. 2986-06-4.

Court of Appeals of Virginia, Richmond.

October 28, 2008.

Nina J. Ginsberg (DiMuroGinsberg, P.C., on briefs), Alexandria, for appellant.

Donald E. Jeffrey, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, MCCLANAHAN, HALEY, PETTY, BEALES and MILLETTE^*, JJ.

UPON A REHEARING EN BANC

PETTY, Judge.

Following a bench trial, Stacey Lynn Wright was convicted of assault on a law enforcement officer in violation of Code § 18.2-57(C). On appeal, she raises three issues. First, she argues that the trial court erred in denying her motion to dismiss or remand her direct indictment because the district court improperly entered an order of nolle prosequi. Second, she contends that the resulting denial of a preliminary hearing under Code § 19.2-218 led to a violation of her due process rights under Article I, Section 11 of the Constitution of Virginia. Finally, she asserts that the trial court should have allowed her trial counsel to withdraw so he could testify as an impeachment witness.

By opinion dated April 22, 2008, a panel of this Court reversed Wright's conviction and dismissed the indictment. Wright v. Commonwealth, 51 Va.App. 628, 631-32, 659 S.E.2d 583, 585 (2008).¹ We decided, on our own motion, to rehear this case en banc. Because we find no error in the trial court's decision, we now affirm Wright's conviction.

I. BACKGROUND

On November 19, 2005, Virginia State Trooper B.C. Patton arrested Wright for driving while intoxicated. During her arrest she fought with Trooper Patton, resulting in an additional charge of felony assault on a law enforcement officer. State Trooper J.H. Wolford was also at the scene and assisted in Wright's arrest.

When this case came before the district court for a preliminary hearing the Commonwealth moved to "nol pros" the felony assault charge. Defense counsel objected to the motion, arguing that it was the assistant Commonwealth's attorney's "practice ... to nol pros cases at preliminary hearing and then to direct indict[,] systematically ... depriving folks of their right to a preliminary hearing."

While the record does not reveal the basis of the Commonwealth's motion for nolle prosequi, defense counsel proffered in his later motion to dismiss that the assistant Commonwealth's attorney did not offer any reason for his motion.² However, the Commonwealth did not challenge defense counsel's characterization of the proceedings in the district court. The "unilateral avowal of counsel, if unchallenged" is a proper proffer. Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 (1977). Therefore, the trial court was entitled to consider the proffer as true.

Shortly after the charge of felony assault on Trooper Patton was terminated by entry of the nolle prosequi in district court, the Commonwealth obtained a direct indictment for the same offense as well as an additional direct indictment for felony assault on Trooper Wolford.³ Defense counsel moved to have these indictments dismissed, or, in the alternative, to have the case remanded to the district court for a preliminary hearing. In its motion, the defense argued that the prosecutor did not provide the district court judge with any reason for his motion to nolle prosequi the original charge. Therefore, Wright concluded, the grant of the motion was improper because there was no "good cause" as required by Code § 19.2-265.3. The defense further argued that the district court's grant of the Commonwealth's motion deprived Wright of her statutory right to a preliminary hearing pursuant to Code §§ 19.2-183 and 19.2-218, and violated her due process rights.

Following a hearing on the motion, the trial court denied Wright's motion to dismiss and stated:

I think [defense counsel] raises some interesting issues of the tactics of the Commonwealth Attorney, but I don't think that I am the source of correction if in fact those are the tactics.

I think to do so would be to go behind the nol pros ruling. That's where the issue is fairly joined, where the Commonwealth moves to nol pros and they're there at the preliminary hearing and the judge has the opportunity to hear whether there was good cause.

[T]here's not a procedure for me to review the record and decide whether the General District Court judge or the Juvenile and Domestic Relation[s] Court District Judge was correct.

And to grant this motion I would have to decide that those nol proses were improperly granted, and for all of those reasons, I'm going to deny the motion....

At trial, Wright's counsel sought to impeach Trooper Patton's testimony concerning her behavior during her arrest. Wright's counsel explained to the trial court that he had interviewed the witness prior to trial and that the trooper's statements at that time differed from his testimony. Wright's counsel asked for a mistrial because he was "unfortunately a witness to" the allegedly inconsistent statements. After hearing from the parties, the trial court determined that a mistrial was unnecessary, but directed defense counsel to submit a written proffer for the record. Wright's attorney subsequently provided a detailed proffer.

The trial court convicted Wright of one count of felony assault of a law enforcement officer, finding that she kicked Trooper Patton, and sentenced her to six months incarceration. This appeal followed.

II. ANALYSIS

A.

We begin our analysis with a brief overview of Virginia's statutory right to a preliminary hearing. According to Code § 19.2-218, a "person who is arrested on a charge of felony" is entitled to "a preliminary hearing upon the question of whether there is reasonable ground to believe that he committed the offense and no indictment shall be returned in a court of record against any such person prior to such hearing unless such hearing is waived in writing by the accused." Our Supreme Court has described a preliminary hearing as "a screening process. Its primary purpose is to determine whether there is `sufficient cause' for charging the accused with the crime alleged, that is, whether there is reasonable ground to believe that the crime has been committed and whether the accused is the person who committed it." Moore v. Commonwealth, 218 Va. 388, 391, 237 S.E.2d 187, 190 (1977) (citing Williams v. Commonwealth, 208 Va. 724, 160 S.E.2d 781 (1968)). Our Supreme Court has held that a denial of an accused's statutory right to a preliminary hearing does not violate due process rights under either the Constitution of Virginia or the United States Constitution. Webb v. Commonwealth, 204 Va. 24, 31, 129 S.E.2d 22, 28 (1963). However, the denial of an accused's statutory right to a preliminary hearing can be reversible error.⁴ Triplett v. Commonwealth, 212 Va. 649, 650, 186 S.E.2d 16, 17 (1972).

Hence, Code § 19.2-218, by its own terms, only applies to a "person who is actually under arrest on a felony charge prior to indictment...." Moore, 218 Va. at 394, 237 S.E.2d at 192 (emphasis added) (citing Webb, 204 Va. at 31, 129 S.E.2d at 27-28); accord Payne v. Warden, 223 Va. 180, 183, 285 S.E.2d 886, 887 (1982). Thus, only "a person who is detained in custody by authority of law or who is under a legal restraint" is entitled to a preliminary hearing. Moore, 218 Va. at 394, 237 S.E.2d at 192. "A person ... whose freedom of movement and liberty is not subject to any legal restriction[] is certainly not a person who `is arrested on a charge of felony' within the meaning of" Code § 19.2-218. Id. at 394, 237 S.E.2d at 192 (quoting Code § 19.2-218).

Accordingly, our Supreme Court has held that an adult who is directly indicted by a grand jury, rather than one who is arrested for a felony and charged by a warrant, is not entitled to a preliminary hearing pursuant to Code § 19.2-218. Webb, 204 Va. at 31, 129 S.E.2d at 28. There is no need for a preliminary hearing when a charge has been brought by direct indictment because "[t]he primary purpose of a preliminary hearing is to ascertain whether there is reasonable ground to believe that a crime has been committed and the person charged is the one who has committed it[]"—a function fulfilled by the grand jury on direct indictment. Id.; Britt v. Commonwealth, 202 Va. 906, 907, 121 S.E.2d 495, 496 (1961).

The same limitation applies when a prosecution that began with a felony arrest warrant is terminated at the preliminary hearing in district court whether by dismissal of the charge, Moore, 218 Va. at 394, 237 S.E.2d at 192, or by nolle prosequi of the charge, Armel v. Commonwealth, 28 Va.App. 407, 505 S.E.2d 378 (1998). When the charges against an accused are dismissed or nolle prosequied the accused is no longer a person "whose freedom of movement and liberty" are "subject to any legal restriction" because those charges no longer exist. See Moore, 218 Va. at 394, 237 S.E.2d at 192; see also Armel, 28 Va.App. at 409, 505 S.E.2d at 380 (holding that appellant was not entitled to a preliminary hearing under Code § 19.2-218 because, following the entry of the nolle prosequi at the preliminary hearing, the original charges were "terminated" and "the situation was the same as if `the Commonwealth had chosen to make no charge'" until the return of the direct indictment (quoting Watkins v. Commonwealth, 27 Va.App. 473, 475, 499 S.E.2d 589, 590 (1998) (en banc))).

Thus, when the original prosecution in this case was terminated by nolle prosequi in the district court and the Commonwealth obtained a direct indictment against Wright, the indictment was a "`new charge[], distinct from the original charge[]....'" Watkins, 27 Va.App. at 475, 499 S.E.2d at 590 (quoting Arnold v. Commonwealth, 18 Va.App. 218, 221, 443 S.E.2d 183, 185, aff'd en banc, 19 Va.App. 143, 450 S.E.2d 161 (1994)). Accordingly, the case before us involves two...