Harris v. Commonwealth

Present: All the Justices

DAVID J. HARRIS
OPINION BY
v. Record No. 990270 JUSTICE LAWRENCE L. KOONTZ, JR.
November 5, 1999
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider a defendant’s claims that he

was denied his right to a speedy trial under Code § 19.2-243 and

the Sixth Amendment of the United States Constitution where he

was reindicted for the same offenses following the granting of

the Commonwealth’s motion for nolle prosequi on the original

indictment. The dispositive issues are whether the Commonwealth

had good cause for the nolle prosequi motion, and whether its

motivation therefor constituted a bad faith or oppressive tactic

amounting to prosecutorial misconduct.

BACKGROUND

In 1995, David J. Harris falsely represented to his

employee-union, the International Association of Firefighters

(IAFF), that he was in financial need as a result of unpaid

medical expenses arising from the medical care of Harris’ unborn

son. Harris provided IAFF with an invoice for expenses, which

Harris falsely represented as not having been paid by his

insurer. In response to Harris’ false representation, IAFF

issued a check to Harris in the amount of $6,744.11.
Subsequently, in an attempt to procure additional money, Harris

made a second false representation to IAFF in the form of a

fabricated invoice showing additional unpaid expenses.

On January 23, 1996, the Loudoun County General District

Court held a preliminary hearing and found probable cause to

believe that Harris had committed the felony offense of

obtaining money by false pretenses from IAFF. Code § 18.2-178.

The charge was certified to the grand jury. Subsequently, on

February 12, 1996, Harris was indicted in a two-count indictment

for obtaining money by false pretenses from IAFF and for

attempting to obtain money by false pretenses from IAFF. Code

§ 18.2-26. At the Commonwealth’s request, a jury trial was set

for September 3, 1996. Harris was not held in custody pending

his trial.

On August 15, 1996, the Commonwealth filed a motion for a

continuance on the grounds that it had been unable to obtain

documents essential to the prosecution from both a local

financial institution and an out-of-state financial institution. 1

On August 22, 1996, a hearing was held on the Commonwealth’s

motion. During argument, the Commonwealth conceded that

“there’s a speedy trial issue,” but asserted that the case could

1
The record reflects that the Commonwealth obtained
subpoenas duces tecum for these documents in May and July, 1996.

2
be reset, subject to an available date on the trial court’s

docket, within the statutory nine-month period.

Harris opposed the granting of a continuance. He contended

that witnesses for his case would be inconvenienced by the delay

and that the Commonwealth had failed to act with appropriate

diligence to obtain the documents. The trial court denied the

motion and admonished the Commonwealth for not timely requesting

the subpoenas duces tecum to obtain the documents. 2 The

Commonwealth then moved to nolle prosequi the indictment. Over

Harris’ objection, the trial court granted this motion and

stated, “Mr. Harris, you are free to go.”

On October 15, 1996, the grand jury directly indicted

Harris for the same offenses. By agreement with the

Commonwealth, Harris appeared, accepted service, and was

arraigned on the indictment on November 1, 1996. The

Commonwealth had previously agreed to Harris’ release on

personal recognizance and, accordingly, Harris was not held in

custody.

2
Harris contends that the trial court offered the
Commonwealth the option of withdrawing its request for a jury
trial in order to obtain the continuance. The record reflects,
however, only that the trial court noted that the request for a
jury trial was a factor in its consideration of the motion for a
continuance.

3
 On March 31, 1997, Harris moved to dismiss the indictment.

In a supporting memorandum, Harris contended that the

Commonwealth lacked good cause for seeking the nolle prosequi of

the original indictment as required by Code § 19.2-265.3.

Relying on Battle v. Commonwealth, 12 Va. App. 624, 406 S.E.2d

195 (1991), Harris contended that the Commonwealth had

effectively continued the first prosecution in the form of the

second, thus denying him his statutory rights of speedy trial.

Harris further contended that, even if his statutory speedy

trial right had not been violated, his right to a speedy trial

under the Sixth Amendment of the United States Constitution had

been prejudiced by the delay occasioned by the Commonwealth’s

nolle prosequi of the original indictment. Harris conceded that

he could not “determine . . . whether any evidence will be lost

due to witness unavailability, or whether there will be an

inability of any witness . . . to now accurately recall events.”

However, he asserted that he had been prejudiced by a change in

counsel necessitated when his original counsel ended his

employment with the firm retained by Harris and discontinued his

practice of law.

In a responding brief, the Commonwealth, relying on Arnold

v. Commonwealth, 18 Va. App. 218, 443 S.E.2d 183, aff’d, 19 Va.

App. 143, 450 S.E.2d 151 (1994)(en banc), contended that the

motion for nolle prosequi of the original indictment had been

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properly taken and, thus, Harris’ statutory period in which to

be afforded a speedy trial ran from the date of his arraignment

on the second indictment. The Commonwealth further contended

that Harris had failed to show that the delay was prejudicial,

precluding a review of his claim for a violation of his Sixth

Amendment right.

In a letter opinion, the trial court indicated that it

would deny the motion to dismiss. Citing Arnold, 18 Va. App. at

222, 443 S.E.2d at 185, the trial court held that the nolle

prosequi of the original indictment “laid to rest that

indictment, . . . . as though it never had existed.”

Accordingly, the trial court concluded that Harris’ statutory

speedy trial right was to be calculated from the date of his

arraignment on the charges in the second indictment. 3

The trial court continued in its opinion letter to consider

Harris’ claim that the delay in prosecuting him constituted a

violation of his Sixth Amendment right to a speedy trial. The

trial court concluded that “[t]he evidence before the Court

. . . does not justify the conclusion that any such deprivation

3
Although Harris had not expressly asserted a violation of
his due process rights at this time, the trial court further
stated that it found no improper motive or prosecutorial
vindictiveness in the Commonwealth’s decision to nolle prosequi
the original indictment or in its electing to seek the later
indictment of Harris for the same offenses and, thus, no basis
for finding a due process violation.
5
has occurred.” An order incorporating by reference the trial

court’s opinion letter was entered May 29, 1997.

On July 29, 1997, Harris entered into a conditional plea

agreement whereby he agreed to plead guilty to attempting to

obtain money by false pretenses from IAFF while reserving his

right to appeal the denial of his speedy trial claims. By order

entered August 18, 1997, the trial court found Harris guilty of

that offense, sentenced him to a suspended six months term of

confinement, and ordered him to make restitution.

Harris noted an appeal to the Court of Appeals. With

respect to the speedy trial right under Code § 19.2-243, Harris

contended that the trial court erred in finding that the nolle

prosequi of the original indictment had been taken for good

cause. He asserted that because the trial court had denied the

Commonwealth’s motion for a continuance, there was no good cause

for sustaining the motion for nolle prosequi as well. Harris

further asserted that the trial court erred in finding that

there had been no improper motive in seeking the nolle prosequi

and that this “bad faith” infringed upon his constitutionally

protected right to a speedy trial. Harris also contended that

the delays occasioned by the nolle prosequi of the original

indictment had violated his Sixth Amendment right to a speedy

trial.

6
 In an unpublished opinion, Harris v. Commonwealth, Record

No. 2087-97-4 (October 20, 1998), the Court of Appeals rejected

Harris’ assertion that the motion for nolle prosequi had been

granted without good cause. Noting that the result of a motion

for nolle prosequi being granted was more favorable to the

defendant than where a case is merely continued, the Court of

Appeals found that it was “uncontroverted that the Commonwealth

had not obtained documents indispensable to prosecution of

[Harris] on the scheduled trial date.” In this context, the

Court held that the Commonwealth had made a sufficient showing

of good cause for the trial court to sustain a motion for nolle

prosequi.

Having thus found that Harris lacked grounds to assert a

violation of his statutory right to a speedy trial, the Court of

Appeals concluded that there was no presumption of prejudice in

the delay occasioned by his release from the original charges.

The Court further concluded that Harris had failed to

demonstrate actual prejudice as a result of this delay, thus he

was precluded from asserting a violation of his Sixth Amendment

right.

The Court of Appeals further held that the Commonwealth’s

motivation in making the motion for nolle prosequi was that it

was “unable to properly prosecute the original indictment,

without suggestion of unfair or oppressive tactics.”

7
Accordingly, the Court rejected Harris’ assertion of

prosecutorial misconduct.

On January 4, 1999, the Court denied Harris’ petition for a

rehearing en banc. We awarded Harris this appeal.

DISCUSSION

Harris first contends that the trial court’s granting of

the motion for nolle prosequi of the first indictment without

any showing of good cause by the Commonwealth was error and,

thus, the second indictment was effectively a continuation of

the original prosecution and subject to the speedy trial time

limits of the original prosecution, which would have commenced

from the date probable cause was found in the general district

court. 4 Specifically, he contends the record is devoid of any

4
The Commonwealth contends that Harris failed to preserve
his objection to the trial court’s “good cause” determination at
the time that the motion for nolle prosequi was granted. During
oral argument, the Commonwealth further contended that Harris is
barred from collaterally challenging the granting of the motion
for nolle prosequi, asserting that his remedy was to have
challenged the trial court’s action on direct appeal. We
disagree. At the time the motion for nolle prosequi was
granted, Harris was not an “aggrieved party . . . [petitioning]
from [a] final conviction in a circuit court of a traffic
infraction or a crime.” Code § 17.1-406 (emphasis added).
Accordingly, Harris had no right to petition the Court of
Appeals for a review of the trial court’s action at that time.
Harris’ right of appeal accrued only when he was convicted under
the second indictment. The issues before us arise from his
assertion of his speedy trial rights, including the claim that
the original indictment was improperly terminated, during that
prosecution.

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basis upon which the trial court could have granted the motion

for nolle prosequi for “good cause.” This is so, Harris

asserts, because the Commonwealth could not rely on its argument

in favor of the motion for a continuance as supporting its

motion for nolle prosequi and offered no additional reason to

support the motion before the trial court made its ruling.

Harris further asserts that the trial court’s denial of the

continuance motion establishes that there was no good cause to

support that motion and, thus, none to support the motion for

nolle prosequi. We disagree.

We review the granting of a motion for nolle prosequi under

well-settled principles of law. Code § 19.2-265.3 provides that

“[n]olle prosequi shall be entered only in the discretion of the

court, upon motion of the Commonwealth with good cause therefor

shown.” The express language of the statute commits a finding

of good cause to the discretion of the trial court. “In

reviewing an exercise of discretion, we do not substitute our

judgment for that of the trial court. Rather, we consider only

whether the record fairly supports the trial court’s action.”

Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906

(1997). Accordingly, the granting of a motion for nolle

prosequi will only be overturned if there is clear evidence that

the decision to grant the motion was not judicially sound.

9
 Harris’ contention that the Commonwealth could not rely on

its argument in favor of a continuance to support its subsequent

motion for nolle prosequi is without merit. It is clear from

the record that the Commonwealth sought the nolle prosequi as an

alternative to the continuance and on the same grounds. That

argument and its underlying factual assertions were before the

trial court, and it was not necessary for the Commonwealth to

reiterate its position under those circumstances.

Harris’ contention that the trial court’s refusal to grant

the continuance is tantamount to a finding that there was no

good cause to support the subsequent motion for nolle prosequi

is equally without merit. In denying the Commonwealth’s motion

for a continuance, the trial court noted that Harris’ concern

for rescheduling his witnesses and the trial court’s concern

over the difficulty in setting a new date for a jury trial

weighed against granting the motion. These concerns were not

applicable to the subsequent motion for nolle prosequi.

Moreover, as the Court of Appeals noted, whereas a continuance

granted over the defendant’s objection is not favorable to him

in certain respects, a nolle prosequi provides him with the

benefit of being released from the terms of his bond or from

being held in custody. Thus, the trial court’s determination of

whether to grant the Commonwealth’s motion for nolle prosequi

involved a different calculus from the one it had applied to the

10
continuance motion. The record fairly supports the trial

court’s action in granting the nolle prosequi and, accordingly,

there is no basis for finding that decision was not founded upon

good cause shown by the Commonwealth.

Harris next contends that even if there was sufficient good

cause to support the granting of the motion for nolle prosequi,

the Commonwealth’s motive therefor was improper. Harris asserts

that the Commonwealth acted in bad faith and used “oppressive

and unfair trial tactics” in order to avoid the operation of the

speedy trial statute. We disagree.

Addressing the issue of prosecutorial misconduct in

Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), the United

States Supreme Court stated, “for an agent of the State to

pursue a course of action whose objective is to penalize a

person’s reliance on his legal rights is ‘patently

unconstitutional.’” Id., 434 U.S. at 363. In the instant case,

the record does not support a conclusion that the decision to

nolle prosequi the indictment was made to penalize Harris for

his reliance on his legal rights. Rather, the Commonwealth’s

motion for nolle prosequi resulted from the Commonwealth’s

inability to go forward with the prosecution without a

continuance in order to obtain essential documentary evidence.

We recognize that the trial court found that the Commonwealth’s

failure to obtain the necessary documents in a timely manner

11
was, at least in part, due to a lack of adequate foresight and

preparation on the part of the Commonwealth’s Attorney. 5 While

such behavior is not to be encouraged, on this record it does

not demonstrate bad faith on the Commonwealth’s part. Nor does

the decision of the Commonwealth to seek a nolle prosequi of the

indictment rise to the level of oppressive tactics amounting to

prosecutorial misconduct in this instance. Cf. Battle v.

Commonwealth, 12 Va. App. at 630, 406 S.E.2d at 198 (prohibiting

the use of the threat of nolle prosequi in order to increase the

prosecutorial risk to a defendant to force a defendant to

relinquish an advantage gained by the exercise of the

defendant’s legal rights).

Harris further contends that having failed to prepare

adequately for trial, the Commonwealth’s action in seeking a

nolle prosequi constituted a violation of his due process rights

under the Fourteenth Amendment by providing the Commonwealth

with an “‘unlimited continuance’ that circumvented [Harris’]

right to a speedy trial.” In essence, Harris is asserting that,

even in the absence of an improper or vindictive motive, where

the Commonwealth elects not to proceed with a prosecution

because of a weakness in its ability to present its case, any

5
The record also reflects that the delay in obtaining the
documents was caused in part by factors beyond the
Commonwealth’s direct ability to control.
12
subsequent attempt to prosecute the same charge should be

treated as a continuation of the original prosecution. This

contention is contrary to the well-established law of this

Commonwealth concerning the effect of a nolle prosequi.

“Under Virginia procedure a nolle prosequi is a

discontinuance which discharges the accused from liability on

the indictment to which the nolle prosequi is entered." Miller

v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977).

A new indictment is a new charge, distinct from the original

charge or indictment. “When an original indictment is

supplanted by a second indictment, the terms contemplated by

[Code § 19.2-243] are to be counted from the time of the second

indictment.” Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d

243, 246 (1969); see also Miller, 217 Va. at 934, 234 S.E.2d at

273; Arnold, 18 Va. App. at 221-22, 443 S.E.2d at 185; Presley

v. Commonwealth, 2 Va. App. 348, 350, 344 S.E.2d 195, 196

(1986).

The fact that a motion for nolle prosequi comes close in

time to the running of a defendant’s speedy trial period does

not obviate the ultimate effect of that motion. Once the motion

is granted, the defendant is released from custody or the terms

of his bond and is at liberty. While this may provide the

Commonwealth with an opportunity to gather more evidence, it

does not amount to an “unlimited continuance” because the

13
defendant no longer suffers the consequences of being under

indictment.

For these reasons, we find no merit to any of Harris’

contentions in support of his claim that he was denied his

statutory right to a speedy trial or that his due process rights

were violated when the trial court granted the Commonwealth’s

motion for nolle prosequi.

We now consider Harris’ contention that, even if the trial

court did not err in granting the motion for nolle prosequi, he

was nonetheless denied his right to a speedy trial as provided

under the Sixth Amendment. In Barker v. Wingo, 407 U.S. 514

(1972), the United States Supreme Court listed four factors that

are to be weighed in determining whether an accused has been

deprived of his Sixth Amendment right to a speedy trial. These

factors are the length of the delay, the reason for the delay,

whether the defendant has asserted his right, and the prejudice

to the accused from the delay. Id. at 530. The Court noted

that prejudice to the defendant must be considered in the light

of the interests the speedy trial right was designed to protect:

"(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit

the possibility that the defense will be impaired. Of these,

the most serious is the last, because the inability of a

14
defendant adequately to prepare his case skews the fairness of

the entire system." Id. at 532 (footnote omitted).

Addressing each of the factors identified in Barker, 6 Harris

asserts that the delay caused by the nolle prosequi of the

original indictment creates a presumption of prejudice since he

was not brought to trial for the offenses charged in that

indictment until approximately nineteen months after the

original probable cause hearing in the general district court.

This delay, he asserts, “was deliberate in that the Commonwealth

had not prepared for the original trial.” Thus, while conceding

that he was on a personal recognizance bond following his arrest

in each instance, Harris contends that he “was kept in anxiety

for more than nineteen (19) months.” Harris further contends

that he was prejudiced by the delay because he was required to

substitute new counsel and was otherwise subjected to the

inherent prejudice of being kept under suspicion of having

committed a crime.

The difficulty with all these contentions is that they fail

to account for the effect of the nolle prosequi of the original

indictment. We have already determined that the trial court did

not err in granting the motion for nolle prosequi. As a result,

6
It is not disputed that Harris asserted the right as
required by the third factor.

15
Harris’ claim for a violation of his constitutional right to a

speedy trial relates only to the prosecution of the second

indictment. 7 The record fails to disclose that the time it took

to bring Harris to trial on the second indictment was occasioned

by any factor other than the normal proceedings of the trial

court, including Harris’ own requests for discovery and pre-

trial motions.

Nor does Harris point to any evidence in the record showing

actual prejudice to his defense. Although Harris’ original

counsel left the employ of the firm Harris had retained for his

defense, other members of that firm represented him throughout

the proceedings. The aggressive nature of the defense they

provided discloses no indication of any deficiency resulting

from the change in lead counsel. Similarly, we find no support

in the record of Harris’ claim of generalized prejudice

resulting from his being under indictment. Accordingly, we hold

that the period between Harris’ appearance to accept service of

the second indictment and his subsequent conviction thereon did

not constitute a violation of his constitutional right to a

speedy trial under the Sixth Amendment.

7
Harris concedes on brief that, taking into account his
delay in accepting service of the indictment, his conviction on
the second indictment occurred within the limits of Code § 19.2-
243.

16
 For the reasons stated, we will affirm the judgment of the

Court of Appeals.

Affirmed.

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