COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
ROBERT HURT ROBERTSON, JR.
MEMORANDUM OPINION * BY
v. Record No. 1678-97-2 JUDGE LARRY G. ELDER
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Robert E. Hawthorne, Jr. (Hawthorne &
Hawthorne, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Robert Hurt Robertson (appellant) appeals from his bench
trial conviction for driving after having been declared a
habitual offender and in such a manner as to endanger the life,
limb, or property of another, in violation of Code § 46.2-357.
On appeal, he contends the trial court erroneously ruled (1) that
the delay in trying him did not violate his constitutional speedy
trial rights; (2) that granting the Commonwealth's mid-trial
continuance did not deprive him of a fair trial; and (3) that the
testimony of the Commonwealth's key witness was not so incredible
as to render the evidence insufficient as a matter of law to
support his conviction. For the reasons that follow, we affirm
appellant's conviction.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
FACTS
A. THE OFFENSE
At around midnight on October 4, 1995, Deputy Joe Alder
pursued a vehicle after having received a complaint from Howard
Roark that the vehicle was trespassing repeatedly on his
property. During the pursuit, Alder obtained the license number
and learned that the vehicle, a pickup truck, was registered to
appellant's father. As Alder pursued the truck, it ran a stop
sign and, despite rainy conditions, drove at speeds "well over
100 miles per hour," finally coming to rest off the road in the
mud when the brakes locked up. Alder saw a tall, slender white
male exit the passenger side of the truck and a short male exit
the driver's side. He watched both men escape into the woods.
Alder could not identify either person. Deputy Alder then went
to appellant's nearby house. Although the house was "wide open"
and the lights and television were on, no one responded to
Alder's knocking.
After refusing to testify and being held in contempt, 1 the
Commonwealth's key witness, Michael Merchant, testified that he
and appellant drove appellant's truck to Howard Roark's chicken
1
These events are described more fully below. The issues of
the lawfulness and propriety of the manner in which Merchant's
testimony ultimately was obtained are not before us. Even
assuming Merchant's rights were violated in one or more ways,
matters upon which we express no opinion, appellant lacks
standing to assert those issues.
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house and that appellant was driving while Deputy Alder pursued
them. Merchant also testified that, at the time of the offense,
he was 6'1" tall and weighed 175 or 180 pounds. The Commonwealth
asked the trial court to take judicial notice of the fact that
appellant was "much shorter and much stockier" than Merchant. In
finding appellant guilty, the trial court noted that Deputy
Alder's testimony was "really undisputed" and that it was "clear
to [the court] . . . that [Alder] saw [appellant] getting out of
the driver seat."
B. PROCEEDINGS IN THE TRIAL COURT
Appellant was indicted on July 2, 1996, arrested, and
released on bail. The Commonwealth's key witness, Michael
Merchant, failed to appear for appellant's trial on October 17,
1996, and the Commonwealth requested a continuance. Counsel for
appellant said he had no objection to "a joint motion for a
continuance." Trial was reset for December 16, 1996, and
Merchant again failed to appear.
Trial commenced on January 15, 1997, with Merchant present
pursuant to a capias, and the court heard the testimony of Deputy
Alder. When Merchant was called to testify, he equivocated about
whether he would tell the truth and inquired about "plead[ing]
the fifth." Eventually, Merchant took the oath to the trial
court's satisfaction.
On the Commonwealth's motion, the trial court granted
Merchant use immunity. When Merchant continued to resist
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testifying, saying the concept "sound[ed] mighty fishy," the
Commonwealth's attorney informed the court that Merchant was a
probationer of the court and that, if he continued to be in
contempt of court, the Commonwealth's attorney would request the
issuance of a capias for his arrest on a probation violation.
Merchant began to answer the Commonwealth's questions, but he
claimed he did not really know appellant and had just "seen him
around town." Merchant also claimed he had hit his head during
an epileptic seizure and could not remember what, if anything, he
told Deputy Alder about the events of October 4, 1995.
Appellant moved to dismiss, arguing that the Commonwealth
could not convict him without Merchant's testimony and that
because Merchant could not remember the events in question,
holding Merchant in contempt would do nothing to improve his
memory. The trial court denied the motion, found Merchant in
contempt, and ordered Merchant held until the Commonwealth's
request for revocation of his unrelated suspended sentence could
be heard.
The Commonwealth called Officer Ed Gates, who testified that
on one evening around October of 1995, he saw Merchant driving
the pickup truck owned by appellant's father and that someone he
"believe[d]" to be appellant was with Merchant.
The Commonwealth then moved for a continuance to allow
Merchant an opportunity to purge himself of contempt. Appellant
objected and again moved to dismiss on the ground that a
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mid-trial continuance was prejudicial to him. The trial court
agreed that the continuance was "somewhat prejudicial" to
appellant but that Merchant's "display [also] . . . [was] rare
indeed" and necessitated granting the continuance.
When trial resumed on April 28, 1997, appellant moved to
dismiss on constitutional speedy trial grounds, proffering that
the original charge was brought in October 1995, was nolle
prossed because of the refusal of witnesses to testify, and was
re-initiated by direct indictment on July 2, 1996. The trial
court denied that motion. Finally, appellant moved the trial
court to reconsider its motion to dismiss based on the claimed
abuse of discretion in continuing the case after trial had begun.
Again, the court denied that motion.
Following the denial of those motions, Michael Merchant
appeared with counsel and testified without obvious resistance.
He indicated that he had been driving earlier on the evening in
question but that appellant was driving while Deputy Alder
pursued them. Merchant admitted being an epileptic and said that
he took medication for that condition which made him prone to
memory lapses "[w]henever [he] get[s] excited over something,"
such as during the high speed chase in question. Merchant
admitted that he was not authorized to drive the vehicle that
night because his operator's license had been suspended. He also
admitted having had multiple prior driving convictions.
Appellant moved to strike at the close of the Commonwealth's
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evidence on the ground that Merchant's testimony was incredible.
The trial court denied the motion. Appellant renewed the motion
during his closing argument, again challenging the credibility of
Merchant's testimony and contending that, without Merchant's
testimony, the Commonwealth's circumstantial evidence that
appellant exited from the driver's side of the vehicle was
insufficient to convict appellant.
The trial court found that the critical portions of
Merchant's testimony were credible and, taken in conjunction with
Deputy Alder's testimony, that the evidence was sufficient to
prove the charged offense beyond a reasonable doubt.
II.
ANALYSIS
A. CONSTITUTIONAL SPEEDY TRIAL RIGHTS
Appellant contends he was denied his constitutional right to
a speedy trial. We disagree.
"The determination of whether an accused has been denied the
constitutional right to a speedy trial requires 'a difficult and
sensitive balancing process' in which the court examines on an ad
hoc basis the conduct of both the state and the accused which led
to a delay in prosecution.'" Kelley v. Commonwealth, 17 Va. App.
540, 544, 439 S.E.2d 616, 618 (1994) (quoting Barker v. Wingo,
407 U.S. 514, 530, 533, 92 S. Ct. 2182, 2192, 2194, 33 L. Ed. 2d
101 (1972)). In reviewing an alleged constitutional speedy trial
violation, the Court must consider: (1) the length of the delay;
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(2) the reason for the delay; (3) the defendant's assertion of
his right to a speedy trial; and (4) the prejudice to defendant.
See Barker, 407 U.S. at 530, 92 S. Ct. at 2191.
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1. Length of Delay
The first of the Barker factors, the length
of delay, is properly considered separately
from the other three, for if the delay in
bringing a defendant to trial is not
sufficient to raise at least an inference of
injustice, further exploration is
unnecessary. When the delay involved becomes
"so protracted as to be 'presumptively
prejudicial', the first factor becomes a
'triggering mechanism' which necessitates
'inquiry into the other factors that go into
the balance.'" There is no bright line time
limit that serves to automatically invoke a
defendant's right to exploration of the other
factors. A defendant must be able to at
least raise the presumption that, in his
particular case and in his particular
circumstances, the delay was so detrimental
as to have endangered his right to a fair
trial.
Beachem v. Commonwealth, 10 Va. App. 124, 131, 390 S.E.2d 517,
520 (1990) (quoting Fowlkes v. Commonwealth, 218 Va. 763, 766,
240 S.E.2d 662, 664 (1978) (quoting Barker, 407 U.S. at 530, 92
S. Ct. at 2192)). "'[T]he Sixth Amendment does not apply to the
period before a defendant is indicted, arrested, or otherwise
officially accused.'" Holliday v. Commonwealth, 3 Va. App. 612,
617, 352 S.E.2d 362, 364 (1987) (quoting United States v.
MacDonald, 456 U.S. 1, 6, 102 S. Ct. 1497, 1501, 71 L. Ed. 2d 696
(1982)). "When the charge is for a misdemeanor or lesser
offense, the length of delay that will be tolerated is less than
that when the charge is for a more serious crime." Kelley, 17
Va. App. at 545, 439 S.E.2d at 619.
The evidence in the record indicates that the offense
occurred on October 4, 1995 and that appellant was arrested on
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July 8, 1996, on an indictment issued for that offense on July 2,
1996. However, appellant proffered at trial that an indictment
was first issued against him on this charge in October 1995 but
was dismissed by nolle prosequi due to the refusal of a witness
to testify. He contends that this period should be included in
our constitutional speedy trial evaluation. We assume without
deciding that we may rely on appellant's proffer, making the
length of time between appellant's original indictment in October
1995, and the completion of his trial on April 28, 1997, a period
of about nineteen months. We also assume, without deciding, that
the date of the original indictment is the proper time to begin
our constitutional speedy trial analysis. 2 The crime here is the
felony of driving after having been declared a habitual offender
and in such a manner as to endanger the life, limb or property of
another in violation of Code § 46.2-357. It involved appellant's
2
Ordinarily, "'[u]nder Virginia procedure, a nolle prosequi
is a discontinuance which discharges the accused from liability
on the indictment to which the nolle prosequi is entered.'"
Arnold v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183, 185
(quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d
269, 273 (1977)), aff'd on reh'g en banc, 19 Va. App. 143, 450
S.E.2d 161 (1994). Based on this principle, we have held that
when an original indictment is disposed of by nolle prosequi and
a second indictment is issued, the time calculations of the
speedy trial statute, Code § 19.2-243, are to be counted from the
date of the second indictment. See 18 Va. App. at 221-22, 443
S.E.2d at 185. In the context of constitutional speedy trial
rights, however, we have not expressly addressed this issue. In
Arnold, we applied this principle in the context of the statutory
speedy trial analysis but analyzed the constitutional speedy
trial claim from the date of the original finding of probable
cause. Id. at 220-24, 443 S.E.2d at 184-86. We do not address
this issue in the case before us.
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driving at speeds of "well over 100 miles per hour" in an attempt
to evade a police officer. We consider this felony a more
serious crime. Assuming without deciding that the delay of
nineteen months was presumptively prejudicial, we evaluate the
additional factors from Barker to determine whether appellant's
constitutional speedy trial rights were violated.
2. Reason for the Delay
The Commonwealth bears the burden "'to show, first, what
delay was attributable to the defendant and not to the
Commonwealth and, second, what part of any delay attributable to
the prosecution was justifiable.'" Holliday, 3 Va. App. at 617,
352 S.E.2d at 365 (quoting Fowlkes, 218 Va. at 767, 240 S.E.2d at
664). Here, after the second indictment in July 1996, appellant
joined in the Commonwealth's continuance motion so that he would
have sufficient time to prepare for trial. However, the record
indicates that most significant delays were due to the failure of
the Commonwealth's key witness to cooperate, despite the
Commonwealth's earnest efforts to secure his attendance at trial.
Therefore, in evaluating this factor, we attribute the majority
of the delay to the Commonwealth, but we do not weigh it heavily
because the Commonwealth was not at fault in the delay. See id.
at 618, 352 S.E.2d at 365 (citing Barker, 407 U.S. at 531, 92
S. Ct. at 2192).
3. Assertion of the Right
Next, we consider whether appellant asserted his
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constitutional speedy trial right. He objected to the
continuance of January 15 and asserted his constitutional speedy
trial right on April 28, prior to the resumption of Merchant's
testimony. We hold, therefore, that he timely asserted this
right.
4. Prejudice
In evaluating prejudice, the Supreme Court has identified
three interests to be protected: "(1) preventing oppressive
pretrial incarceration; (2) minimizing the accused's anxiety; and
(3) limiting the possibility that the defense will be impaired."
Kelley, 17 Va. App. at 546, 439 S.E.2d at 620 (citing Barker,
407 U.S. at 532, 92 S. Ct. at 2193). None of these factors
supports a finding of prejudice in this case. First, appellant
was not incarcerated prior to trial. Second, he makes no claim
that he suffered an abnormal degree of anxiety while awaiting
trial. See id. at 546-47, 439 S.E.2d at 620 (noting that "anyone
who is subject to criminal prosecution will commonly suffer
anxiety and concern about the outcome"). Third, although
appellant asserts that the delay impaired his defense, we reject
this contention. Appellant had no right to rely on Merchant's
claimed memory lapse. See Arnold v. Commonwealth, 18 Va. App.
218, 224, 443 S.E.2d 183, 187 (rejecting claim that delay
impaired defense because it permitted a previously unavailable
witness to testify), aff'd on reh'g en banc, 19 Va. App. 143, 450
S.E.2d 161 (1994). Finally, the passage of time did not
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critically impair the ability of witnesses to remember key events
in sufficient detail. "Even if the memories of the defendant's
own witnesses are diminished, the effect of that loss on the
defendant's case must be demonstrated before prejudice may be
found." Kelley, 17 Va. App. at 547, 439 S.E.2d at 620. The
record here does not support appellant's assertion that the
witnesses admitted any difficulties in recollection. Merchant,
the key witness, testified with certainty that appellant was
driving during the high speed chase. Further, appellant made no
allegation that any of the witnesses could have provided
appellant with an alibi if their memories had been more precise.
Evaluating the four Barker factors in regard to appellant's
constitutional speedy trial claim, we conclude that the delay in
trying appellant did not violate his constitutional speedy trial
rights because it was not unduly lengthy, did not result from any
intentional misconduct on the part of the Commonwealth, ended on
the very day that appellant first asserted his constitutional
speedy trial right, and resulted in no actual prejudice to
appellant.
B. MID-TRIAL CONTINUANCE
"[C]ontinuances in the midst of trial should not be an
everyday occurrence. Nevertheless, such decisions are entrusted
to the sound discretion of the trial court." Bennett v.
Commonwealth, 236 Va. 448, 461, 374 S.E.2d 303, 311-12 (1988);
see also Gray v. Commonwealth, 16 Va. App. 513, 517, 431 S.E.2d
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86, 89 (1993) (motion for continuance in order to obtain missing
witness is addressed to sound discretion of trial court). "In
determining whether the trial court properly exercised its
discretionary powers, we look to the diligence exercised by the
moving party to gather and make the evidence available at trial."
Smith v. Commonwealth, 16 Va. App. 630, 636, 432 S.E.2d 2, 6
(1993). We also consider the materiality of the evidence. See
Gray, 16 Va. App. at 518-19, 431 S.E.2d at 89-90. Where a party
uses due diligence to secure the presence of a material witness
at trial and the witness fails to appear, refusal to grant a
continuance even after jeopardy has attached may be an abuse of
discretion. See id. Generally, the granting of a continuance
"will not be reversed on appeal absent an abuse of discretion and
demonstrated prejudice to the complainant." Price v.
Commonwealth, 24 Va. App. 785, 789, 485 S.E.2d 655, 656 (1997).
Here, the record shows that Merchant was a material witness
and that the Commonwealth exercised due diligence to secure his
presence at trial. Merchant was a material witness because the
Commonwealth alleged that he was in the truck with appellant at
the time of the incident in question and was the only person who
could confirm that appellant was driving. Although Deputy Alder
was able to describe the height and build of the driver and
passenger who fled the vehicle, he did not see the face of either
and could not affirmatively identify appellant as the driver.
The Commonwealth exercised due diligence in procuring Merchant's
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presence for trial and did all in its power to obtain truthful
testimony from him. However, Merchant appeared only after a
capias was issued for him. He refused to take the oath,
attempted to invoke his Fifth Amendment right not to testify,
refused to testify even after receiving a grant of immunity, and
claimed he barely knew appellant and did not remember making a
statement to Deputy Alder about the events of October 4, 1995.
Through these actions, Merchant became unavailable to the
Commonwealth. Because Merchant was a material witness who was
unavailable, the trial court did not abuse its discretion in
continuing the case. See Gray, 16 Va. App. at 518-19, 431 S.E.2d
at 89-90.
Moreover, appellant has failed to demonstrate prejudice
caused by the continuance. In essence, appellant asserts that he
was prejudiced because the continuance enabled the Commonwealth
to persuade Merchant to change his testimony by having the trial
judge hold him in contempt of court until he provided
incriminating testimony against appellant. If Merchant had
provided substantive testimony at the January 15, 1997
proceedings, we might view the situation differently. However,
because Merchant's behavior reflected an ongoing resistance to
providing any substantive testimony whatsoever, we reject this
argument.
Appellant's argument erroneously presupposes that Merchant
abided by his oath and provided truthful testimony on January 15,
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1997. The transcript of those proceedings belies this assertion.
It contains four-and-one-half pages of dialogue between Merchant
and the trial judge reflecting the difficulty the trial judge
faced in getting Merchant to swear to tell the truth. It also
shows that after granting immunity to Merchant, the prosecutor
tried to question him, but Merchant provided evasive, equivocal
responses. Finally, after hearing and observing Merchant, the
trial judge ordered him to show cause why a previously suspended
sentence should not be revoked "based entirely on your behavior
here today. Your attitude. Your testimony. Your total lack of
regard for the oath that was given to you by the Court." After
hearing an additional prosecution witness, the trial judge
granted a continuance based on "this display that I've seen by
Mr. Merchant today."
Based on the materiality of Merchant's testimony and the
Commonwealth's earnest, but unsuccessful, attempts to procure it,
the trial judge did not abuse his discretion in granting the
continuance. Moreover, appellant, who was not held in custody
during the continuance, has failed to demonstrate prejudice,
either by showing that Merchant's January 15, 1997 behavior was
in compliance with his oath or, as we discussed in rejecting his
speedy trial claim, by showing that his defense was adversely
affected by the continuance. Accordingly, we hold that the trial
court did not abuse its discretion in granting the continuance.
C. SUFFICIENCY OF THE EVIDENCE
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When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The weight which should be given to evidence
and whether the testimony of a witness is
credible are questions which the fact finder
must decide. However, whether a criminal
conviction is supported by evidence
sufficient to prove guilt beyond a reasonable
doubt is not a question of fact but one of
law.
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601-02 (1986).
Viewed in this light, the evidence proved that appellant
drove his truck at excessive speeds and in a reckless manner
after having been adjudged a habitual offender.
Deputy Alder testified that he pursued appellant's truck at
high speeds in an effort to stop the driver. The incident
occurred late at night on wet roads. The driver of the truck
exceeded speeds of one hundred miles-per-hour and disregarded a
traffic sign. Eventually, the truck drove off the road and
stopped, and the two occupants fled on foot. Alder stated that
the man who exited from the passenger side "was a tall, slender
white male" and that "a short male got out of the driver's side."
The driver and passenger were not apprehended at that time.
On April 28, 1997, Merchant testified that he was a
passenger in appellant's truck on the night Alder pursued them
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and that appellant was driving during the chase. Merchant
confirmed that appellant was "going right fast" during the chase
and that he exited the vehicle and fled after the truck stopped.
Merchant stated that he was 6'1" tall and weighed 175 pounds.
The Commonwealth asked the trial court to take judicial notice of
the fact that appellant was "much shorter and much stockier" than
Merchant. In finding appellant guilty, the trial court noted
that Deputy Alder's testimony was "really undisputed" and that it
was "clear to [the court] . . . that [Alder] saw [appellant]
getting out of the driver seat."
The fact finder believed the Commonwealth's evidence,
including Merchant's testimony of April 28, 1997, and rejected
Merchant's January 15, 1997 statements that he barely knew
appellant and did not remember what, if anything, he told Deputy
Alder about the events of October 4, 1995. The Commonwealth's
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that appellant was
guilty of driving after having been declared a habitual offender
and in such a manner as to endanger the life, limb or property of
another in violation of Code § 46.2-357.
For these reasons, we hold that the trial court did not err
in denying appellant's motion to dismiss on constitutional speedy
trial grounds, granting the Commonwealth's motion for
continuance, and convicting appellant of violating Code
§ 46.2-357. Therefore, we affirm appellant's conviction.
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Affirmed.
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