COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
JAMES FRANK HAYES
MEMORANDUM OPINION *
v. Record No. 1177-97-4 BY JUDGE CHARLES H. DUFF
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
James L. Berry, Judge
Roger A. Inger (Travis J. Tisinger; Massie,
Inger & Iden, P.C.; Harrison & Johnston, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
In a jury trial in Frederick County, James Frank Hayes
(appellant) was found guilty of the first degree murder of his
wife, Lisa Hayes (Hayes). On appeal, he argues that he was
denied his Sixth Amendment right to a speedy trial. Finding no
error, we affirm appellant's conviction.
On appeal, "[w]e review the evidence in the light most
favorable to the Commonwealth. The factual findings of the trial
court, if supported by credible evidence, will not be disturbed
on appeal." Williamson v. Commonwealth, 13 Va. App. 655, 656,
414 S.E.2d 609, 609-10 (1992).
On July 13, 1995, Hayes' dead body was found near her
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
wrecked car in a Frederick County creek. Medical Examiner Dr.
Frances Field performed an autopsy on the body on July 14, 1995.
The autopsy report listed drowning as Hayes' cause of death.
On November 9, 1995, appellant was indicted in Frederick
County for Hayes' murder, and a March 18, 1996 trial was
scheduled.
On March 7, 1996, the Commonwealth moved to nolle prosequi
the murder charge. The prosecutor contended that on February 8,
1996, he was given information indicating that appellant killed
his wife at the apartment they shared in the City of Winchester.
Anna Oates had told the police that appellant suffocated his
wife with a pillow on the floor of the apartment and later
disposed of the body in the Frederick County creek. The
prosecutor stated that until the receipt of this information from
Oates, it had appeared that, pursuant to Code § 19.2-247, venue
1
was proper in Frederick County. Upon questioning by the court,
appellant refused to waive the issue of venue and permit trial in
Frederick County. The court granted the Commonwealth's motion to
nolle prosequi.
On April 9, 1996, appellant was indicted in Winchester for
his wife's murder, and a trial was scheduled for July 1, 1996.
1
Code § 19.2-247 provides that "[w]here evidence exists that
a homicide has been committed . . . under circumstances which
make it unknown where such crime was committed, the offense shall
be amenable to prosecution in the courts of the county or city
where the body of the victim may be found, as if the offense has
been committed in such county or city."
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On June 18, 1996, upon joint motion of the parties, the trial was
continued until July 22, 1996. On July 9, 1996, appellant
requested, and was granted, a continuance until September 17,
1996.
On September 17, 1996, the Winchester Circuit Court
conducted a hearing upon appellant's motion to dismiss due to
improper venue. Oates testified that she saw appellant cover
Hayes' face with a pillow on the living room floor of appellant's
Winchester apartment. Oates assisted appellant by restraining
Hayes' legs. Eventually, Hayes stopped struggling and appellant
removed the pillow. Oates did not observe Hayes breathing, but
did not check her pulse to see if she was still alive. After
bathing and redressing Hayes, appellant carried her to the car.
Hayes exhibited no signs of life. Appellant drove the car to the
embankment of a Frederick County creek. He positioned Hayes in
the car and sent the car over the embankment into the creek.
Oates testified that she had never seen a dead person before, and
she had avoided looking at Hayes as much as possible.
Dr. Field testified that during the autopsy of Hayes' body
she found several symptoms that were consistent with an asphyxial
death, which could have occurred either by smothering or
drowning. She stated that there were no specific autopsy
findings which would differentiate between smothering or drowning
as the cause of death. Dr. Field noted bruising and pressure
marks about Hayes' face and neck which, Dr. Field opined, were
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inflicted prior to Hayes' death. Dr. Field confirmed that it is
possible for a person to be asphyxiated to the point of
unconsciousness, short of death.
Dr. Cyril Wecht, a forensic pathologist, testified that no
autopsy findings exist which are exclusive to death by drowning.
In reviewing Dr. Field's autopsy report, Dr. Wecht noted only a
few of the characteristics generally found with a death by
smothering. Based upon the autopsy report, Dr. Wecht could not
state the cause of Hayes' death.
The Winchester judge concluded that Frederick County was the
proper forum since the cause of Hayes' death could not be
determined. He dismissed appellant's murder indictment without
prejudice.
On October 10, 1996, appellant again was indicted in
Frederick County for the murder of his wife. Soon after his
indictment, appellant agreed to a trial date of January 31, 1997.
On January 17, 1997, the case was continued upon appellant's
motion until March 31, 1997.
On March 21, 1997, appellant filed a motion to dismiss the
proceedings as violative of his constitutional right to a speedy
trial. At a hearing on March 27, 1997, Investigator Greg Locke
testified that, based upon his preliminary investigation of
Hayes' death, he disagreed with the autopsy report and did not
believe drowning had caused Hayes' death. He stated that Oates
had first told the police in February of 1996 that appellant
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killed his wife at an apartment in Winchester. Oates had said
that Hayes remained motionless on the floor for a long period of
time and did not appear to be breathing. Oates, however, did not
check Hayes' vital signs to see if she was still alive.
Locke further testified that he contacted Dr. Field on March
7, 1996 to discuss the autopsy report. Dr. Field told Locke that
she had listed Hayes' death as a drowning because the body was
found in a creek. Locke advised Dr. Field of Oates' statement.
Dr. Field indicated that the signs and symptoms of drowning are
the same as suffocation, so that the murder could have occurred
in either Frederick County or Winchester.
Appellant contended that his constitutional right to a
speedy trial had been violated, arguing that in February of 1996
Locke should have questioned Oates more thoroughly about her
observations of Hayes after the suffocation. Had Locke done so,
appellant claimed, the Commonwealth would not have nolle
prosequied the original Frederick County charge because the
location of Hayes' death would have appeared unclear. Appellant
asserted that five subpoenas for witnesses at trial had been
returned as "not found" and that the unavailability of those
witnesses was due to the delay in bringing appellant to trial.
Concluding that any delay attributable to the Commonwealth was
justifiable, the trial court found that appellant's
constitutional speedy trial right had not been violated.
Appellant's trial commenced on March 31, 1997. A jury found
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him guilty of first degree murder.
In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court
of the United States, "recognizing the difficulty in evaluating
speedy trial claims, adopted a balancing test" which "identified
four factors to be assessed by courts in determining whether a
particular defendant had been deprived of his speedy trial right:
(1) the length of delay; (2) the reason for the delay; (3) the
defendant's assertion of his right; and (4) the prejudice to the
defendant." Holliday v. Commonwealth, 3 Va. App. 612, 616, 352
S.E.2d 362, 364 (1987). There is, however, no "precise formula
for determining when a constitutional right to a speedy trial has
been abridged." Moten v. Commonwealth, 7 Va. App. 438, 445, 374
S.E.2d 704, 708 (1988). "Balanced in this analysis is the
conduct of both the prosecution and the defendant, the relative
degree of fault to be attributed to that conduct, and the
consequences of the remedies requested." Beachem v.
Commonwealth, 10 Va. App. 124, 130, 390 S.E.2d 517, 519-20
(1990).
The first factor in Barker, the length of the delay,
triggers inquiry into the remaining three factors when "the delay
involved becomes 'so protracted as to be "presumptively
prejudicial" . . . .'" Id. at 131, 390 S.E.2d at 520 (citation
omitted). In this case, sixteen months passed from the date of
appellant's initial indictment in Frederick County until his
trial commenced. This delay requires us to address the remaining
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three factors set forth in Barker. See Arnold v. Commonwealth,
18 Va. App. 218, 223, 443 S.E.2d 183, 186, aff'd on reh'g en
banc, 19 Va. App. 143, 450 S.E.2d 161 (1994).
"Once shown that there has been a delay that is
'presumptively prejudicial,' the burden 'devolves upon the
Commonwealth to show, first, what delay was attributable to the
defendant and not to be counted against the Commonwealth, and,
second, what part of any delay attributable to the prosecution
was justifiable.'" Beachem, 10 Va. App. at 131-32, 390 S.E.2d at
520 (citation omitted).
The Commonwealth concedes that the first portion of the
delay, from the initial indictment in Frederick County until the
nolle prosequi of that charge, is chargeable to the prosecution,
but contends that the delay was justifiable. Appellant argues
that if the Commonwealth had adequately investigated the matter,
it would not have nolle prosequied the proceedings because the
location of Hayes' death would have appeared clouded with
uncertainty, rendering Frederick County the proper forum.
Ordinarily, "the prosecution of a criminal case shall be had
in the county or city in which the offense was committed." Code
§ 19.2-244. Where a killing has occurred "under circumstances
which make it unknown where such crime was committed," the crime
may be prosecuted where the body was found. Code § 19.2-247.
The parties have cited no cases, and we have found none,
defining the degree of proof necessary to establish that a
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"homicide has been committed . . . under circumstances which make
it unknown where such crime was committed" pursuant to Code
§ 19.2-247. However, concerning questions of venue, "the
Commonwealth must produce evidence sufficient to give rise to a
'strong presumption' that the offense was committed within the
jurisdiction of the court, and this may be accomplished by either
direct or circumstantial evidence." Cheng v. Commonwealth, 240
Va. 26, 36, 393 S.E.2d 599, 604 (1990). See also Davis v.
Commonwealth, 14 Va. App. 709, 711, 419 S.E.2d 285, 287 (1992).
Hayes' body was found in Frederick County, and the autopsy
report indicated that she drowned there. Following the initial
indictment in Frederick County, however, the Commonwealth
received information from Oates indicating that appellant may
have actually killed his wife before transporting her in the car
to the creek. Oates stated that Hayes remained motionless and
showed no signs of life after appellant had smothered her. This
description tended to prove that appellant killed his wife in
Winchester. Moreover, Dr. Field advised Locke that she had ruled
the case a drowning only because Hayes was found in water. At
the time the Commonwealth moved to nolle prosequi the original
Frederick County indictment, it was logical to assume that the
evidence, when presented at trial, would prove that Hayes died in
Winchester and that venue was proper in Winchester pursuant to
Code § 19.2-244. Consequently, the Commonwealth's decision to
nolle prosequi the Frederick County indictment, rather than face
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a possible dismissal on grounds of improper venue, was
reasonable. Only through clairvoyance could the prosecutor have
known that the Winchester court, when faced with two medical
opinions that Hayes' cause of death could not be determined,
would dismiss the Winchester proceedings. There is no evidence
that the Commonwealth deliberately selected such a circuitous
route to bring appellant to trial, or that the procedure was
employed intentionally to gain strategic advantage. The delay
associated with the initial proceedings in Frederick County,
therefore, was justifiable under the circumstances.
By requesting or concurring in continuances in the
subsequent proceedings in Winchester and Frederick County,
appellant contributed to the length of the delay. See
Williamson, 13 Va. App. at 658, 414 S.E.2d at 610. In
Winchester, appellant concurred in a continuance from June 18 to
July 22, 1996. During that period of time the case was continued
upon appellant's motion to September 17, 1996. In Frederick
County on January 17, 1997, appellant was granted a continuance
of the January 31 trial date until March 31, 1997.
Additionally, nearly a month passed between the dismissal of
the Winchester indictment and the re-institution of proceedings
in Frederick County. This period of time should not be counted
against the Commonwealth. See United States v. MacDonald, 456
U.S. 1, 7 (1982) (the Sixth Amendment speedy trial clause "has no
application after the Government, acting in good faith, formally
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drops charges. Any undue delay after charges are dismissed, like
any delay before charges are filed, must be scrutinized under the
Due Process Clause, not the Speedy Trial Clause."). Therefore,
at least six months of the ensuing delay following the nolle
prosequi was either attributable to appellant or excludable from
speedy trial considerations.
With regard to the third factor under Barker, we note that
appellant objected to the granting of the nolle prosequi on March
7, 1996, and again asserted his right in a motion to dismiss
prior to trial.
Finally, in determining the factor of prejudice, we consider
three interests: "'(1) preventing oppressive pretrial
incarceration; (2) minimizing the accused's anxiety; and (3)
limiting the possibility that the defense will be impaired.'"
Arnold, 18 Va. App. at 224, 443 S.E.2d at 187 (citation omitted).
Appellant contends that he suffered great stress while
awaiting trial. The record does not reflect, however, that
appellant suffered anxiety any greater than any other similarly
situated defendant awaiting trial upon a murder charge.
Furthermore, other than the simple passage of time,
appellant has demonstrated no prejudice from the delay. The
record does not reveal the nature or substance of the anticipated
testimony of the witnesses appellant claims he was prevented from
calling. "To conclude on this record that [appellant's] defense
was impaired by the delay in bringing him to trial would require
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nothing short of sheer speculation on our part." Beachem, 10 Va.
App. at 134, 390 S.E.2d at 522. We decline to engage in such
speculation.
Balancing our conclusions regarding the four Barker factors,
we find that the trial judge did not err in concluding that
appellant was not denied his constitutional right to a speedy
trial. Although we conclude that a portion of the delay in
bringing appellant to trial was attributable to the Commonwealth,
the trial judge did not err in finding that the delay was
justifiable. We find no evidence of prejudice associated with
the delay. Accordingly, we affirm appellant's conviction.
Affirmed.
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