COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
DAVID CARDWELL
v. Record No. 0091-96-4
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
DAVID CARDWELL FEBRUARY 18, 1997
v. Record No. 0097-96-4
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Kevin T. Gaynor, Assistant Public Defender,
for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
briefs), for appellee.
David Cardwell (appellant) was indicted for two counts of
obtaining property by false pretenses. 1 The sole issue raised in
these appeals is whether appellant's constitutional right to a
speedy trial was violated. Finding no error, we affirm both
convictions.
The offenses occurred on April 25, 1994 and April 30, 1994
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(the Alexandria charges). On May 18, 1994, appellant turned
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
We consolidate Record No. 0091-96-4 and Record No.
0097-96-4 in this appeal as the issue is identical.
2
The record shows that the April 25 offense occurred
"between one [p.m.] and five [p.m.]." Appellant alleged that he
himself in to Arlington County authorities on unrelated charges,
and was transported to Fairfax County Adult Detention Center. On
May 24, 1994, while incarcerated, appellant was served with two
warrants for obtaining property by false pretenses in Alexandria.
Appellant allegedly made requests for a speedy trial on these
charges, but received no response. Appellant was convicted,
sentenced, and began serving time on his Fairfax County and
Prince William County charges while in jail.
On or about July 17, 1995, appellant was transported to the
Alexandria Adult Detention Center. Soon thereafter, the grand
jury indicted appellant for two counts of obtaining property by
false pretenses in violation of Code § 18.2-178. On October 26,
1995, the trial court denied appellant's pretrial motion to
dismiss, which claimed that his constitutional right to a speedy
trial had been violated. The trial court found that appellant
failed to establish any prejudice caused by the delay:
I'm not at all satisfied that, even in
October, that these supposed witnesses were
available, and could be found.
But I'm further satisfied that the
prejudice claimed has not been proven,
because there has been no showing that a
was a patient at the Northern Virginia Mental Institute in Falls
Church, Virginia, and he did not leave the institute until April
26, 1994. However, notations in appellant's file at the hospital
indicate that he left the institute with an authorized pass for a
job interview on April 25, 1994, from 10:15 a.m. to 3:30 p.m.
Additionally, appellant lived in a locked ward that required a
key to enter and leave. To leave the institute, appellant was
required to have an authorized pass, and a staff member was
required to unlock the door and record his exit and entry times.
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current effort has been made to locate any of
these people, and that that effort was
unsuccessful.
You all just want me to take on faith
that, because he wrote a letter, and it said
"moved, no return address," or because he
wrote a letter, and they said they wouldn't
give him information about patients that,
therefore, these people cannot be located.
But you have not set before me any
proof, at this time, that an effort has
currently been made, and that the Defendant
is, in fact, prejudiced.
The court denied appellant's motion, and the case proceeded
to a bench trial on November 3, 1995. Following the trial, the
court found appellant guilty of both charges and on December 21,
1995, sentenced appellant to two concurrent one-year sentences in
prison, to run consecutively with the sentences imposed in other
jurisdictions.
"Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom." Riddick v. Commonwealth, 22 Va. App. 136, 139-40,
468 S.E.2d 135, 136 (1996).
"'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.'" Jefferson v.
Commonwealth, Record No. 2943-95-1, slip op. at 5 (Va. Ct. App.
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Dec. 31, 1996) (quoting Kelley v. Commonwealth, 17 Va. App. 540,
544, 439 S.E.2d 616, 618 (1994)). Each constitutional speedy
trial allegation must be decided on a case-by-case basis, and
four factors must be considered in evaluating a speedy trial
claim: (1) the length of the delay; (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 v. Wingo,
407 U.S. 514 (1972); Riddick, 22 Va. App. at 136, 468 S.E.2d at
139; Jefferson, Record No. 2943-95-1, slip op. at 5-6 (Va. Ct.
App. Dec. 31, 1996); and Arnold v. Commonwealth, 18 Va. App. 218,
443 S.E.2d 183, aff'd, 19 Va. App. 143, 450 S.E.2d 161 (1994) (en
banc).
Appellant argues on appeal that the fourteen-month delay
between the execution of the Alexandria arrest warrants and his
transfer from Fairfax to Alexandria for trial violated his
constitutional right to a speedy trial. He asserts that no
portion of the delay was attributable to him and that the delay
prejudiced him. Specifically, appellant alleges that because of
the delay, he was unable "to locate or interview witnesses" and
"was deprived of witnesses material to his case." He also
speculates that, due to the delay, he "lost the opportunity of
potentially serving fully concurrent sentences" and that he was
prevented from "earning accelerated penitentiary time credit."
Accordingly, we evaluate the Barker factors to determine whether
the delay unduly prejudiced appellant and violated his speedy
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trial right.
The first factor, the length of the delay, is the mechanism
that triggers an examination of the remaining considerations.
Riddick, 22 Va. App. at 136, 468 S.E.2d at 139. "Unless there is
delay which is presumptively prejudicial, it is unnecessary to
inquire as to the other factors." Sheard v. Commonwealth, 12 Va.
App. 227, 231, 403 S.E.2d 178, 180 (1991) (citing Barker, 407
U.S. 514). In the instant case, appellant was served with the
Alexandria warrants on May 24, 1994 while incarcerated for
unrelated charges committed in Fairfax County and Prince William
County. The Commonwealth proffered to the court that generally
it did not, for "policy" reasons and pursuant to the "preference
of the Public Defender," "institute those proceedings until
foreign jurisdictions are done." Therefore, the Commonwealth
argued, it could not institute the Alexandria proceedings until
the conclusion of the Fairfax County and the Prince William
County proceedings. Although these proceedings concluded in
September 1994 and November 1994 respectively, appellant was not
transferred to Alexandria until July 17, 1995, and he was not
indicted for the Alexandria offenses until September 5, 1995.
Regarding the period from November to July, the Commonwealth
conceded that there was "no articulable reason . . . why
proceedings were not instituted" in Alexandria. Based on this
record, an "inquiry into the other factors that go into the
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balance" is necessary. Barker, 407 U.S. at 530. 3
The Commonwealth argues that the second factor, the reason
for the delay, was "simple negligence" and appellant shares the
blame for the delay due to his prosecution for unrelated charges
during his incarceration. We disagree. "The Commonwealth was
obliged to bring [appellant] to trial with reasonable promptness.
It failed to do so." Arnold, 18 Va. App. at 223, 443 S.E.2d at
186. Thus, we conclude that "administrative derelictions
'nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.'" Fowlkes v.
Commonwealth, 218 Va. 763, 768, 240 S.E.2d 662, 665 (1978)
(quoting Barker, 407 U.S. at 531)). Although we attribute the
delay to the Commonwealth's lack of diligence, this is less
onerous than a deliberate or malicious motive on the part of the
prosecutor. See Jefferson, Record No. 2943-95-1, slip op. at 7,
(Va. Ct. App. Dec. 31, 1996).
The third factor, appellant's assertion of his right to a
speedy trial, is disputed. Assuming without deciding that the
evidence supported appellant's allegation that he asserted his
right to a speedy trial, it does not end the inquiry.
3
The first scheduled trial date was October 19, 1995.
Appellant concedes that the delay from October 19, 1995 to
November 3, 1995 is attributable to him because he requested a
continuance. However, the length of the remainder of the delay
requires us to address the remaining three factors listed in
Barker.
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While appellant established the first three factors, he
failed to establish the fourth factor -- prejudice. We evaluate
three concerns in the analysis of prejudice: (1) preventing
"oppressive pre-trial incarceration"; (2) minimizing concern and
anxiety of the defendant; and (3) limiting the possibility of
harming the defense. See Arnold, 18 Va. App. at 223, 443 S.E.2d
at 186.
In the instant case, appellant did not experience
"oppressive pre-trial incarceration." At the time appellant was
served with the Alexandria warrants, he was incarcerated and
awaiting adjudication on unrelated charges in Fairfax County and
Prince William County. Appellant was sentenced on these charges
and consequently he remained incarcerated on these other
unrelated offenses. Appellant's assertions that he lost the
"potential" opportunity of serving fully concurrent sentences and
that he was unable to earn accelerated penitentiary time credit
as a result of the delay is speculative and does not equate with
"oppressive pre-trial incarceration."
Appellant next contends that he suffered anxiety due to the
delay. Appellant testified that he suffered from distress,
apprehension, and anxiety stemming from the unresolved Alexandria
charges. He further alleges that he required medication as a
result of this anxiety. However, he also testified that prior to
his incarceration, he took the same or similar medication for
depression, and that he was hospitalized in Northern Virginia
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Mental Health Institute for depression and other conditions,
including cocaine withdrawal, prior to his arrest on these
charges.
Lastly, we consider whether the delay impaired appellant's
defense. Appellant argues that the delay resulted in his
inability to locate potential witnesses. We find no error in the
trial court's determination that appellant failed to establish
prejudice as he "made no showing that a current effort had been
made to locate them." Additionally, the trial court did not find
appellant's testimony credible. "The weight which should be
given to evidence and whether the testimony of a witness is
credible are questions the fact finder must decide." Bridgeman
v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The record shows that appellant did not provide his attorney
with the names of any alleged witnesses, and that he made no
significant efforts to locate them. Moreover, the evidence
presented at trial contradicted appellant's testimony and his
alibi defense. Further evidence included the identification of
appellant by prosecution witnesses as the perpetrator of the
crimes.
Accordingly, appellant failed to demonstrate that the delay
impaired his defense or otherwise caused him prejudice. For the
reasons stated, we affirm the judgments of the trial court.
Affirmed.
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