Fisher v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

GREGORY FISHER, JR.
OPINION BY
v. Record No. 0918-97-1 JUDGE RICHARD S. BRAY
MARCH 24, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Norman Olitsky, Judge
C. Gerard Thompson (Cooper, Spong & Davis,
P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Gregory Fisher, Jr. (defendant) was convicted of aggravated

malicious wounding and related use of a firearm. On appeal,

defendant complains (1) he was denied the right of speedy trial

guaranteed by Code § 19.2-243, and (2) the trial court

erroneously refused to permit his counsel to withdraw and testify

to impeach a Commonwealth witness. Finding no error, we affirm

the convictions.

In accordance with well established principles, we review

the evidence in "the light most favorable to the Commonwealth,"

granting to it "all reasonable inferences fairly deducible

therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975).

The victim, Tony Woods, was awakened at approximately 3:00

a.m. by a knock at the door of a female friend's home located in
the City of Portsmouth. Opening the door, Woods was met by

Anthony Smith, a longtime acquaintance, asking to borrow money.

Woods declined and ordered Smith to leave. Within minutes,

however, Smith returned and Woods again directed him off the

property. When Woods responded to a third knock at the door,

Smith was accompanied by defendant, who shot Woods several times

from a distance of "about five feet." Defendant then attempted

to enter the house, but Woods closed the door and "laid down on

the floor." Woods had known defendant for several years, and

defendant had threatened to "shoot him right now" just two days

before the instant offenses.
Portsmouth Police Officer Charles Sotomayor was dispatched

to the residence, spoke to Woods for approximately "two . . . to

five minutes" and prepared an "initial offense report"

"summar[izing] . . . what was related to [him]" by Woods. The

report described a single "suspect," Anthony Smith, and was

submitted by Sotomayor to his supervisor on the morning of the

shooting. Woods, however, insisted at trial that he also named

"Greg," defendant, to police at the crime scene. Sotomayor

testified that Woods first mentioned defendant the following

evening and that Sotomayor related this additional information

directly to the investigating detective rather than prepare a

supplemental report.

The relevant procedural history is uncontroverted. On

January 9, 1996, the district court found probable cause at a

- 2 -
preliminary hearing on the offenses and certified the charges to

the trial court. A grand jury indicted defendant on February 1,

1996. Trial commenced on April 23, 1996, ending in a mistrial on

defendant's motion as a result of deficiencies in the

Commonwealth's response to previously ordered discovery. In

granting defendant's motion, however, the trial court

specifically found "no intentional failure" by the Commonwealth

to comply with the order. A second trial began on August 15,

1996, but also ended in a mistrial, granted on motion of

defendant after Woods testified that defendant "used to sell

drugs to me."
The instant trial commenced on September 30, 1996. At the

inception of the proceedings, defendant moved the court to

dismiss the indictments because the trial had not commenced

within the five-month period prescribed by Code § 19.2-243. 1 The

court denied defendant's motion, a ruling defendant challenges on

appeal.

During trial and after the Commonwealth had rested its case,

defense counsel advised the court that he and Officer Sotomayor

had previously discussed inconsistencies between information

attributed to Woods on Sotomayor's offense report and Woods'

recollection of events at trial. Counsel proffered Sotomayor's

explanation to him, which differed from his testimony at trial,
1
It is not disputed that defendant was "held continuously in
custody . . . from the date . . . probable cause was found by the
district court." Code § 19.2-243.

- 3 -
and sought leave to withdraw and offer himself as a defense

witness to impeach Sotomayor. After entertaining argument, the

court denied counsel's motion and continued with trial, which

concluded in convictions of defendant on both indictments.

Speedy Trial

Code § 19.2-243 provides, in pertinent part, that an accused

"shall be forever discharged from prosecution . . . if no trial

is commenced . . . within five months from the date . . .

probable cause was found by the district court." Code

§ 19.2-243. The statute specifically excludes "such period of

time as the failure to try the accused was caused" by several

enumerated circumstances. However, "[t]he specified reasons for

excusable delay listed in the statute are not exclusive; other

similar circumstances may excuse delay in trying the accused

within the designated time." Adkins v. Commonwealth, 13 Va. App.

519, 521, 414 S.E.2d 188, 189 (1992) (citing Stephens v.

Commonwealth, 225 Va. 224, 230, 301 S.E.2d 22, 25 (1983)).

"[S]ome delay is unavoidable and some is essential to due

process." Stephens, 225 Va. at 231, 301 S.E.2d at 26. Thus,

"[i]f the record shows that the delay was due to one of the

justifiable reasons specified in the Code, or a reason of a

similar nature, that delay will not bar a later trial." Bunton

v. Commonwealth, 6 Va. App. 557, 559, 370 S.E.2d 470, 471 (1988)

(footnote omitted).

Defendant contends that the April, 1996 mistrial was

- 4 -
necessitated by the Commonwealth's failure to comply with the

prior discovery order. He, therefore, reasons that the

Commonwealth was not exempted from the time constraints of Code

§ 19.2-243, which required trial to commence within five months

of the preliminary hearing date, January 9, 1996, a limitation

that barred the instant prosecution. We disagree.

"Code § 19.2-243 uses the word 'commenced' repeatedly and

purposefully to define compliance with the time periods

prescribed as the statutory measure of . . . a speedy trial."

Johnson v. Commonwealth, 252 Va. 425, 428, 428 S.E.2d 539, 540

(1996). Thus, it clearly "addresses the commencement of trial,

not the conclusion of proceedings." Morgan v. Commonwealth, 19

Va. App. 637, 640, 453 S.E.2d 914, 915 (1995); see Riddick v.

Commonwealth, 22 Va. App. 136, 138, 468 S.E.2d 135, 138 (1996).

This well established principle is consonant with the "'object of

the statute . . . to secure a "speedy trial"'" for the accused,

while recognizing that "'where the accused is actually brought to

trial within the time required by statute, but from some

adventitious cause, without fault on the part of the

Commonwealth, . . . final judgment cannot be entered during such

[time], the statute has been sufficiently complied with.'"
Johnson, 252 Va. at 428, 428 S.E.2d at 540-41 (quoting Butts v.

Commonwealth, 145 Va. 800, 808, 133 S.E. 764, 766 (1926)).

A mistrial generally results from "some adventitious cause"

that impairs due process or otherwise thwarts the proper

- 5 -
administration of justice. Therefore, when a prosecution is

disrupted by mistrial, the commencement of such trial, if timely,

satisfies the statutory mandate and excludes subsequent retrials

from the provisions of Code § 19.2-243. This result is

especially appropriate where, as here, the remedy of mistrial was

granted upon motion of the accused, without evidence of

machinations by the Commonwealth. 2 See Brandon v. Commonwealth,

22 Va. App. 82, 89, 467 S.E.2d 859, 862 (1996). Defendant's

April trial was commenced timely, and the subject trial "was but

an extension of that same proceeding, based upon the same

indictment and process and following a regular, continuous order"

and without "implicating a new speedy trial time frame." Morgan,

19 Va. App. at 639, 453 S.E.2d at 915.

Withdrawal of Counsel

The defendant next asserts the trial court abused its

discretion by refusing to allow defense counsel to withdraw and

testify, thereby denying defendant the right to impeach Sotomayor

through proof of inconsistencies between his trial testimony and

prior statements allegedly made in conversation with counsel. In
2
In the event bad faith or other prosecutional misconduct
precipitates a mistrial, an accused is insulated from further
prosecution by the double jeopardy safeguards of the United
States Constitution, see Brandon v. Commonwealth, 22 Va. App. 82,
91, 467 S.E.2d 859, 863 (1996); Kemph v. Commonwealth, 17 Va.
App. 335, 341, 437 S.E.2d 210, 213 (1993) (citing Oregon v.
Kennedy, 456 U.S. 667, 676 (1982); MacKenzie v. Commonwealth, 8
Va. App. 236, 240, 380 S.E.2d 173, 175 (1989)), as well as the
reasonableness and fairness protections of the constitutional
speedy trial standard. See Shavin v. Commonwealth, 17 Va. App.
256, 267, 437 S.E.2d 411, 418 (1993) (citations omitted).

- 6 -
support of his argument, defendant relies upon Rule 5-102(A) of

the Disciplinary Rules of the Virginia Code of Professional

Responsibility which provides, in pertinent part, that, "[i]f,

after undertaking employment in contemplated or pending

litigation, a lawyer learns or it is obvious that he . . . ought

to be called as a witness on behalf of his client, he shall

withdraw from the conduct of the trial."

Initially, "[w]e question the propriety of equating the

force of a disciplinary rule with that of decisional or statutory

law." See Shuttleworth, Ruloff, and Giordano, P.C. v. Nutter,

254 Va. 494, 498, 493 S.E.2d 364, 366 (1997). Notwithstanding

this concern, however, a decision to permit counsel to withdraw

mid-trial rests with the sound discretion of the trial court.

See Davis v. Commonwealth, 21 Va. App. 587, 592-93, 466 S.E.2d

741, 743-44 (1996); Terrell v. Commonwealth, 12 Va. App. 285,

293, 403 S.E.2d 387, 391 (1991). When defendant's counsel failed

to cross-examine Officer Sotomayor relative to the alleged

inconsistent statements to counsel, he failed to lay a proper

foundation necessary to impeach Sotomayor through testimony

regarding such statements. See Charles E. Friend, The Law of

Evidence in Virginia § 4-3(c) (4th ed. 1993). Thus, impeachment

of Sotomayor by counsel's testimony would have been

impermissible.

Accordingly, we affirm the convictions.

Affirmed.

- 7 -