COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
LOUIS JORDAN POWELL, JR.
OPINION BY
v. Record No. 1051-98-2 JUDGE JAMES W. BENTON, JR.
MAY 25, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Glenn L. Berger (Curtis L. Thornhill;
Berger & Thornhill, on brief), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A grand jury indicted Louis Jordan Powell, Jr., for murder,
use of a firearm in the commission of murder, and possession of a
firearm after having been convicted of a felony. Prior to trial,
Powell pled guilty to possessing a firearm after having been
convicted of a felony. The Commonwealth did not consent to entry
of a conditional plea. See Code § 19.2-254. A jury convicted
Powell of the two remaining charges. On this appeal from the
convictions of second degree murder and using a firearm in the
commission of murder, Powell contends the trial judge erred in (1)
denying his motion to dismiss because of a speedy trial violation,
(2) denying his motion to suppress his statement to police because
of a Miranda violation, (3) admitting into evidence unsigned notes
of a deputy sheriff memoralizing Powell's statement, (4) refusing
to instruct the jury that parole has been abolished in Virginia,
(5) instructing the jury on the elements of second degree murder,
and (6) instructing the jury on the burden to prove self-defense.
For the reasons that follow, we hold that Powell was not tried
within the time period specified in Code § 19.2-243, and we
reverse both convictions and dismiss the indictments.
I.
The record established that officers of the Halifax County
Sheriff's Department arrested Louis Jordan Powell, Jr., on January
26, 1996, on four warrants charging Powell with first degree
murder of a juvenile, discharging a firearm within a building,
using a firearm in the commission of murder, and possessing a
firearm after having been convicted of a felony. On March 19,
1996, a judge of the juvenile and domestic relations district
court found probable cause to believe Powell committed the
offenses and certified the matters to the grand jury. Powell was
taken into custody March 19, 1996, and has remained continuously
in custody.
In May 1996, the grand jury indicted Powell for murder, use
of a firearm in the commission of murder, and possessing a firearm
after having been convicted of a felony. The record indicates
that the only order entered in the circuit court after the return
of the indictments and before trial was an order relieving
Powell's initial trial attorney from his representation and
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substituting another attorney to represent Powell. On October 8,
1996, Powell's attorney filed a motion pursuant to Code § 19.2-243
"to discharge [Powell] from prosecution for failure to commence
trial within five (5) months from the date probable cause was
found." On October 9, immediately prior to the commencement of
trial, the trial judge heard evidence on the motion and denied the
motion. After considering other motions, the trial judge
arraigned Powell. Powell pled guilty to the charge of possessing
a firearm after having been convicted of a felony. He pled not
guilty to murder and use of a firearm in the commission of murder.
At the conclusion of the evidence, the jury convicted Powell of
second degree murder and use of a firearm in the commission of
murder.
II.
As pertinent to this appeal, the statute governing the time
limitation for the commencement of felony trials provides as
follows:
Where a general district court has found
that there is probable cause to believe that
the accused has committed a felony, the
accused, if he is held continuously in
custody thereafter, shall be forever
discharged from prosecution for such offense
if no trial is commenced in the circuit
court within five months from the date such
probable cause was found by the district
court.
Code § 19.2-243. "If [the accused] is not tried within the time
specified in Code § 19.2-243, the burden is on the Commonwealth
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to explain the delay." Godfrey v. Commonwealth, 227 Va. 460,
463, 317 S.E.2d 781, 782 (1984). To avoid the statutory remedy
of discharge from prosecution, "[t]he Commonwealth must prove
that the delay was based on 'one of the reasons enumerated in
[Code § 19.2-243] or on [the accused's] waiver, actual or
implied, of his right to be tried within the designated
period.'" Baker v. Commonwealth, 25 Va. App. 19, 22, 486 S.E.2d
111, 113, aff'd on reh'g en banc, 26 Va. App. 175, 493 S.E.2d
687 (1997).
Powell's trial was not commenced within five months from
the date the judge of the juvenile court found probable cause.
Following an evidentiary hearing, the trial judge found "that
there was a continuance [and] that it was on the motion of
[Powell]." See Code § 19.2-243 (exempting "such period of time
as the failure to try the accused was caused . . . [b]y
continuance granted on the motion of the accused or his
counsel"). The record, however, does not support the trial
judge's findings.
At the evidentiary hearing, Tina Englebright, an employee
of the Commonwealth's Attorney's office who is not an attorney,
testified that she had been given the responsibility of "setting
the circuit court docket." In this capacity, she received a
list of available trial dates from the circuit court judge and
then contacted the attorneys involved in the cases to coordinate
their available trial dates. Englebright prepared a spread
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sheet with the defendant's name, charge, attorney and a speedy
trial date, and she noted on the spread sheet the agreed upon or
convenient trial date. After Englebright completed the spread
sheet, she delivered it to the clerk's office. Englebright
testified that the clerk prepared the trial docket from
Englebright's spread sheet.
Englebright testified that this procedure was followed for
Powell's case. Her spread sheet indicated that Powell was to be
tried by a jury. Over objection, she further testified that
Powell's initial attorney had asked for a continuance because of
"extreme docket problems in setting his cases." She also
testified that the circuit judge did not enter either an order
setting the case for trial or an order for a continuance.
Powell's initial attorney testified that he could not
recall requesting a continuance of the case. He also testified
that the circuit judge generally enters orders when continuances
are granted.
The Clerk of the Circuit Court identified Englebright's
spread sheet as the document from which the clerk's office
prepared its trial docket. The Clerk testified that the spread
sheet was "used in support of the creation of the docket." The
Clerk also testified the spread sheet is not put in an order
book and is not stamped or dated as received.
The record contains no order or docket entry by the judge
setting a trial date. We have had other occasions to address
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the absence of an order setting a criminal trial. We ruled as
follows:
The record contains no orders or docket
entries explaining the reason for the delay
in beginning the trial or supporting the
trial judge's finding that the . . . delay
was attributable to [the accused]. No
orders were entered granting continuances or
showing why the case was not scheduled for
trial within five months. . . . The
testimony of witnesses cannot stand in lieu
of findings and rulings of the trial judge
entered of record. To do so would diminish
the sanctity of the court's records. The
record of proceedings in a court of record
cannot be left to the vagaries of a swearing
contest between witnesses. Such is an
insufficient basis to establish why delay
occurred which prevented a criminal
defendant from receiving a speedy trial.
Adkins v. Commonwealth, 13 Va. App. 519, 522, 414 S.E.2d 188,
189 (1992) (citation omitted). See also Nelms v. Commonwealth,
11 Va. App. 639, 642, 400 S.E.2d 799, 801 (1991) (noting that
"[s]ince the matter had not been set for trial, neither the
accused nor the attorney for the Commonwealth had any reason to
move for a continuance"). In an earlier case, we noted the
following:
In determining responsibility for the delay
of a criminal trial, we must confine our
review to the record before us. Because of
the fragility of memories "[r]epresentations
of counsel, or even of the trial judge, if
not supported by the record, are
insufficient." A trial court's actions are
reflected in the record only through its
orders and decrees. Consequently, a trial
date scheduled by the court in a criminal
case must be documented before we may
consider it in evaluating trial delay, and
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no trial date was scheduled by the court in
this case.
* * * * * * *
Only the trial court, not the
Commonwealth's Attorney, has authority to
schedule criminal cases for trial. Code
§ 19.2-241 provides that "[t]he judge of
each circuit court shall fix a day of his
court when the trial of criminal cases will
commence, and may make such general or
special order in reference thereto. . . ."
This provision contemplates an orderly
procedure for setting criminal cases and
expressly places the control of that process
under the supervision of the trial court,
not a party litigant. The policy expressed
in this provision recognizes the role of the
trial judge in insuring the prompt
disposition of criminal cases.
Williams v. Commonwealth, 2 Va. App. 566, 569, 347 S.E.2d 146,
148 (1986) (citations omitted).
Not only was no order entered setting an initial trial date
for Powell's jury trial, the record in this case clearly
establishes that no order was entered setting a continued trial
date. On this record, the Commonwealth has not borne its burden
of proving a delay countenanced by Code § 19.2-243. Because
Powell was in custody and was not brought to trial within five
months of the finding of probable cause, as statutorily
mandated, the trial judge erred in failing to grant Powell's
motion to dismiss the indictments. We, therefore, reverse the
convictions for second degree murder and use of a firearm in the
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commission of murder and dismiss the indictments. We need not
address the remaining issues.
Reversed and dismissed.
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