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POWELL v. COMMONWEALTH (54453)


POWELL v. COMMONWEALTH


MAY 25, 1999

Record No. 1051-98-2

LOUIS JORDAN POWELL, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HALIFAX COUNTY

Charles L. McCormick, III, Judge

Present: Judges Benton, Coleman and Elder

Argued at Richmond, Virginia

OPINION BY JUDGE JAMES W. BENTON, JR.

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
Sect. 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 Sect. 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 substituting another attorney to represent Powell. On October
8, 1996, Powell’s attorney filed a motion pursuant to Code
Sect. 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 Sect. 19.2-243. "If [the
accused] is not tried within the time specified in Code
Sect. 19.2-243, the burden is on the Commonwealth 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 Sect. 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 Sect. 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 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 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 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 Sect. 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
Sect. 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 commission of murder and dismiss the
indictments. We need not address the remaining issues.

Reversed and dismissed.

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