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No Mistrial for Jail Credit Comment

At defendant’s trial for credit card fraud, the trial court did not err in denying a mistrial after informing the jury that defendant, who testified that he had been incarcerated while awaiting trial, would receive credit for his jail time; the Court of Appeals affirms defendant’s convictions.

We find the trial court’s instructions in this case akin to those in Fishback v. Commonwealth, 260 Va. 104 (2000), that removed the possibility that the jury would act upon misconceptions. Defendant, without invitation from the commonwealth, interjected into this case the issue of his incarceration while awaiting trial. We recognize that such information ordinarily is not presented to the jury. However, during his own defense, defendant testified that he was arrested and incarcerated on July 13, 2011, and that he remained incarcerated while awaiting trial on July 11, 2012.

While deliberating during the sentencing stage, the jury expressed confusion about what effect, if any, defendant’s incarceration while awaiting trial would have on his sentence. The trial court responded, correctly in our view, that defendant would receive a credit for time he had been held in custody.

In view of defendant’s own testimony regarding his arrest and pretrial incarceration, the duration of his pretrial incarceration (i.e., the basis for his credit) is easily discernible. Defendant’s right to receive a credit for the time he served while awaiting trial is not speculative. Nor is it discretionary.

If the trial court had responded as defendant suggests it should have – by instructing the jury only to impose such sentence as it deemed appropriate and not to consider what may occur afterward – the jury would have been without significant and appropriate information necessary to prevent potential misconceptions concerning the effect of its decision. The trial court’s instruction resolved any misconception without creating any attendant risk of speculation. We find no error in the trial court’s instructions.

The trial court did not err by instructing the jury that defendant would receive a credit for the time he was incarcerated while awaiting trial.

Convictions affirmed.

Bruton v. Commonwealth (Alston) No. 1636-12-1, April 1, 2014; Va. Beach Cir.Ct. (Shockley) Afshin Farashahi for appellant; Elizabeth C. Kiernan C. Kiernan, AAG, for appellee. VLW 014-7-098, 7 pp.

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