CARDWELL v. COMMONWEALTH OF VIRGINIA

CARDWELL v. COMMONWEALTH
OF VIRGINIA

FEBRUARY 18, 1997
Record No. 0091-96-4

DAVID CARDWELL

v.

COMMONWEALTH OF VIRGINIA

—–

Record No. 0097-96-4

DAVID CARDWELL

v.

COMMONWEALTH OF VIRGINIA

Donald M. Haddock, Judge
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia

MEMORANDUM OPINION[1]
BY JUDGE JOHANNA L. FITZPATRICK
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

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.[2] 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
(the Alexandria charges).[3]
On May 18, 1994, appellant turned 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 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. 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 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
balance" is necessary. Barker, 407 U.S. at 530.[4]

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.

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
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.

FOOTNOTES:

[1]Pursuant
to Code ? 17-116.010 this opinion is not designated for
publication.

[2]We
consolidate Record No. 0091-96-4 and Record No. 0097-96-4 in this
appeal as the issue is identical.

[3] The record shows that the April
25 offense occurred "between one [p.m.] and five
[p.m.]." Appellant alleged that he 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.

[4] 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.