Home / Fulltext Opinions / Virginia Court of Appeals / HAYES v. COMMONWEALTH OF VA




JUNE 16, 1998
Record No. 1177-97-4





James L. Berry, Judge
Present: Chief Judge Fitzpatrick, Judge Benton and Senior Judge
Argued at Alexandria, Virginia

Roger A. Inger (Travis J. Tisinger; Massie, Inger & Iden,
P.C.; Harrison & Johnston, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley,
Attorney General, on brief), for appellee.

In a jury trial in Frederick County, James Frank Hayes
(appellant) was found guilty of the first degree murder of his
wife, Lisa Hayes (Hayes). On appeal, he argues that he was denied
his Sixth Amendment right to a speedy trial. Finding no error, we
affirm appellant’s conviction.

On appeal, "[w]e review the evidence in the light most
favorable to the Commonwealth. The factual findings of the trial
court, if supported by credible evidence, will not be disturbed
on appeal." Williamson v. Commonwealth, 13 Va. App.
655, 656, 414 S.E.2d 609, 609?10 (1992).

On July 13, 1995, Hayes’ dead body was found near her wrecked
car in a Frederick County creek. Medical Examiner Dr. Frances
Field performed an autopsy on the body on July 14, 1995. The
autopsy report listed drowning as Hayes’ cause of death.

On November 9, 1995, appellant was indicted in Frederick
County for Hayes’ murder, and a March 18, 1996 trial was

On March 7, 1996, the Commonwealth moved to nolle prosequi
the murder charge. The prosecutor contended that on February 8,
1996, he was given information indicating that appellant killed
his wife at the apartment they shared in the City of Winchester.
Anna Oates had told the police that appellant suffocated his wife
with a pillow on the floor of the apartment and later disposed of
the body in the Frederick County creek. The prosecutor stated
that until the receipt of this information from Oates, it had
appeared that, pursuant to Code Sect. 19.2?247, venue was
proper in Frederick County.[2]
Upon questioning by the court, appellant refused to waive the
issue of venue and permit trial in Frederick County. The court
granted the Commonwealth’s motion to nolle prosequi.

On April 9, 1996, appellant was indicted in Winchester for his
wife’s murder, and a trial was scheduled for July 1, 1996. On
June 18, 1996, upon joint motion of the parties, the trial was
continued until July 22, 1996. On July 9, 1996, appellant
requested, and was granted, a continuance until September 17,

On September 17, 1996, the Winchester Circuit Court conducted
a hearing upon appellant’s motion to dismiss due to improper
venue. Oates testified that she saw appellant cover Hayes’ face
with a pillow on the living room floor of appellant’s Winchester
apartment. Oates assisted appellant by restraining Hayes’ legs.
Eventually, Hayes stopped struggling and appellant removed the
pillow. Oates did not observe Hayes breathing, but did not check
her pulse to see if she was still alive. After bathing and
redressing Hayes, appellant carried her to the car. Hayes
exhibited no signs of life. Appellant drove the car to the
embankment of a Frederick County creek. He positioned Hayes in
the car and sent the car over the embankment into the creek.
Oates testified that she had never seen a dead person before, and
she had avoided looking at Hayes as much as possible.

Dr. Field testified that during the autopsy of Hayes’ body she
found several symptoms that were consistent with an asphyxial
death, which could have occurred either by smothering or
drowning. She stated that there were no specific autopsy findings
which would differentiate between smothering or drowning as the
cause of death. Dr. Field noted bruising and pressure marks about
Hayes’ face and neck which, Dr. Field opined, were inflicted
prior to Hayes’ death. Dr. Field confirmed that it is possible
for a person to be asphyxiated to the point of unconsciousness,
short of death.

Dr. Cyril Wecht, a forensic pathologist, testified that no
autopsy findings exist which are exclusive to death by drowning.
In reviewing Dr. Field’s autopsy report, Dr. Wecht noted only a
few of the characteristics generally found with a death by
smothering. Based upon the autopsy report, Dr. Wecht could not
state the cause of Hayes’ death.

The Winchester judge concluded that Frederick County was the
proper forum since the cause of Hayes’ death could not be
determined. He dismissed appellant’s murder indictment without

On October 10, 1996, appellant again was indicted in Frederick
County for the murder of his wife. Soon after his indictment,
appellant agreed to a trial date of January 31, 1997. On January
17, 1997, the case was continued upon appellant’s motion until
March 31, 1997.

On March 21, 1997, appellant filed a motion to dismiss the
proceedings as violative of his constitutional right to a speedy
trial. At a hearing on March 27, 1997, Investigator Greg Locke
testified that, based upon his preliminary investigation of
Hayes’ death, he disagreed with the autopsy report and did not
believe drowning had caused Hayes’ death. He stated that Oates
had first told the police in February of 1996 that appellant
killed his wife at an apartment in Winchester. Oates had said
that Hayes remained motionless on the floor for a long period of
time and did not appear to be breathing. Oates, however, did not
check Hayes’ vital signs to see if she was still alive.

Locke further testified that he contacted Dr. Field on March
7, 1996 to discuss the autopsy report. Dr. Field told Locke that
she had listed Hayes’ death as a drowning because the body was
found in a creek. Locke advised Dr. Field of Oates’ statement.
Dr. Field indicated that the signs and symptoms of drowning are
the same as suffocation, so that the murder could have occurred
in either Frederick County or Winchester.

Appellant contended that his constitutional right to a speedy
trial had been violated, arguing that in February of 1996 Locke
should have questioned Oates more thoroughly about her
observations of Hayes after the suffocation. Had Locke done so,
appellant claimed, the Commonwealth would not have nolle prosequied
the original Frederick County charge because the location of
Hayes’ death would have appeared unclear. Appellant asserted that
five subpoenas for witnesses at trial had been returned as
"not found" and that the unavailability of those
witnesses was due to the delay in bringing appellant to trial.
Concluding that any delay attributable to the Commonwealth was
justifiable, the trial court found that appellant’s
constitutional speedy trial right had not been violated.

Appellant’s trial commenced on March 31, 1997. A jury found
him guilty of first degree murder.

In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme
Court of the United States, "recognizing the difficulty in
evaluating speedy trial claims, adopted a balancing test"
which "identified four factors to be assessed by courts in
determining whether a particular defendant had been deprived of
his speedy trial right: (1) the length of delay; (2) the reason
for the delay; (3) the defendant’s assertion of his right; and
(4) the prejudice to the defendant." Holliday v.
, 3 Va. App. 612, 616, 352 S.E.2d 362, 364
(1987). There is, however, no "precise formula for
determining when a constitutional right to a speedy trial has
been abridged." Moten v. Commonwealth, 7 Va. App.
438, 445, 374 S.E.2d 704, 708 (1988). "Balanced in this
analysis is the conduct of both the prosecution and the
defendant, the relative degree of fault to be attributed to that
conduct, and the consequences of the remedies requested." Beachem
v. Commonwealth
, 10 Va. App. 124, 130, 390 S.E.2d 517,
519?20 (1990).

The first factor in Barker, the length of the delay,
triggers inquiry into the remaining three factors when "the
delay involved becomes ‘so protracted as to be
"presumptively prejudicial" . .
. .’" Id. at 131, 390 S.E.2d at 520 (citation
omitted). In this case, sixteen months passed from the date of
appellant’s initial indictment in Frederick County until his
trial commenced. This delay requires us to address the remaining
three factors set forth in Barker. See Arnold v.
, 18 Va. App. 218, 223, 443 S.E.2d 183, 186, aff’d
on reh’g en banc
, 19 Va. App. 143, 450 S.E.2d 161 (1994).

"Once shown that there has been a delay that is
‘presumptively prejudicial,’ the burden ‘devolves upon the
Commonwealth to show, first, what delay was attributable to the
defendant and not to be counted against the Commonwealth, and,
second, what part of any delay attributable to the prosecution
was justifiable.’" Beachem, 10 Va. App. at 131?32,
390 S.E.2d at 520 (citation omitted).

The Commonwealth concedes that the first portion of the delay,
from the initial indictment in Frederick County until the nolle
prosequi of that charge, is chargeable to the prosecution,
but contends that the delay was justifiable. Appellant argues
that if the Commonwealth had adequately investigated the matter,
it would not have nolle prosequied the proceedings
because the location of Hayes’ death would have appeared clouded
with uncertainty, rendering Frederick County the proper forum.

Ordinarily, "the prosecution of a criminal case shall be
had in the county or city in which the offense was
committed." Code Sect. 19.2?244. Where a killing has
occurred "under circumstances which make it unknown where
such crime was committed," the crime may be prosecuted where
the body was found. Code Sect. 19.2?247.

The parties have cited no cases, and we have found none,
defining the degree of proof necessary to establish that a
"homicide has been committed . . . under
circumstances which make it unknown where such crime was
committed" pursuant to Code Sect. 19.2?247. However,
concerning questions of venue, "the Commonwealth must
produce evidence sufficient to give rise to a ‘strong
presumption’ that the offense was committed within the
jurisdiction of the court, and this may be accomplished by either
direct or circumstantial evidence." Cheng v. Commonwealth,
240 Va. 26, 36, 393 S.E.2d 599, 604 (1990). See also Davis
v. Commonwealth
, 14 Va. App. 709, 711, 419 S.E.2d 285, 287

Hayes’ body was found in Frederick County, and the autopsy
report indicated that she drowned there. Following the initial
indictment in Frederick County, however, the Commonwealth
received information from Oates indicating that appellant may
have actually killed his wife before transporting her in the car
to the creek. Oates stated that Hayes remained motionless and
showed no signs of life after appellant had smothered her. This
description tended to prove that appellant killed his wife in
Winchester. Moreover, Dr. Field advised Locke that she had ruled
the case a drowning only because Hayes was found in water. At the
time the Commonwealth moved to nolle prosequi the
original Frederick County indictment, it was logical to assume
that the evidence, when presented at trial, would prove that
Hayes died in Winchester and that venue was proper in Winchester
pursuant to Code Sect. 19.2?244. Consequently, the
Commonwealth’s decision to nolle prosequi the
Frederick County indictment, rather than face a possible
dismissal on grounds of improper venue, was reasonable. Only
through clairvoyance could the prosecutor have known that the
Winchester court, when faced with two medical opinions that
Hayes’ cause of death could not be determined, would dismiss the
Winchester proceedings. There is no evidence that the
Commonwealth deliberately selected such a circuitous route to
bring appellant to trial, or that the procedure was employed
intentionally to gain strategic advantage. The delay associated
with the initial proceedings in Frederick County, therefore, was
justifiable under the circumstances.

By requesting or concurring in continuances in the subsequent
proceedings in Winchester and Frederick County, appellant
contributed to the length of the delay. See Williamson,
13 Va. App. at 658, 414 S.E.2d at 610. In Winchester, appellant
concurred in a continuance from June 18 to July 22, 1996. During
that period of time the case was continued upon appellant’s
motion to September 17, 1996. In Frederick County on January 17,
1997, appellant was granted a continuance of the January 31 trial
date until March 31, 1997.

Additionally, nearly a month passed between the dismissal of
the Winchester indictment and the re?institution of proceedings
in Frederick County. This period of time should not be counted
against the Commonwealth. See United States v.
, 456 U.S. 1, 7 (1982) (the Sixth Amendment speedy
trial clause "has no application after the Government,
acting in good faith, formally drops charges. Any undue delay
after charges are dismissed, like any delay before charges are
filed, must be scrutinized under the Due Process Clause, not the
Speedy Trial Clause."). Therefore, at least six months of
the ensuing delay following the nolle prosequi was
either attributable to appellant or excludable from speedy trial

With regard to the third factor under Barker, we note
that appellant objected to the granting of the nolle prosequi
on March 7, 1996, and again asserted his right in a motion to
dismiss prior to trial.

Finally, in determining the factor of prejudice, we consider
three interests: "'(1) preventing oppressive pretrial
incarceration; (2) minimizing the accused’s anxiety; and (3)
limiting the possibility that the defense will be
impaired.’" Arnold, 18 Va. App. at 224, 443 S.E.2d at
187 (citation omitted).

Appellant contends that he suffered great stress while
awaiting trial. The record does not reflect, however, that
appellant suffered anxiety any greater than any other similarly
situated defendant awaiting trial upon a murder charge.

Furthermore, other than the simple passage of time, appellant
has demonstrated no prejudice from the delay. The record does not
reveal the nature or substance of the anticipated testimony of
the witnesses appellant claims he was prevented from calling.
"To conclude on this record that [appellant’s] defense was
impaired by the delay in bringing him to trial would require
nothing short of sheer speculation on our part." Beachem,
10 Va. App. at 134, 390 S.E.2d at 522. We decline to engage in
such speculation.

Balancing our conclusions regarding the four Barker
factors, we find that the trial judge did not err in concluding
that appellant was not denied his constitutional right to a
speedy trial. Although we conclude that a portion of the delay in
bringing appellant to trial was attributable to the Commonwealth,
the trial judge did not err in finding that the delay was
justifiable. We find no evidence of prejudice associated with the
delay. Accordingly, we affirm appellant’s conviction.







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

Code Sect. 19.2?247 provides that "[w]here evidence
exists that a homicide has been committed . . . under
circumstances which make it unknown where such crime was
committed, the offense shall be amenable to prosecution in the
courts of the county or city where the body of the victim may be
found, as if the offense has been committed in such county or