<\/p>\n
<\/a><\/p>\n <\/p>\n CARDWELL v. COMMONWEALTH FEBRUARY 18, 1997 DAVID CARDWELL <\/p>\n v. <\/p>\n COMMONWEALTH OF VIRGINIA <\/p>\n —–<\/p>\n Record No. 0097-96-4<\/p>\n DAVID CARDWELL <\/p>\n v.<\/p>\n COMMONWEALTH OF VIRGINIA<\/p>\n Donald M. Haddock, Judge MEMORANDUM OPINION[1]<\/strong><\/font><\/a> Kevin T. Gaynor, Assistant Public Defender, for appellant. <\/p>\n Michael T. Judge, Assistant Attorney General (James S. Gilmore, David Cardwell (appellant) was indicted for two counts of The offenses occurred on April 25, 1994 and April 30, 1994 On or about July 17, 1995, appellant was transported to the I’m not at all satisfied that, even in October, that these But I’m further satisfied that the prejudice claimed has not You all just want me to take on faith that, because he wrote But you have not set before me any proof, at this time, that The court denied appellant’s motion, and the case proceeded to "Under familiar principles of appellate review, we "’The determination of whether an accused has been denied Appellant argues on appeal that the fourteen-month delay The first factor, the length of the delay, is the mechanism The Commonwealth argues that the second factor, the reason for The third factor, appellant’s assertion of his right to a While appellant established the first three factors, he failed In the instant case, appellant did not experience Appellant next contends that he suffered anxiety due to the Lastly, we consider whether the delay impaired appellant’s Accordingly, appellant failed to demonstrate that the delay Affirmed.<\/u><\/p>\n <\/u> <\/p>\n FOOTNOTES: <\/font><\/p>\n [1]<\/strong><\/font><\/a>Pursuant [2]<\/strong><\/font><\/a>We
\n
\nOF VIRGINIA<\/strong><\/font> <\/p>\n
\n
\nRecord No. 0091-96-4<\/p>\n
\nPresent: Chief Judge Moon, Judges Willis and Fitzpatrick
\nArgued at Alexandria, Virginia<\/p>\n
\nBY JUDGE JOHANNA L. FITZPATRICK
\nFROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA<\/p>\n
\nIII, Attorney General, on briefs), for appellee. <\/p>\n
\n
\nobtaining property by false pretenses.[2]<\/strong><\/font><\/a> The sole issue raised in
\nthese appeals is whether appellant’s constitutional right to a
\nspeedy trial was violated. Finding no error, we affirm both
\nconvictions.<\/p>\n
\n(the Alexandria charges).[3]<\/strong><\/font><\/a>
\nOn May 18, 1994, appellant turned himself in to Arlington County
\nauthorities on unrelated charges, and was transported to Fairfax
\nCounty Adult Detention Center. On May 24, 1994, while
\nincarcerated, appellant was served with two warrants for
\nobtaining property by false pretenses in Alexandria. Appellant
\nallegedly made requests for a speedy trial on these charges, but
\nreceived no response. Appellant was convicted, sentenced, and
\nbegan serving time on his Fairfax County and Prince William
\nCounty charges while in jail. <\/p>\n
\nAlexandria Adult Detention Center. Soon thereafter, the grand
\njury indicted appellant for two counts of obtaining property by
\nfalse pretenses in violation of Code ? 18.2-178. On October 26,
\n1995, the trial court denied appellant’s pretrial motion to
\ndismiss, which claimed that his constitutional right to a speedy
\ntrial had been violated. The trial court found that appellant
\nfailed to establish any prejudice caused by the delay:<\/p>\n\n
\n supposed witnesses were available, and could be found. <\/p>\n
\n been proven, because there has been no showing that a current
\n effort has been made to locate any of these people, and that
\n that effort was unsuccessful. <\/p>\n
\n a letter, and it said "moved, no return address,"
\n or because he wrote a letter, and they said they wouldn’t
\n give him information about patients that, therefore, these
\n people cannot be located.<\/p>\n
\n an effort has currently been made, and that the Defendant is,
\n in fact, prejudiced. <\/p>\n<\/blockquote>\n
\na bench trial on November 3, 1995. Following the trial, the court
\nfound appellant guilty of both charges and on December 21, 1995,
\nsentenced appellant to two concurrent one-year sentences in
\nprison, to run consecutively with the sentences imposed in other
\njurisdictions. <\/p>\n
\nexamine the evidence in the light most favorable to the
\nCommonwealth, granting to it all reasonable inferences fairly
\ndeducible therefrom." Riddick v. Commonwealth<\/u>, 22 Va.
\nApp. 136, 139-40, 468 S.E.2d 135, 136 (1996). <\/p>\n
\nthe constitutional right to a speedy trial requires "a
\ndifficult and sensitive balancing process" in which the
\ncourt examines on an ad hoc<\/u> basis the conduct of both the
\nstate and the accused which led to a delay in prosecution.’"
\nJefferson v. Commonwealth<\/u>, Record No. 2943-95-1, slip op.
\nat 5 (Va. Ct. App. Dec. 31, 1996) (quoting Kelley v.
\nCommonwealth<\/u>, 17 Va. App. 540, 544, 439 S.E.2d 616, 618
\n(1994)). Each constitutional speedy trial allegation must be
\ndecided on a case-by-case basis, and four factors must be
\nconsidered in evaluating a speedy trial claim: (1) the length of
\nthe delay; (2) the reason for the delay; (3) the defendant’s
\nassertion of his right to a speedy trial; and (4) the prejudice
\nto defendant. See<\/u> Barker v. Wingo<\/u>, 407 U.S. 514
\n(1972); Riddick<\/u>, 22 Va. App. at 136, 468 S.E.2d at 139; Jefferson<\/u>,
\nRecord No. 2943-95-1, slip op. at 5-6 (Va. Ct. App. Dec. 31,
\n1996); and Arnold v. Commonwealth<\/u>, 18 Va. App. 218, 443
\nS.E.2d 183, aff’d<\/u>, 19 Va. App. 143, 450 S.E.2d 161 (1994)
\n(en banc). <\/p>\n
\nbetween the execution of the Alexandria arrest warrants and his
\ntransfer from Fairfax to Alexandria for trial violated his
\nconstitutional right to a speedy trial. He asserts that no
\nportion of the delay was attributable to him and that the delay
\nprejudiced him. Specifically, appellant alleges that because of
\nthe delay, he was unable "to locate or interview
\nwitnesses" and "was deprived of witnesses material to
\nhis case." He also speculates that, due to the delay, he
\n"lost the opportunity of potentially serving fully
\nconcurrent sentences" and that he was prevented from
\n"earning accelerated penitentiary time credit."
\nAccordingly, we evaluate the Barker<\/u> factors to determine
\nwhether the delay unduly prejudiced appellant and violated his
\nspeedy trial right. <\/p>\n
\nthat triggers an examination of the remaining considerations. Riddick<\/u>,
\n22 Va. App. at 136, 468 S.E.2d at 139. "Unless there is
\ndelay which is presumptively prejudicial, it is unnecessary to
\ninquire as to the other factors." Sheard v. Commonwealth<\/u>,
\n12 Va. App. 227, 231, 403 S.E.2d 178, 180 (1991) (citing Barker<\/u>,
\n407 U.S. 514). In the instant case, appellant was served with the
\nAlexandria warrants on May 24, 1994 while incarcerated for
\nunrelated charges committed in Fairfax County and Prince William
\nCounty. The Commonwealth proffered to the court that generally it
\ndid not, for "policy" reasons and pursuant to the
\n"preference of the Public Defender," "institute
\nthose proceedings until foreign jurisdictions are done."
\nTherefore, the Commonwealth argued, it could not institute the
\nAlexandria proceedings until the conclusion of the Fairfax County
\nand the Prince William County proceedings. Although these
\nproceedings concluded in September 1994 and November 1994
\nrespectively, appellant was not transferred to Alexandria until
\nJuly 17, 1995, and he was not indicted for the Alexandria
\noffenses until September 5, 1995. Regarding the period from
\nNovember to July, the Commonwealth conceded that there was
\n"no articulable reason . . . why proceedings were not
\ninstituted" in Alexandria. Based on this record, an
\n"inquiry into the other factors that go into the
\nbalance" is necessary. Barker<\/u>, 407 U.S. at 530.[4]<\/strong><\/font><\/a> <\/p>\n
\nthe delay, was "simple negligence" and appellant shares
\nthe blame for the delay due to his prosecution for unrelated
\ncharges during his incarceration. We disagree. "The
\nCommonwealth was obliged to bring [appellant] to trial with
\nreasonable promptness. It failed to do so." Arnold<\/u>,
\n18 Va. App. at 223, 443 S.E.2d at 186. Thus, we conclude that
\n"administrative derelictions ‘nevertheless should be
\nconsidered since the ultimate responsibility for such
\ncircumstances must rest with the government rather than with the
\ndefendant.’" Fowlkes v. Commonwealth<\/u>, 218 Va. 763,
\n768, 240 S.E.2d 662, 665 (1978) (quoting Barker<\/u>, 407 U.S.
\nat 531)). Although we attribute the delay to the Commonwealth’s
\nlack of diligence, this is less onerous than a deliberate or
\nmalicious motive on the part of the prosecutor. See<\/u> Jefferson<\/u>,
\nRecord No. 2943-95-1, slip op. at 7, (Va. Ct. App. Dec. 31,
\n1996). <\/p>\n
\nspeedy trial, is disputed. Assuming without deciding that the
\nevidence supported appellant’s allegation that he asserted his
\nright to a speedy trial, it does not end the inquiry. <\/p>\n
\nto establish the fourth factor — prejudice. We evaluate three
\nconcerns in the analysis of prejudice: (1) preventing
\n"oppressive pre-trial incarceration"; (2) minimizing
\nconcern and anxiety of the defendant; and (3) limiting the
\npossibility of harming the defense. See<\/u> Arnold<\/u>, 18
\nVa. App. at 223, 443 S.E.2d at 186. <\/p>\n
\n"oppressive pre-trial incarceration." At the time
\nappellant was served with the Alexandria warrants, he was
\nincarcerated and awaiting adjudication on unrelated charges in
\nFairfax County and Prince William County. Appellant was sentenced
\non these charges and consequently he remained incarcerated on
\nthese other unrelated offenses. Appellant’s assertions that he
\nlost the "potential" opportunity of serving fully
\nconcurrent sentences and that he was unable to earn accelerated
\npenitentiary time credit as a result of the delay is speculative
\nand does not equate with "oppressive pre-trial
\nincarceration." <\/p>\n
\ndelay. Appellant testified that he suffered from distress,
\napprehension, and anxiety stemming from the unresolved Alexandria
\ncharges. He further alleges that he required medication as a
\nresult of this anxiety. However, he also testified that prior to
\nhis incarceration, he took the same or similar medication for
\ndepression, and that he was hospitalized in Northern Virginia
\nMental Health Institute for depression and other conditions,
\nincluding cocaine withdrawal, prior to his arrest on these
\ncharges.<\/p>\n
\ndefense. Appellant argues that the delay resulted in his
\ninability to locate potential witnesses. We find no error in the
\ntrial court’s determination that appellant failed to establish
\nprejudice as he "made no showing that a current effort had
\nbeen made to locate them." Additionally, the trial court did
\nnot find appellant’s testimony credible. "The weight which
\nshould be given to evidence and whether the testimony of a
\nwitness is credible are questions the fact finder must
\ndecide." Bridgeman v. Commonwealth<\/u>, 3 Va. App. 523,
\n528, 351 S.E.2d 598, 601 (1986). The record shows that appellant
\ndid not provide his attorney with the names of any alleged
\nwitnesses, and that he made no significant efforts to locate
\nthem. Moreover, the evidence presented at trial contradicted
\nappellant’s testimony and his alibi defense. Further evidence
\nincluded the identification of appellant by prosecution witnesses
\nas the perpetrator of the crimes. <\/p>\n
\nimpaired his defense or otherwise caused him prejudice. For the
\nreasons stated, we affirm the judgments of the trial court.<\/p>\n
\nto Code ? 17-116.010 this opinion is not designated for
\npublication.<\/p>\n
\nconsolidate Record No. 0091-96-4 and Record No. 0097-96-4 in this
\nappeal as the issue is identical.<\/p>\n