Opinion
Docket No.: CR16-0064-00/01 Docket No.: CR16-3227-00/01
03-19-2017
COMMONWEALTH OF VIRGINIA v. TYQUON FEIMSTER
ORDER DENYING DEFENDANT'S MOTION TO QUASH AND DISMISS ALL INDICTMENTS FOR VIOLATION OF DEFENDANT'S RIGHT TO SPEEDY TRIAL
Defendant Tyquon Feimster ("Feimster") filed a Motion to Quash and Dismiss All Indictments for Violation of Defendant's Right to Speedy Trial ("Motion"), alleging that both his statutory and constitutional rights to a speedy trial have been violated. He therefore seeks to have all indictments against him dismissed. Specifically, Feimster seeks dismissal of three sets of indictments related to events leading to the death of Raheem White on September 22, 2015: CR16-0064-00/01 (the "First Indictment"), CR16-2389-00/01 (the "Second Indictment"), and CR16-3227-00/01 (the "Third Indictment").
A hearing on the Motion was held on February 27, 2017. Based on the pleadings, arguments at the hearing, and applicable authorities, the Court DENIES Feimster's Motion to Quash and Dismiss All Indictments for Violation of Defendant's Right to Speedy Trial.
DISCUSSION
A. The Statutory Right to a Speedy Trial
Section 19.2-243 of the Code of Virginia requires the Commonwealth to commence prosecution of a defendant within five months of a finding of probable cause if he is held in custody. Va. Code § 19.2-243 (2015 Repl. Vol.). Virginia appellate courts have interpreted the "five months" to equate to "152 and a fraction days." Wallace v. Commonwealth, 65 Va. App. 80, 89, 774 S.E.2d 482, 486 (2015). The speedy-trial clock begins to run on one of the following: (i) the day after the preliminary hearing at which probable cause is found, (ii) the arrest of the defendant if he is directly indicted, or (iii) the date the indictment was found against the defendant if the defendant is in custody when directly indicted,. Va. Code § 19.2-243; Harris v. Commonwealth, 21 Va. App. 347, 349-50, 464 S.E.2d 516, 517 (1995).Any delays attributed to the defendant toll the statutory speedy-trial calculation. Wallace, 65 Va. App. at 89, 774 S.E.2d at 486.
Per Virginia statute, some delays toll the speedy-trial clock, but "the burden of demonstrating that a delay in commencing trial is excused under Code § 19.2-243 lies upon the Commonwealth." Brown v. Commonwealth, 57 Va. App. 381, 389, 702 S.E.2d 582, 586 (2010) (quoting Robinson v. Commonwealth, 28 Va. App. 148, 153, 502 S.E.2d 704, 706 (1998)). "Proper assessment and determination of the merits of a statutory speedy-trial claim 'involve a review of the whole record and a consideration of the trial court orders in the context of the record that comes before' the court." Id. at 389-90, 702 S.E.2d at 586 (quoting Baity v. Commonwealth, 16 Va. App. 497, 503, 431 S.E.2d 891, 895 (1993)).
1. The First Indictment (CR16-0064-00/01)
Warrants were taken out against Feimster for second-degree murder and use of a firearm in the commission of a felony. The Commonwealth concedes that the speedy-trial clock ran from January 8, 2016, the day after probable cause was found at a preliminary hearing, to February 17, 2016, when a joint continuance request was granted, which totals 40 days . (Commonwealth's Resp. in Opp'n to Def.'s Mot. to Quash and Dismiss All Indictments for Violation of Def.'s Right to a Speedy Trial ("Resp.") 4-5.) The parties agree that the case was continued on joint motions from February 17 to September 19, 2016. (Id.; Def.'s Mot. to Quash and Dismiss All Indictments for Violation of Def.'s Right to a Speedy Trial ("Mot.") 3.) This joint continuance period tolls the speedy-trial clock. See Va . Code § 19.2-243(4) (stating that a delay period is excused and not attributable to the Commonwealth if the delay is caused "[b]y continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth").
On September 19, 2016, the Court—on the Commonwealth's motion over Feimster's objection—continued the case to January 30, 2017, but specifically tolled the speedy-trial calculation between December 1, 2016, and January 30, 2017. (Sept. 19, 2016, Criminal Continuance Order.) The speedy-trial clock therefore ran between September 19 and December 1, 2016, for an additional 73 days .
Another judge from this Court heard and ruled on this motion.
On January 27, 2017, Feimster requested the case be continued and—under the circumstances—asked that the speedy-trial clock not be tolled between January 27, 2017, and the trial date; the Court granted Feimster's continuance request but specifically stated that the time period would not count against the Commonwealth for speedy trial purposes. (Jan. 27, 2016, Tr. 33, 36.) The Court entered an Order on January 30, 2017, in which it memorialized the Court's January 27, 2017, decision and continued the case to April 3, 2017—the current trial date. (Jan. 30, 2017, Criminal Continuance Order.) The total time related to Feimster's right to a speedy trial based on the current trial date therefore is 113 days .
Once again, another judge from this Court heard and ruled on this motion.
In his Motion, Feimster argues that all of the time between September 19, 2016, and the current trial date of April 3, 2017, should be counted against the Commonwealth for speedy trial purposes. (Mot. 3.) Feimster's speedy-trial argument centers on two specific Court-ordered tolling periods: December 1, 2016, to January 30, 2017 (the "First Tolling Period"), and January 30, 2017, to April 3, 2017 (the "Second Tolling Period").
The First Tolling Period stemmed from the Commonwealth's request for a continuance on September 19, 2016. The continuance was granted over Feimster's objection, and the Court ordered that the speedy-trial clock would run during the duration of the continuance time with the exception of the First Tolling Period, as the Commonwealth was available for trial as of December 1, 2016, but the defendant was not. (Sept. 19, 2016, Tr. 38-39.) The Court agrees with the Commonwealth that although "the Commonwealth bears a significant responsibility to assure a trial in compliance with the statutory speedy trial requirements of Va. Code § 19.2-243[, t]his does not mean . . . that defense counsel can refuse to set a case within a reasonable time so as to create a speedy trial issue." (Commonwealth's Resp. in Opp'n to the Addendum to Def.'s Mot. to Quash and Dismiss All Indictments for Violation of Def.'s Right to a Speedy Trial 2.)
Feimster also elected to have a jury trial and was arraigned on January 30, 2017.
The Second Tolling Period stemmed from the defendant's request for a continuance on January 27, 2017. Feimster argued—despite it being his request for a continuance—that the speedy-trial clock should not be tolled because his request was based on recent production of discovery materials by the Commonwealth. (Mot. 6-7.) The Court declined to adopt Feimster's position, in part because (i) Feimster's alibi notice was deficient and (ii) Feimster had notice of the prior inconsistent witness statements that were the subject of the discovery materials Feimster had recently received. (Jan. 27, 2017, Tr. 33, 36.)
Of note, Feimster filed a "Second Notice of Alibi - Amended" on February 23, 2017.
The judge stated the following: "I understand how [the recent discovery material] was given, but it's not the first time you-all had been made aware that there was some inconsistencies concerning [the witness]. With that being said, I'm not going to make it count against the Commonwealth." (Jan. 27, 2017, Tr. 33.)
Feimster's current position ignores—or perhaps challenges—the Court's prior rulings on September 19, 2016, and January 27, 2017 (as memorialized on January 30, 2017), as Feimster's arguments at the February 27, 2017, hearing on his Motion were the same as those he previously made—or could have made—to the Court. Regarding the Court's January 27, 2017, ruling, the Court also notes that it would be unprecedented to run the speedy-trial clock based on a defendant's request for a continuance. See, e.g., Taylor v. Commonwealth, 4 Va. App. 45, 51, 354 S.E.2d 74, 78 (1987) ("Absent a showing of bad faith on the part of the Commonwealth, we are unwilling to impute the continuances to the Commonwealth. . . . The defendant requested and was granted the continuances; consequently, the delay under the statute is attributed to him."). The speedy-trial statute expressly provides that a period of delay is excused and not attributable to the Commonwealth if the delay is caused "[b]y continuance granted on the motion of the accused or his counsel, or by concurrence of the accused or his counsel in such a motion by the attorney for the Commonwealth." Va. Code § 19.2-243(4) (emphasis added). Here, the Court's January 30, 2017, order clearly states that the case was continued "on motion of Defendant." (Jan. 30, 2017, Order.)
The Court declines to re-litigate matters on which it already has ruled or to otherwise provide Feimster the proverbial second bite at the apple on those issues. Based on the current trial date of April 3, 2017, the First Indictment does not violate Feimster's statutory right to a speedy trial.
2. The Second Indictment (CR16-2389-00/01)
Direct indictments for first-degree murder and use of a firearm in the commission of a felony were returned on September 7, 2016, while Feimster was in custody. As discussed supra, on September 19, 2016, the Court—on the Commonwealth's motion over Feimster's objection— continued the case to January 30, 2017, but specifically tolled the speedy-trial clock from December 1, 2016, to January 30, 2017. (Sept. 19, 2016, Criminal Continuance Order.) On November 30, 2016, the Commonwealth moved to nolle prosequi the Second Indictment. Despite Feimster's objection that the Commonwealth failed to demonstrate the requisite good cause, the Court granted the nolle prosequi. (Dec. 6, 2016, Felony Order—Nolle Prosequi.) These indictments therefore are no longer active.
A Scheduling Order for this case entered by the Court on September 23, 2016, also indicates that "speedy trial tolled against Commonwealth 12/1-1/20/17." (Sept. 23, 2016, Scheduling Order.)
Based on the First Indictment and a pending unrelated felony charge (CR15-2967), the nolle prosequi did not result in the release of Feimster from custody. Feimster had been found guilty of the unrelated charge on June 27, 2016, and was sentenced on December 2, 2016, to three years of incarceration, with two years suspended. (CR15-2967, Dec. 1, 2016, Sentencing Order.)
3. The Third Indictment (CR16-3227-00/01)
Direct indictments for first-degree murder and use of a firearm in the commission of a felony were returned on December 7, 2016, while Feimster was in custody. As discussed supra, on January 27, 2017, the Court granted Feimster's request for a continuance and specifically stated that the continuation time period would not count for speedy trial purposes. (Jan. 27, 2017, Tr. 33, 36.) The Court entered an Order on January 30, 2017, which memorialized the Court's January 27, 2017, decision, and continued the case to April 3, 2017—the current trial date. (Jan. 30, 2017, Criminal Continuance Order.) The total time for speedy trial purposes based on the current trial date therefore is 54 days.
Although Feimster states in his Motion that the Third Indictment "is at issue but is of no consequence to this speedy trial motion," he goes on to make arguments related to the Third Indictment. (Mot. 4.)
In his Motion, Feimster argues that "the court granted the nolle prosequi without prejudice to any motions the Defense may make" and that "specifically the Court recognized that speedy trial may be an issue." (Mot. 5-6.) Feimster implies that the nolle prosequi should be ignored and that the Third Indictment (for first-degree murder and use of a firearm in the commission of a felony) somehow should be viewed as an extension of the Second Indictment (for the same charges), thereby including days from both indictments in the speedy-trial calculation. As an initial matter, the Court disagrees with Feimster's characterization of the Court's comments at the hearing at which the motion to nolle prosequi was granted. According to the November 30, 2016, hearing transcript, the judge said the following:
Yet again, another judge from this Court heard and ruled on this motion.
I am going to grant the motion to nol-pros the indictments, however, without prejudice to you to make whatever other motions you want to make in the future should the charges be brought back, whether it be speedy trial motions you want to make, anything of the sort, I think that would be the time to make it and for the Court to determine what the consequences of the nol-pros are or not on that issue.(Nov. 30, 2016, Tr. 6.) It appears that the judge was simply indicating that the only motion before the Court at the time was the motion to nolle prosequi the Second Indictment—and that Feimster was free to bring any future motions before the Court should he be re-indicted on the same charge, as Feimster deemed appropriate.
Section 19.2-265.3 of the Code of Virginia provides that a "nolle prosequi shall be entered only in the discretion of the court, upon motion of the Commonwealth with good cause therefor shown." Va. Code § 19.2-265.3. Hence, as the Virginia Supreme Court has noted, "[t]he express language of the statute commits a finding of good cause to the discretion of the trial court." Harris v. Commonwealth, 258 Va. 576, 583, 520 S.E.2d 825, 829 (1999) (emphasis added). The Court is not aware of any requirement for a court to articulate the exact nature of the good cause found, and no evidence of prosecutorial bad faith or oppressive behavior has been presented. One distinguished Virginia Circuit Court Judge—who now is a federal district court judge—opined as follows:
In balancing the roles of the branches of our government and giving due respect to the separation of powers between those branches, the Commonwealth is "first and presumptively the best judge of whether a pending prosecution should be terminated . . . [and] the exercise of its discretion with respect to the termination of pending prosecutions should not be judicially disturbed unless clearly contrary to manifest public interest." See United States v. Cowan, 524 F.2d 504, 507-13 (5th Cir. 1975). In determining whether a prosecutor's exercise of its discretion to terminate prosecution of a case is clearly contrary to manifest public interest, the Virginia appellate court decisions have found that, when the facts demonstrate bad faith or oppressive tactics, good cause does not exist. Harris v. Commonwealth, 258 Va. 576, 584, 520 S.E.2d 825, 830 (1999).Commonwealth v. Waddler, 66 Va. Cir. 257, 264-265 (2004) (Davis, J.).
The impact of a nolle prosequi on the statutory speedy-trial calculation is clear. "Under Virginia procedure a nolle prosequi is a discontinuance which discharges the accused from liability on the indictment to which the nolle prosequi is entered." Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269, 273 (1977). A new indictment therefore is a new charge, which is distinct from the original charge or indictment. "When an original indictment is supplanted by a second indictment, the terms contemplated by [Code § 19.2-243] are to be counted from the time of the second indictment." Brooks v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969); see also Commonwealth v. Smith, No. 0985-12-3, 2012 Va. App. LEXIS 372, at *7 (Nov. 20, 2012) (citing Duggins v. Commonwealth, 59 Va. App. 785, 722 S.E.2d 663 (2012)) ("Absent a challenge of constitutional dimensions, no Virginia appellate court has ever held that the [nolle prosequi] run-anew principle is subject to any exceptions.").
Feimster's reliance on the Virginia Court of Appeals' recent ruling in Harvey v. Commonwealth, No. 1460-15-3, 2017 Va. App. LEXIS 41 (Feb. 21, 2017)—to conclude that "[t]he Orders of September 19, 2016 and September 23, 2016 tolling the speedy trial were not lawful orders because the Court was without authority to toll the speedy trial statute"—is misplaced. (Addendum to Def.'s Mot. to Quash and Dismiss All Indictments for Violation of Def's Right to a Speedy Trial 2.) The relevant facts in Harvey were as follows: the Commonwealth moved for a continuance within twenty-four hours of a scheduled jury trial; the defendant objected; the motion was granted over objection; at a hearing the following day counsel discussed and set a trial date that—unbeknownst to them at the time—was beyond the speedy-trial window; and an order was entered expressly indicating that the defendant was not waiving his speedy-trial rights. Harvey, at *2. The specific issue before the court was whether defendant had waived his right to a speedy trial based on his counsel's "agreement" to the untimely trial date. Id. at *10-11. The trial court found that he had, and the Court of Appeals reversed. Id. at *23. Specifically, the Court of Appeals held that (1) the trial court abused its discretion in finding that the defendant waived his right to a speedy trial through comments at the hearing in light of the express statement in the trial court's order that defendant was not waiving his right to a speedy trial, and (2) the trial court's denial of defendant's motion to dismiss the indictments was reversible error because neither the defendant nor his counsel intended to waive defendant's speedy-trial rights. Id. at *22-23.
The facts in Harvey are easily distinguishable from those present here. The First Tolling Period was based on Feimster's unavailability for trial, and the Second Tolling Period stemmed from Feimster's request for a continuance and—based on the Court's findings—was required in part as a result of Feimster's deficient alibi notice. In the instant case, there is no issue of a trial date inadvertently scheduled beyond the statutory speedy-trial window, and the Court heard arguments and ruled on the challenged tolling periods.
Significantly, even if the Court were to somehow consider the Third Indictment an extension of the Second Indictment for speedy trial purposes, Feimster's statutory right to a speedy trial has not been violated. As noted supra, the Second Indictment was returned on September 7, 2016, while Feimster was in custody. Even ignoring the Court's ruling that the Second Indictment speedy-trial period would have been tolled between December 1, 2016, and January 30, 2017—in light of the eventual nolle prosequi of the Second Indictment—the speedy-trial duration would be between September 7, 2016, and January 30, 2017, or 145 days.
Had the Second Indictment not been subject to the nolle prosequi and had the Third Indictment not been found against Feimster, the speedy trial clock clearly would have been tolled between December 1, 2016, and January 30, 2017, based on the Court's September 19, 2016, ruling. (Sept. 19, 2016, Criminal Continuance Order.)
Moreover, even if the Court were to somehow consider the Third Indictment as an extension of the First Indictment —under the rationale that when the nolle prosequi of the Second Indictment was granted, the defendant was not released from custody because of the First Indictment—Feimster's statutory right to a speedy trial still has not been violated. Under such a construct, the speedy-trial clock would run from January 8, 2016, the day after probable cause was found at Feimster's preliminary hearing, to February 17, 2016, when a joint continuance request was granted ( 40 days ), and from September 19 to December 1, 2016 ( 73 days ), for a total of 113 days.
This ignores the fact that the First Indictment consisted of second-degree murder and use of a firearm charges and the Third Indictment consisted of first-degree murder and use of a firearm charges.
As discussed supra, Feimster also was being held in custody on an unrelated felony charge.
Based on the foregoing, the Court finds that Feimster's statutory right to a speedy trial has not been violated. B. The Constitutional Right to a Speedy Trial
In addition to Feimster's statutory right to a speedy trial, he has a constitutional right to a speedy trial. "The right to speedy trial is a more vague concept than other procedural rights [under the Constitution]. It is . . . impossible to determine with precision when the right has been denied." Barker v. Wingo, 407 U.S. 514, 521 (1972). The factors to be considered by a court in evaluating a constitutional speedy-trial challenge are the following: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) the prejudice to the defendant. Id. at 530. "None of these four factors are regarded as 'either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial but, rather, are related factors and must be considered together with such other circumstances as may be relevant.'" Miller v. Commonwealth, 29 Va. App. 625, 632, 513 S.E.2d 896, 900 (1999) (quoting Holliday v. Commonwealth, 3 Va. App. 612, 616, 352 S.E.2d 362, 364 (1987) (citation omitted)).
When applying the Barker test, the threshold question is whether the defendant has been adversely affected by the length of any delay. Riddick v. Commonwealth, 22 Va. App. 136, 144, 468 S.E.2d 135, 139 (1996) (citing Barker, 407 U.S. at 530) ("[T]he length of delay is the 'mechanism' which 'triggers' an examination of the remaining considerations."). "If the delay is not shown to be 'presumptively prejudicial,' there is no necessity for 'inquiry into the other factors that go into the balance.'" Id.; see also Beachem v. Commonwealth, 10 Va. App. 124, 133, 390 S.E.2d 517, 521 (1990) ("A defendant must be able to at least raise the presumption that . . . the delay involved was so detrimental as to have endangered his right to a fair trial.").
In the instant case, no more than 145 total days of Feimster's incarceration since the probable-cause finding can be found to be attributable to the Commonwealth. The Court also notes that, as discussed supra, regardless of how the Indictments are artificially merged—including without consideration of the nolle prosequi of the Second Indictment—Feimster's statutory right to a speedy trial is not implicated. The Court finds that the length of the delay is not presumptively prejudicial such that it endangered Feimster's right to a fair trial. The Court therefore need not inquire into the other Barker factors.
This calculation attributes the December 1, 2016 - January 30, 2017, delay to the Commonwealth, based on (i) the assumption that the Third Indictment was an extension of the Second Indictment and (ii) the fact that the Court's ruling regarding the delay technically did not apply to the Third Indictment, as the Third Indictment had not yet been found when the Court made its ruling on the delay.
Even if the Court were to consider the remaining factors, however, those factors do not raise any significant constitutional concerns. With respect to the reason for the delay, the Commonwealth properly notes that most of the delay resulted from joint requests for continuances; in fact, the Commonwealth only asked for a single continuance—on September 19, 2016. With regard to assertion of the speedy-trial right, although Feimster recently asserted the right, the evidence—including, inter alia, four consecutive joint motions for continuances that collectively continued the case for more than seven months—indicates that Feimster was at least complicit in delaying his trial.
Regarding the prejudice prong, the Virginia Court of Appeals has pointed out that "[i]n considering prejudice to the defendant, the Barker court identified three types of interests safeguarded by the sixth amendment right to speedy trial: (i) preventing oppressive pretrial incarceration; (ii) minimizing anxiety and concern of the accused; and (iii) limiting the possibility that the defense will be impaired." Beachem, 10 Va. App. at 131, 390 S.E.2d at 520 (citing Barker, 407 U.S. at 532). No evidence of oppressive pretrial incarceration has been presented other than the implication that any delay resulted in additional unnecessary pretrial incarceration. Although Feimster's counsel claims that Feimster "has become more agitated and anxious as the case has been repeatedly continued because he is being held on charges for which he believes he is innocent" (Mot. 8), no supporting evidence was presented. It also is questionable whether there was any additional pretrial incarceration, because during at least a portion of the pretrial period Feimster was being held and ultimately was sentenced to active time for an unrelated felony. Feimster also asserts that the delay has impaired his defense because "a material witness, Deborah Richardson, has become ill and will be unable to attend trial." (Id.) According to the Commonwealth, however, Ms. Richardson's view of the incident was limited compared to that of her husband, Wallace Richardson, who was seated next to his wife in their automobile at the time of the incident and is expected to be at trial. The Commonwealth contends that these facts arguably make her testimony cumulative. (Resp. 10.) The Commonwealth also asserts that, despite her illness, Ms. Richardson could testify if absolutely necessary. (Id.)
Feimster appears to concede that Ms. Richardson's testimony may be cumulative. In response to the Court's question, "You don't think she is cumulative?," Feimster's counsel responded, "She is a little bit, but she saw things a little bit different than Mr. Richardson did." (Feb. 27, 2017, Tr. 65.) Counsel then clarified as follows: "She was a passenger, he was the driver, and I think her testimony is not totally cumulative, but a lot of it is because they were in the same vehicle, driving down the same street at the same time, but a lot of it isn't, or some of it, not a lot of it, some of it." (Id. at 66.) Additionally, Feimster apparently was prepared to go to trial on January 30, 2017, without Ms. Richardson as a witness. (Id. at 68-69.) --------
In sum, considering the facts of this case in accordance with the balancing test mandated by Barker, the Court finds that the balance must be struck in the Commonwealth's favor. The Court therefore finds that Feimster's constitutional right to a speedy trial has not been violated.
CONCLUSION
For the reasons stated herein, the Court DENIES Defendant's Motion to Quash and Dismiss All Indictments for Violation of Defendant's Right to Speedy Trial. The Clerk's Office is directed to email or mail a copy of this Order to Katherine M. Beye, Esq., Office of the Commonwealth's Attorney, and to Brett D. Lucas, Esq., Counsel for the Defendant.
Entered: 3-19-2017
/s/_________
David W. Lannetti, Judge