Opinion
Rehearing En Banc Granted Aug. 1, 1990.
Inga Anna Francis (Franciss&sFrancis, Boykins, on brief), for appellant.
Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and BAKER and COLEMAN, JJ.
KOONTZ, Chief Judge.
Lloyd S. McIntosh was convicted by jury of possession of marijuana while imprisoned in a penal institution in violation of Code § 53.1-203(6). On appeal, McIntosh argues that the trial court erred by denying his motion to dismiss for lack of a speedy trial and that the evidence was insufficient to support the jury's finding that he was guilty of possession of marijuana. For the reasons that follow, we reverse the conviction.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed in this light, the facts are as follows. At the time of the events leading to his conviction, McIntosh was incarcerated at Deerfield Correctional Center. At approximately 10:00 p.m. on November 2, 1987, Correction Officers Dallas Stancell and Anthony Wyche conducted a routine "shakedown" of McIntosh. A shakedown is a search of an inmate's person and possessions. Stancell conducted a pat down search of McIntosh's person but found nothing. While Wyche searched McIntosh's wall locker, Stancell got McIntosh's footlocker from under his bed and began searching it. While conducting the search, Stancell and Wyche observed McIntosh reach over to the headboard area of his bed. Wyche testified that he saw McIntosh pick something up. When Stancell asked McIntosh what he was holding, McIntosh dropped what appeared to be a burnt cigarette "butt." He then relinquished two more "butts" which he claimed were cigarette butts. Laboratory analysis revealed that the "butts" contained marijuana. McIntosh testified that he did not use marijuana, and that he was the one who discovered the "butts" on the floor and alerted the officers to their presence.
A preliminary hearing was held on January 5, 1988, and the trial was set for April 12, 1988. McIntosh appeared on that date and requested a trial by jury. The trial court granted the request and continued the case until May 31 since no jury was available that day. Upon granting the request for a trial by jury, the trial court stated that the period of delay would be charged against McIntosh. On May 31, the Commonwealth requested and was granted a continuance because a material witness for the Commonwealth was serving on active military reserve duty and was unavailable. McIntosh was subsequently tried and convicted on June 23, 1988, more than five months from the date of his probable cause hearing.
On appeal, McIntosh argues that he was denied his right to a speedy trial under both the United States and Virginia Constitutions and under Code § 19.2-243. We do not address the constitutional claims because they were not raised at trial. See Rule 5A:18. Rather, the record reveals that McIntosh relied solely on Code § 19.2-243 as grounds for dismissal.
Code § 19.2-243 provides in pertinent part as follows:
Where a general district court has found that there is probable cause to believe that the accused has committed a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months from the date such probable cause was found by the district court....
"The five month period is computed as 152 and a fraction days." Moten v. Commonwealth, 7 Va.App. 438, 441, 374 S.E.2d 704, 706 (1988).
A total of 170 days elapsed between the January 5 preliminary hearing and the June 23 trial. The burden was "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." Holliday v. Commonwealth, 3 Va.App. 612, 617, 352 S.E.2d 362, 365 (1987). The trial court ruled that the forty-nine day period of delay between April 12 and May 31 was attributable to McIntosh, and therefore, that McIntosh's trial was timely. The Commonwealth argues that the delay was properly charged to McIntosh because the delay was necessitated by his failure to request a jury trial prior to April 12. We disagree.
In Wright v. Commonwealth, 4 Va.App. 303, 306, 357 S.E.2d 547, 549 (1987), this Court stated that "there must be a showing of some deliberate action by the accused indicating an election to forego his right to a jury trial." Further, "[t]he record must indicate that the accused made a knowing, intelligent and voluntary waiver of the right to trial by jury." Id.; see also Rule 3A:13(b). The record indicates that McIntosh was not present when the case was first set for trial. Moreover, McIntosh did not appear before the trial court prior to the April 12 trial date and waive trial by jury. Consequently, the record does not support the argument that McIntosh made an intelligent and knowing waiver of his right to be tried by jury. The Commonwealth also argues that, although McIntosh did not appear before the trial court and waive trial by jury, he waived it when his attorney set the case to be tried by the court. We disagree.
[U]nder the scheme mandated by our constitution and augmented by statute and the Rules of the Supreme Court, circuit courts must assume that trial will be by jury unless and until the accused knowingly and intelligently waives that right.... Unless the circuit courts are willing to accept delay and the inconvenience of rescheduling, they should not transfer to the attorney for the Commonwealth or to defense counsel the sole responsibility to timely determine the need for a jury.
Wright, 4 Va.App. at 309, 357 S.E.2d at 551.
Further, even if we did hold that McIntosh waived his right to trial by jury prior to April 12, the waiver would not be valid. Article I, section 8 of the Constitution of Virginia provides that where the accused pleads not guilty "he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record ... waive a jury." This provision is reinforced by Code § 19.2-258 and Rule 3A:13(b) of the Rules of the Supreme Court. The record fails to establish the concurrence of the Commonwealth and trial court in a waiver of trial by jury as constitutionally and statutorily mandated. For these reasons, we find that the trial court improperly charged the period of delay from April 12 to May 31 to McIntosh.
The Commonwealth contends that even if it is held accountable for the delay between April 12 and May 31, McIntosh's trial was timely. Essentially, the Commonwealth argues that the delay from May 31 to June 23 was excused under Code § 19.2-243(2), and when that time is subtracted from the 170 days which elapsed between the preliminary hearing and the trial, McIntosh was brought to trial within the five month period.
Code § 19.2-243(2) provides that where the accused's trial is delayed because a "witness for the Commonwealth [is] enticed or kept away, or prevented from attending by sickness or accident," the provisions of Code § 19.2-243 do not apply to that period of time. The Commonwealth's May 31 motion for continuance was granted because a material witness for the Commonwealth was away on active military reserve duty and was not available. The Commonwealth argues that since the witness was away on military duty, he was "kept away" within the meaning of Code § 19.2-243(2), and therefore, the delay was excused. We need not reach the issue of whether the witness was "kept away" within the meaning of that provision. We hold that Code § 19.2-243(2) applies only where the Commonwealth establishes that the witness was subpoenaed but was unable to appear for one or more of the reasons enumerated in Code § 19.2-243(2). It is not enough for the Commonwealth to appear before the court on the day of trial and assert that a witness is unavailable or being kept away, when no attempt to subpoena the witness had been made.
The burden was upon the Commonwealth to provide an adequate explanation within the meaning of the statute as to why the accused was not brought to trial within the prescribed statutory period. We cannot discern from the record before us whether the Commonwealth's witness for which the continuance was granted was in fact subpoenaed to appear in court on May 31. In its brief, the Commonwealth states only that a "material witness" was unavailable; the Commonwealth does not state who that witness was. Because the record fails to establish the identity of the witness and whether the witness was subpoenaed, we cannot determine whether the witness was "kept away" within the meaning of Code § 19.2-243(2). Therefore, the period of delay between May 31 and June 23 must be charged to the Commonwealth and the conviction reversed.
Because we reverse the decision of the trial court on the ground that McIntosh was not afforded his right to a speedy trial, we need not address the remaining issue raised by McIntosh in this appeal.
Reversed and dismissed.
BAKER, Judge, dissenting.
I respectfully disagree with the majority's conclusion that under the facts of this case the number of days delay caused by a material witness' inability to be present at trial only can be discounted if the record discloses he was subpoenaed and specifically named.
The Commonwealth's Attorney, an officer of the court, made an unchallenged statement to the court that a necessary witness was kept away because of military duty. The record contains no objection stating with specificity or otherwise, that the prosecutor's statement to the court was inaccurate or that a subpoena naming the witness was desired or required.
I am of opinion that, in the absence of contradictory evidence in the record, the unchallenged statement of the Commonwealth's Attorney that the witness was kept away because of military duty is sufficient to support the judgment of the trial court, and that the days between the continuance caused by the absence of the witness should be excluded from the five months requirement of Code § 19.2-243.
Accordingly, I would affirm the conviction.
UPON A PETITION FOR REHEARING EN BANC BEFORE THE FULL COURT
On July 10, 1990 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on June 26, 1990 and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on June 26, 1990 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.