Jefferson v. Commonwealth , 33 Va. App. 230 ( 2000 )

WILLIS, Judge.

On appeal from his convictions in a jury trial of two counts of second-degree murder,, in violation of Code § 18.2-32, and two counts of use of a firearm, in violation of Code § 18.2-53.1, Cory Alver Jefferson contends (1) that the trial court denied his statutory right to a speedy trial, (2) that the trial court erred in admitting prejudicial evidence that his companion was armed, and (3) that the trial court erred in instructing the jury as to the mandatory sentencing required for violations of Code § 18.2-53.1. Finding no error, we affirm the judgment of the trial court.

I. BACKGROUND

Under well-settled principles, we view the evidence in the light most favorable to the Commonwealth, granting to it all inferences reasonably deducible therefrom.

On June 25, 1998, as Jefferson’s girlfriend was talking to him on the telephone, her next door neighbor, Willie Davis, listening through his open window, made derogatory comments about Jefferson. Jefferson overheard and was angered by Davis’s remarks. One hour later, he arrived at Davis’s home, accompanied by three friends, Rudolph Jefferson, Chauncey Brooks, and R.J. Wynn. Jefferson approached the house and asked to speak to Davis. After exchanging words through the screen door, Jefferson invited Davis to come out of the house to settle their argument. The two men began fighting. Continuing to fight, they entered the house and shut the door.

Inside the house, Davis’s sisters and Brock Lewis joined the fight on Davis’s behalf. Jefferson then drew a handgun and began firing. He shot Lewis in the back of the head, killing him instantly. He shot Davis in the arm and the head. Davis later died of those wounds.

During the fight, Jefferson’s friends attempted to follow him into the house. Rudolph Jefferson drew a handgun and fired at the door.

The jury convicted Jefferson of two counts of second-degree murder, in violation of Code § 18.2-32, and two counts of use of a firearm, in violation of Code § 18.2-53.1. It fixed his sentence at twenty years imprisonment on each of the murder convictions, three years imprisonment on the first firearm conviction, and five years imprisonment on the second firearm conviction, a total of forty-eight years. The trial court imposed those sentences

II. SPEEDY TRIAL REQUIREMENT

Code § 19.2-243 provides, in pertinent part:

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....

If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five and nine months periods, respectively, set forth in this section, shall be from the date an indictment or presentment is found against the accused.

If an indictment or presentment is found against the accused but he has not been arrested for the offense charged therein, the five and nine months periods, respectively, shall commence to run from the date of his arrest thereon.

The provisions of this section shall not apply to such period of time as the failure to try the accused was caused:

4. By 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, or by the failure of the accused or his counsel to make a timely objection to such a motion by the attorney for the Commonwealth ...

“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).

On August 5, 1998, the general district court found probable cause to believe Jefferson had committed two counts of first-degree murder and two counts of the use of a firearm in violation of Code § 18.2-53.1 and certified those charges to the grand jury. Jefferson was represented at the probable cause hearing by retained counsel.

On September 14, 1998, the grand jury returned against Jefferson indictments on the four certified charges and a fifth indictment charging him with capital murder of Lewis. Jefferson’s counsel did not appear at the September 14, 1998 docket call. On September 14, the trial court entered two orders. The first order directed the issuance of a capias on the direct indictment. On September 22, 1998, Jefferson was arrested on the capias. The second order appointed Jefferson’s previously-retained attorneys to represent him on the capital murder charge. No date was set for further proceedings.

On September 23, 1998, Jefferson was brought before the trial court on the September 14 capiases. His counsel did not appear. His previously-retained attorneys were appointed to represent him on the murder and firearm charges and the case was continued to the October 13 docket call for the setting of a trial date.

The attorneys for the Commonwealth and Jefferson agreed to have pre-trial motions heard before the setting of a trial date. Pursuant to this agreement, the parties did not appear on October 13. Motions were heard on October 30, 1998, and the case was continued to the November 12, 1998 docket call.

On November 12, on joint motion of the Commonwealth and the defense, the case was continued generally. On November 16,1998, on motion of the Commonwealth and the defense, the case was continued to the December 14, 1998 docket call. On December 14, 1998, the trial court set the case for trial commencing January 26,1999.

On January 26, 1999, on motion of the Commonwealth and over defense objection, the case was continued to February 25, 1999, and trial was commenced on that day. The Commonwealth amended the capital murder indictment, which had been returned on September 14, 1998, to charge first-degree murder. It nolle prossed one of the first-degree murder indictments, as to which á preliminary hearing and probable cause determination had been conducted on August 5, 1998. Thus, one of Jefferson’s second-degree murder convictions was based on an indictment returned September 14, 1998, and as to which a probable cause determination had been made August 5, 1998. The other second-degree murder conviction was based on the indictment, originally for capital murder, returned September 14, 1998, as to which there had been no preliminary hearing and probable cause determination. The two firearms convictions were based on the indictments returned September 14, 1998, as to which preliminary hearings and probable cause determinations had been conducted August 5,1998.

Jefferson was held continuously in custody from his preliminary hearing on August 5,1998 until the commencement of his trial on February 25,1999.

Unless an exception to its operation applied, Code § 19.2-243 required that Jefferson’s trial be commenced on or before January 4, 1999, with respect to the murder and firearm charges as to which probable cause had been determined at the preliminary hearing held on August 5, 1998. As to the murder indictment returned September 14, 1998, without a previous probable cause determination, the statute required that trial be commenced on or before February 21, 1999. The Commonwealth contends that failure to commence trial within these times was caused by continuances granted on Jefferson’s motion, with his concurrence, or by his failure to make timely objection. In assessing the impact of the several delays experienced in this case on the operation of Code § 19.2-243, we focus our analysis on the distinction between delay that is inherent in the orderly process of bringing charges on for trial, and delay that is not inherent in that process. See Baity v. Commonwealth, 16 Va.App. 497, 501, 431 S.E.2d 891, 893 (1993).

A. THE SEPTEMBER 14, 1998 CONTINUANCE

With respect to the indictments setting forth charges as to which a preliminary hearing had been conducted on August 5, 1998, the delay from September 14 to October 13 is charged to Jefferson. September 14 was a docket call day. At that time, Jefferson had counsel of record, who had appeared and represented him, with respect to the two indictments charging murder and the two indictments charging the firearm violations. His counsel failed to appear, rendering the trial court unable to set a trial date, and, thus, of necessity, requiring a continuance to the next docket call, October 13.

Jefferson argues that, even though he had retained counsel who appeared and represented him at the preliminary hearing, his counsel’s employment contract stipulated that they would not represent him if he were indicted for capital murder. That employment contract, however, was not binding on the trial court, and counsel, having appeared, were required to continue until relieved.

“Counsel of record” includes a counsel or party who has signed a pleading in the case or who has notified the other parties and the clerk in writing that he appears in the case. Counsel of record shall not withdraw from a case except by leave of court after notice to the client of the time and place of a motion for leave to withdraw.

Rule 1:5. See also Francis v. Francis, 30 Va.App. 584, 589-90, 518 S.E.2d 842, 845 (1999).

Jefferson’s counsel never moved to be permitted to withdraw. The trial court never released them. Indeed, by its September 23 order, the trial court ordered them to represent Jefferson. Their appointment to represent Jefferson resolved only the source of their compensation. It did not interrupt their status and duty as Jefferson’s attorneys.

Failure of defense counsel to appear is not “a delay inherent in the process of preparing the matter for trial.... ” Baity, 16 Va.App. at 507, 431 S.E.2d at 897. See also Townes v. Commonwealth, 234 Va. 307, 321-23, 362 S.E.2d 650, 658-59 (1987). Defense counsel’s failure to appear required a contin uance as effectively as though defense counsel had moved for a continuance. Thus, the delay of twenty-nine days, from September 14 to October 13, is chargeable to Jefferson with respect to the charges as to which a preliminary hearing had been conducted on August 5.

B. DELAYS OF SEPTEMBER 23, OCTOBER 13, AND OCTOBER 30

On September 23, counsel were appointed to represent Jefferson on the capital murder charge. Prior to that date, he was without counsel. The passage of time prior to that date is not chargeable to him. See Nelms v. Commonwealth, 11 Va.App. 639, 400 S.E.2d 799 (1991). The record is unclear as to the initiation and reasons for the delays of September 23, October 13, and October 30. Therefore, these delays cannot be charged to Jefferson.

C. THE NOVEMBER 12 DELAY

Jefferson correctly acknowledges that the thirty-two day delay from November 12 to December 14 is chargeable to him, that delay having been occasioned by joint motion of the Commonwealth and the defense.

D. ANALYSIS

Jefferson is charged with sixty-one days delay with respect to the charges as to which a probable cause determination was made on August 5. The amount of time thus charged to him is comprised of the twenty-nine day delay elapsing between September 14 and October 18 and the thirty-two day delay elapsing between November 12 and December 14. Had no exception to the operation of Code § 19.2-243 applied, trial on these charges should have been commenced January 4, 1999. Trial was actually commenced February 25, fifty-two days late. The sixty-one days of delay charged to Jefferson means the trial was commenced as to these charges within the requirement of the statute.

With respect to the capital murder indictment, later reduced to first-degree murder and resulting in a second-degree murder conviction, Code § 19.2-243, in the absence of a tolling exception, required the commencement of trial on or before February 21, 1999. The trial commenced on February 25. However, Jefferson is charged with thirty-two days delay from November 12 to December 14, 1998. Thus, trial on that charge was commenced within the requirement of the statute.

III. ADMISSION OF EVIDENCE

Jefferson next contends that the trial court erred in admitting evidence that Rudolph Jefferson carried a firearm to Davis’s home and shot at the house. He argues that the prejudicial effect of this evidence outweighed its probative value, because it suggested to the jury that he associated with dangerous people who carried guns. However, the fact that Jefferson himself carried a gun to Davis’s house renders this argument illogical. Furthermore, Jefferson produced the evidence that Rudolph Jefferson was armed.

Jefferson contended that he shot Lewis and Davis in self-defense. The fact that he and his associates took guns to Davis’s house was probative of his intent and of whether he approached Davis with an aggressive purpose. See Ragland v. Commonwealth, 16 Va.App. 913, 918, 434 S.E.2d 675, 678 (1993). The trial court did not abuse its discretion in admitting this evidence. See Cotton v. Commonwealth, 20 Va.App. 596, 597-98, 459 S.E.2d 527, 528 (1995) (en banc).

IV. SENTENCING INSTRUCTION

Finally, Jefferson contends that the trial court erred in instructing the jury concerning the sentences to be imposed for violations of Code § 18.2-53.1. However, he made no objection to the instruction, which directed the jury to sentence Jefferson to three years on the first firearm conviction and five years on any successive violation, as required by the statute. We will not address an issue that was not properly preserved. See Rule 5A:18. We perceive no reason to invoke the “ends of justice” exception. The sentence is not excessive on its face. The predicate and subsequent offenses may be prosecuted in the same proceeding. See Mason v. Commonwealth, 16 Va.App. 260, 262-63, 430 S.E.2d 543, 544 (1993).

The judgment of the trial court is affirmed.

Affirmed.