Rudolph Lynwood Hutchins, Jr. v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
RUDOLPH LYNWOOD HUTCHINS, JR.
MEMORANDUM OPINION * BY
v. Record No. 1439-97-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 19, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Vikram Kapil, Assistant Public Defender
(Wayne T. Baucino, Assistant Public Defender,
on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The defendant appeals his conviction of unlawful wounding.
He contends that the trial court denied his right to a speedy
trial. Concluding that the trial commenced within the prescribed
time limits, we affirm the conviction.
The defendant was arrested for malicious wounding and
remained in jail until convicted. The district court found
probable cause on October 23, 1996. Two weeks after the grand
jury indicted the defendant on two counts of malicious wounding,
the trial court arraigned the defendant, who pleaded not guilty
and requested a jury trial. The arraignment was within five
months of the preliminary hearing, but the trial court did not
conduct the jury trial until well after the five-month period.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
The trial court had a practice of arraigning all defendants
indicted by the grand jury on a day shortly after term day. On
that arraignment day, the court would not hear evidence but would
set the cases over for further proceedings. On the succeeding
date the court would conduct the balance of the trial
proceedings. In the defendant's case, the proceedings were set
over from February 25, 1997 to June 6, 1997 when it empaneled a
jury which heard the evidence. The jury found the defendant
guilty of one count of unlawful wounding.
Under Code § 19.2-243, the Commonwealth must commence the
trial within five months of a probable cause finding. See
Ballance v. Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403
(1995). The time begins to run the day after probable cause is
found. See Randolph v. Commonwealth, 22 Va. App. 334, 335, 470
S.E.2d 132, 133 (1996).
Six months and twenty-two days after his preliminary
hearing, the defendant filed a motion to dismiss because the
trial court had not commenced his trial within five months. The
trial court denied the motion and convicted the defendant of one
count of unlawful wounding. Relying on Riddick v. Commonwealth,
22 Va. App. 136, 468 S.E.2d 135 (1996), the trial court ruled
that the arraignment had commenced the trial and that satisfied
the time limitations of Code § 19.2-243. The defendant argues
that Riddick does not hold that arraignment alone commences trial
for the purposes of Code § 19.2-243. He maintains that
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arraignment only commences the trial when it is part of a
proceeding that includes presentation of evidence. At a minimum,
the presentation must be a summary of stipulated evidence.
In Riddick, the court arraigned the defendant on the
offense, he tendered a guilty plea pursuant to a plea agreement,
and the Commonwealth presented a stipulation of the evidence.
This Court rejected the defendant's argument that those
proceedings did not commence his trial. It ruled that it is well
established that the trial of a criminal case begins with the
arraignment and ends when the trial court pronounces sentence
upon the defendant. It held that the proceeding commenced the
trial for purposes of Code § 19.2-243.
Riddick based its ruling on the authority of Burnley v.
Commonwealth, 208 Va. 356, 158 S.E.2d 108 (1967). The Supreme
Court relied on a long series of cases that held the defendant
had to be present at the arraignment because it was a critical
stage of the trial. Those cases stated that a trial begins with
the arraignment. From that precedent, the Court concluded that a
trial starts with arraignment when applying the Sixth Amendment
rights pronounced in Miranda v. Arizona, 384 U.S. 436 (1966).
See Burnley, 208 Va. at 362, 158 S.E.2d at 112.
In similar manner, in Riddick this Court also looked at the
cases that decided whether a defendant must be present during
arraignment. All of that authority cited Gilligan v.
Commonwealth, 99 Va. 816, 37 S.E. 962 (1901), which stated "[t]he
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trial of a criminal case begins with the arraignment of the
prisoner, and ends with the sentence pronounced upon him by the
court." In Riddick, this Court concluded that a trial starts
with arraignment when applying the statutory rights defined in
Code § 19.2-243. It extracted the principle from precedent and
applied it to the specific issue before it just as the Supreme
Court had done in Burnley. Though the proceedings in Riddick
consisted of the arraignment, the plea, and the stipulation of
evidence, nothing in the analysis or opinion suggests the holding
would apply the principle only when an evidentiary proceeding
followed the arraignment.
The term, "arraignment," is a term of art describing a
precise legal procedure. It consists of formally calling the
defendant to the bar, reading aloud the accusation contained in
the indictment, and calling upon the defendant to plea to it.
Technically the defendant's plea is not part of the arraignment.
See Whitehead v. Commonwealth, 60 Va. (19 Gratt.) 230 (1870);
Ronald J. Bacigal, Virginia Criminal Procedure § 15-1, at 279 (3d
ed. 1994). When this Court in Riddick analyzed precedent, it
used "arraignment" as a term of art. For us to hold that a trial
commences only when the arraignment is combined with further
stages of the trial would be to modify the holding of Riddick.
That case held the trial commenced at the arraignment and is
consistent with precedent. To accept the defendant's argument
would rewrite clear and controlling precedent.
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The defendant complains that his right to a speedy trial
means nothing if the trial court can simply hold the arraignment
and then postpone the main trial proceedings as long as it wants.
The argument has appeal, but it is not before us in this appeal.
The trial court arraigned the defendant and commenced the trial.
The defendant made no objection when the trial court continued
the balance of the proceedings to June. He cannot now complain
that the continuance violated his statutory or constitutional
rights because his trial commenced within the permissible limits
and he took no action to object to the trial court's continuing
the balance of the trial. Had he done so, the trial court could
have limited the delay, or on appeal we could have reviewed the
ruling. See Rule 5A:18
We conclude that the trial commenced within the period
required by statute and that the trial court did not err in
denying the defendant's motion to dismiss for failure to commence
the trial within those time limitations. Accordingly, we affirm.
Affirmed.
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Lemons, J., concurring.
Under Code § 19.2-243, where an accused is charged with a
felony and continuously incarcerated, the Commonwealth must
"commence" the trial within five months of a finding of probable
cause by the district court or, if there has been no preliminary
hearing in the district court, within five months of a grand jury
indictment or presentment.
In Riddick v. Commonwealth, 22 Va. App. 136, 143, 468 S.E.2d
135, 138 (1996), citing the Virginia Supreme Court in Burnley v.
Commonwealth, 208 Va. 356, 362, 158 S.E.2d 108, 112 (1967), and
Gilligan v. Commonwealth, 99 Va. 816, 827, 37 S.E. 962, 965
(1901), we held that, "it is well established that '"[t]he trial
of a criminal case begins with the arraignment . . ., and ends
with the sentence pronounced upon him by the court."'"
In Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d
539, 541 (1996), the Virginia Supreme Court stated, "we hold that
a decision of a panel of the Court of Appeals becomes a predicate
for application of the doctrine of stare decisis until overruled
by a decision of the Court of Appeals sitting en banc or by a
decision of this Court."
Accordingly, we are bound by the determination of the
three-judge panel in the published decision in Riddick holding
that for purposes of Code § 19.2-243 trial commences upon
arraignment.
Having commenced the trial in compliance with Code
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§ 19.2-243, the trial judge continued the proceedings without
objection from Hutchins.
Accordingly, I concur in the result reached in Judge
Bumgardner's opinion.
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Coleman, J., dissenting.
Code § 19.2-243, referred to as the speedy trial act,
provides that a person charged with a felony, whether confined in
jail or on bail, shall be forever discharged from prosecution "if
no trial is commenced" in the circuit court within specified
times, subject to certain exceptions. This case requires that we
determine when "a trial commence[s]" under Code § 19.2-243 for
the purpose of tolling the speedy trial statutory period.
As to the right to a speedy trial as guaranteed by the
United States Constitution, the United States Supreme Court has
said:
The speedy trial guarantee is designed to
minimize the possibility of lengthy
incarceration prior to trial, to reduce the
lesser, but nevertheless substantial,
impairment of liberty imposed on an accused
while released on bail, and to shorten the
disruption of life caused by arrest and the
presence of unresolved criminal charges.
United States v. MacDonald, 456 U.S. 1, 8 (1982).
The Virginia General Assembly enacted Code § 19.2-243 to
"clarify and augment the constitutional guarantees of the Sixth
Amendment of the United States Constitution and Article I, § 8 of
the Virginia Constitution." Bunton v. Commonwealth, 6 Va. App.
557, 558, 370 S.E.2d 470, 470 (1988). The statute establishes as
state policy, the maximum time periods that the state may hold an
accused in jail or on bail before commencing his or her trial.
If the state holds the accused in excess of the statutorily
defined periods, the charges must be dismissed, subject to
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certain exceptions. As such, we are obligated to "construe [Code
§ 19.2-243] so as to assure both a defendant's constitutional
right to a speedy trial and society's interest in 'swift and
certain justice.'" Clark v. Commonwealth, 4 Va. App. 3, 5, 353
S.E.2d 790, 791 (1987) (quoting Fowlkes v. Commonwealth, 218 Va.
763, 766-67, 240 S.E.2d 662, 664 (1978)). In my opinion, the
majority's construction of the statute, specifically its
determination of when the "trial is commenced," achieves neither
of the purposes for which the statute was enacted. The
majority's construction renders any protection for the defendant
or assurance for the public that an accused will be promptly
brought to trial on the charges essentially meaningless.
The majority relies upon our holding in Riddick v.
Commonwealth, 22 Va. App. 136, 468 S.E.2d 135 (1996), for the
proposition that arraignment of an accused constitutes "the
commencement of trial" in every speedy trial situation. The
majority holds that arraignment invariably constitutes
"commencement of trial" for speedy trial purposes. Under the
majority's analysis, a trial court that merely arraigns a
defendant within the statutory speedy trial period may thereafter
subject the accused to prolonged and indefinite custody or bail
prior to the actual trial of the case without violating the
speedy trial statute. The Riddick holding, however, is not so
broad. Accordingly, I respectfully dissent.
In Riddick the accused was not only arraigned, but pled
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guilty and the Commonwealth presented evidence against him. We
held in Riddick that under the facts of the case, the arraignment
constituted the commencement of the trial. In support of that
finding, we underscored the important fact that Riddick pled
guilty at the arraignment.
Article I, Section 8 of the Virginia
Constitution provides that, "[i]n criminal
cases the accused may plead guilty," and
"[i]n case of such . . . plea of guilty, the
court shall try the case." (Emphasis added).
Code § 19.2-257 directs that "[u]pon a plea
of guilty in a felony case, tendered in
person by the accused after being advised by
counsel, the court shall hear and determine
the case without the intervention of a jury
. . . ." (Emphasis added). The court,
therefore, must "try," "hear" and "determine"
the case upon a guilty plea, undertakings
which clearly commence trial.
Riddick, 22 Va. App. at 143, 468 S.E.2d at 138 (emphasis added).
Thus, although certain language in Riddick could be construed to
hold that arraignment alone commences trial for speedy trial
purposes, as the majority elects to do, I read the Riddick
opinion to hold that with a guilty plea trial "clearly
commence[s]" when the court "tr[ies]" or "hear[s]" the case.
In Riddick, the panel relied upon two cases in which the
Virginia Supreme Court held, in contexts other than speedy trial,
that a trial begins at arraignment. First, in Burnley v.
Commonwealth, 208 Va. 356, 362, 158 S.E.2d 108, 112 (1967), the
Virginia Supreme Court determined whether the Miranda safeguards
applied to an appellant's prosecution. Noting that the United
States Supreme Court had held the Miranda decision applied to
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trials beginning after June 13, 1966, the Virginia Supreme Court
held that, for the purpose of applying Miranda prospectively,
trials began at arraignment. See id. (citing Johnson v. New
Jersey, 384 U.S. 719, 734 (1966)). To support its conclusion,
the Court cited its holding in Gilligan v. Commonwealth, 99 Va.
816, 827, 37 S.E. 962, 965 (1901), in which a defendant alleged
that the trial court violated his right to be present at a
post-verdict hearing. The Court held that a defendant's right to
be present during trial began with arraignment and ended with
pronouncement of sentence. See id.
Second, in Jones v. Commonwealth, 227 Va. 425, 317 S.E.2d
482 (1984), the appellant asserted the trial court erred by
viewing the crime scene without his being present. See id. at
428, 317 S.E.2d at 483. Holding that a view is part of the
trial, the Court defined the trial in this context as extending
from arraignment to sentencing. See id. Although these cases,
relied upon by the majority, state that arraignment is the
beginning of trial, none of them so hold in the context of the
right to a speedy trial. Thus, while they do lend support for
the holding by our panel in Riddick, which held that arraignment
and the guilty plea constitutes commencement of the trial for
purposes of the speedy trial statute, that holding does not, in
my view, stand for the proposition or require a holding that
trial commences for all purposes with an arraignment. A
different set of values is at stake when determining when trial
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begins to alleviate a defendant's or the public's concern that an
accused be brought to trial promptly.
I would hold that Hutchins's arraignment and plea of not
guilty did not "commence his trial." Reason dictates that for
purposes of Code § 19.2-243, the speedy trial act, we should
determine that "trial commences" at a time which gives meaning to
the purpose of the statute by ensuring both the defendant's and
the public's rights to have an accused timely brought to justice.
Allowing a court to satisfy the statute by merely arraigning an
accused and deferring the actual beginning of a trial for months
essentially nullifies the act. Under federal law, trial
commences for the speedy trial act not upon arraignment, but
rather upon voir dire of the jury. See United States v. A-A-A
Elect. Co., 788 F.2d 242, 246 (4th Cir. 1986). The logical
standard, I believe, for when "trial commences" under Code
§ 19.2-243 is when jeopardy attaches. Thus, I would hold that
for speedy trial purposes "trial commences," not with the
arraignment, but rather with the empaneling of the jury or
swearing of the first witness in a bench trial, see Peterson v.
Commonwealth, 5 Va. App. 389, 395, 363 S.E.2d 440, 444 (1987), or
when a guilty plea is tendered, with arraignment and acceptance
of the plea, as in Riddick. Such a holding finds support from
the similar federal standard, gives effect to the intended
purpose of the statute, and would not directly conflict with
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Riddick's holding. 1
The majority's holding frustrates the intended purpose of
the speedy trial statute, it is not dictated by our case law, and
it ignores established rules of statutory construction. For
these reasons, I dissent.
1
As to when jeopardy attaches in a guilty plea, language in
Peterson suggests that jeopardy attaches upon acceptance of a
guilty plea. However, neither Peterson nor the case upon which
Peterson relied, Ricketts v. Adamson, 483 U.S. 1, 8 (1987),
foreclosed that jeopardy might also attach at an earlier time
than acceptance of the guilty plea, such as the tendering of a
guilty plea.
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