Antonio L. Wiggins v. Commonwealth of Virginia ( 1999 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
    Argued at Chesapeake, Virginia
    ANTONIO L. WIGGINS
    MEMORANDUM OPINION * BY
    v.   Record No. 0187-99-1        CHIEF JUDGE JOHANNA L. FITZPATRICK
    DECEMBER 28, 1999
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
    Joseph A. Leafe, Judge
    John T. Callahan III for appellant.
    Stephen R. McCullough, Assistant Attorney
    General (Mark L. Earley, Attorney General;
    Kathleen B. Martin, Assistant Attorney
    General, on brief), for appellee.
    Antonio L. Wiggins (appellant) was convicted in a jury
    trial of robbery, unlawful wounding and use of a firearm in the
    commission of a felony.     The trial court denied appellant's
    pretrial motion to dismiss the indictments pursuant to the
    speedy trial provisions of Code § 19.2-243.     The sole issue
    raised on appeal is whether the period of time after which a
    witness recovered from illness should be charged against the
    Commonwealth.   For the following reasons, we affirm the trial
    court's judgment.
    *
    Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    I.
    On April 2, 1997, the grand jury charged appellant with the
    robbery of Linda Cook, the malicious wounding of Herbert Adkins,
    and the use of a firearm in the commission of these crimes.     The
    indictments were served on appellant on April 13, 1997.
    Although the case was continued on numerous occasions at the
    requests of both appellant and the Commonwealth, the parties
    agree that the only time period in dispute is between February
    5, 1998 and May 14, 1998.
    The record established that the trial in this matter was
    set for February 5, 1998.    Due to inclement weather, the trial
    court was closed on that day.    Additionally, a material witness
    for the Commonwealth, Herbert Adkins, underwent surgery on
    January 27, 1998, and had not recovered by the February trial
    date.    His doctor instructed him not to return to work "for a
    month to six weeks" following the surgery.    Adkins, who had
    relocated to North Carolina following his surgery, was able to
    return to work in "early March."
    At the June 11, 1998 hearing, appellant argued that since
    Adkins returned to work in "early March" and was able to travel
    at that time, the delay from "early March" until May 14, 1998
    should be charged against the Commonwealth and the indictments
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    should be dismissed pursuant to Code § 19.2-243. 1   Denying
    appellant's motion, the trial court ruled as follows:
    The [speedy trial] statute does not apply to
    "such period of time as the failure to try
    the accused was caused . . . by the
    witnesses for the Commonwealth being . . .
    prevented from attending by sickness." I
    conclude that the continuance from February
    5, 1998 was within clause (2) [of Code
    § 19.2-243], and that the continuance did
    not run against the Commonwealth from that
    date until May 14, 1998, when both counsel
    announced they were ready to proceed. To
    rule otherwise would subject the application
    of the statute to vagaries I cannot believe
    the General Assembly intended.
    1
    That section 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 . . . .
    *      *      *      *      *      *       *
    The provisions of this section shall not
    apply to such period of time as the failure
    to try the accused was caused:
    *      *      *      *      *      *       *
    2. By the witnesses for the Commonwealth
    being enticed or kept away, or prevented
    from attending by sickness or accident;
    . . . .
    - 3 -
    Appellant was subsequently tried by a jury and convicted of the
    offenses charged.
    II.
    This case is controlled by Townes v. Commonwealth, 
    234 Va. 307
    , 
    362 S.E.2d 650
     (1987), where the Supreme Court rejected an
    argument similar to the one before us.   In Townes, the defendant
    argued that the period of unavailability of a witness due to
    illness should be limited to "the period the witness is
    'prevented from attending.'"   
    Id. at 323
    , 
    362 S.E.2d at 658
    .
    However, the Court disagreed and concluded that the time period
    must be reasonable under the circumstances of the case.     The
    Court wrote:
    Townes, however, reads the Code section too
    narrowly. We think the language of the
    section allows a trial court discretion in
    determining the length of time a case should
    be continued due to the illness of a
    witness. Here, the trial court stated that
    the period should be reasonable and then
    sought to determine "the feasible trial
    date, taking into account the length of
    anticipated illness of this witness." We
    cannot say on this record that the trial
    court abused its discretion.
    
    Id. at 323
    , 
    362 S.E.2d at 658-59
    .
    In the present case, the trial court found that the
    continuance from February 5, 1998 to May 14, 1998 was a
    reasonable period of time.   The trial court noted that a
    narrower reading of the statute "would require the Commonwealth
    to monitor the daily health of ill witnesses."   Under the
    - 4 -
    circumstances of this case, including the reasonable recovery
    period after Adkin's prostate surgery and his relocation to
    North Carolina, we cannot say that the trial court abused its
    discretion.   Accordingly, the trial court's judgment is
    affirmed.
    Affirmed.
    - 5 -
    

Document Info

Docket Number: 0187991

Filed Date: 12/28/1999

Precedential Status: Non-Precedential

Modified Date: 10/30/2014