Richard Backus, III v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
RICHARD BACKUS, III
MEMORANDUM OPINION * BY
v. Record No. 1558-95-1 CHIEF JUDGE NORMAN K. MOON
JUNE 25, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
James O. Broccoletti (Zoby & Broccoletti,
P.C., on brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Richard Backus appeals his convictions of two counts of
possession with intent to distribute heroin, one count of
possession with intent to distribute cocaine and possession of a
firearm while in possession of a controlled substance. Backus
argues that the trial judge erred in failing to dismiss the
charges against him pursuant to Code § 19.2-243, the speedy trial
statute, and also in failing to sever the second charge of
possession of heroin with intent to distribute from the other
charges. We reverse on the ground that the trial court erred in
failing to grant the motion to sever.
On October 14, 1994, Detective Scott Eicher received a tip
from an unknown informant. Based on the information he received,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Eicher and his partner, Investigator Kaye, went to an
intersection located within Grandy Village, a housing project in
Norfolk. They were looking for a black male wearing a green
jumpsuit and a black hat. They saw Backus, dressed as the
informant had described, standing next to some bushes and talking
with another man who had currency in his hand.
The detectives approached Backus and asked to speak with
him. Backus agreed. While Eicher and Backus were talking, Kaye
searched the bushes where Backus had been standing, and found a
potato chip bag with two pill bottles inside. One of the bottles
contained bags of cocaine, and the other bags of heroin. A
search of Backus produced a set of car keys, a pager, and $250 in
cash. After arresting Backus, Eicher obtained a search warrant
for Backus' car, which was parked nearby. Inside the car's
trunk, Eicher found 270 glassine bags of heroin, a pistol, and a
bag containing $508. Backus' fingerprint was found on the
magazine of the pistol. After Backus' arrest, he was released on
bond.
On January 3, 1995, Investigators Bory and Hoggard of the
Norfolk police were conducting surveillance in the same block
where Backus had been arrested previously. Bory observed Backus
on a bicycle, receiving money from people in cars and handing
them something in exchange. Hoggard approached Backus,
identified himself as a police officer, and ordered Backus to
stop. Backus fled on his bicycle, but Hoggard caught and
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arrested Backus. Hoggard found 12 glassine envelopes containing
heroin fastened to the bike reflector with rubber bands.
On March 1, 1995, the grand jury indicted Backus on all
charges related to the October 14, 1994 and January 3, 1995
incidents.
Also on March 1, 1995, the parties executed a scheduling
order that was approved by the trial judge, which set all charges
for trial on April 6, 1995. The order stated that Backus
requested a trial by the court without a jury. All motions were
to be filed by March 24, 1995 and were to be heard on or before
March 31, 1995. On March 5, 1995, Backus filed motions to
suppress, for discovery and inspection, and for disclosure of the
identity of the confidential informant. He did not notice the
motions for hearing on or before March 31 as directed by the
scheduling order, but instead noticed them for hearing on April
6, the trial date.
On April 6, 1995, the trial judge heard and ruled on the
motions to suppress and the motion for disclosure. On that date,
defense counsel indicated that Backus was now requesting a jury
trial and stated that it was necessary to pick a trial date. The
trial judge inquired whether the charges would be tried together
or separately, to which defense counsel responded that they would
be tried separately. The trial judge then stated that it would
be necessary to set two trial dates, but set only one, May 8,
1995. Backus did not object to this date.
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On May 8, 1995, the parties appeared for trial. A witness
for the Commonwealth, who had been subpoenaed, did not appear and
the Commonwealth requested a continuance. The trial court
granted a continuance to July 6, 1995 over Backus' objection. On
July 5, 1995, Backus filed a motion to dismiss, asserting that
the Commonwealth had not complied with the five month requirement
of Code § 19.2-243. On the same date, he filed a motion to sever
trial on the January charge from the trial on the October
charges. On July 6, 1995, the trial court denied the motions,
and the trial took place as scheduled. Backus acknowledges that
his speedy trial claim does not apply to the charge on direct
indictment for possession of cocaine with intent to distribute.
MOTION TO SEVER
Backus contends that the trial court erred in denying his
motion to sever. The Commonwealth claims that Backus waived this
argument because Backus consented to joinder of the offenses, see
Rule 3A:10(c), and because he filed his motion to sever too late.
We disagree.
The scheduling order executed by the parties applied to all
charges, and called for trial on April 6, 1995. As noted, trial
did not take place on that date, but instead motions were argued,
and trial was rescheduled. Backus' counsel requested separate
trials on the charges, and the trial court appeared to concur by
setting the first trial date for May 8, 1995. While Backus did
not file a written motion to sever until the day before trial, we
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find the delay was caused by the trial court having granted
defense counsel's request for separate trials. In these
circumstances, Backus had not waived his argument concerning the
motion to sever.
The trial court had limited discretion to order that Backus
be tried concurrently for multiple offenses. Kirk v.
Commonwealth, 21 Va. App. 291, 295, 464 S.E.2d 162, 164 (1995)
(citations omitted). Rule 3A:10(b) provides that all offenses
pending against an accused may be tried at one time "if justice
does not require separate trials and . . . the offenses meet the
requirements of Rule 3A:6(b)." Under Rule 3A:6(b), joinder of
offenses is permissible if, inter alia, they are based on two or
more acts or transactions that are connected or constitute parts
of a common scheme or plan. See Satcher v. Commonwealth, 244 Va.
220, 229, 421 S.E.2d 821, 827 (1992).
In Spence v. Commonwealth, 12 Va. App. 1040, 407 S.E.2d 916
(1991), on facts similar to those of this case, we held that the
trial court erred in denying the motion to sever because the drug
sales in the same area on different dates were not part of the
same transaction, were not connected transactions, and did not
constitute parts of a common scheme or plan. In so holding, we
relied on Boyd v. Commonwealth, 213 Va. 52, 189 S.E.2d 359
(1972). This case is controlled by Spence and Boyd. Under those
cases, the requirements for joinder under Rule 3A:6(b) were not
met, and the trial court therefore erred in denying Backus'
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motion to sever.
RIGHT TO A SPEEDY TRIAL
Under Code § 19.2-243, an incarcerated accused held
continuously in custody shall be brought to trial within five
months after a general district court finds probable cause to
believe that the defendant has committed a crime. Norton v.
Commonwealth, 19 Va. App. 97, 99, 448 S.E.2d 892, 893 (1994). If
a defendant is not tried within the five-month period, the burden
is on the Commonwealth to explain the delay. Godfrey v.
Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984).
Delays attributed to the defendant are not considered in
computing compliance with the statute. Jones v. Commonwealth, 13
Va. App. 566, 570, 414 S.E.2d 193, 195 (1992). In assessing
responsibility for delay in trying a defendant, we limit our
review to the record before us. Cantwell v. Commonwealth, 2 Va.
App. 606, 611, 347 S.E.2d 523, 525-26 (1986).
Here, the Commonwealth exceeded the five-month deadline by
less than a week. This delay did not violate Code § 19.2-243,
because Backus was responsible for the continuance from the
original trial date until May 8. According to the scheduling
order, Backus was to set all motions for hearing on or before
March 31, 1995. He did not do so, but instead set them for the
date of trial. After argument on the motions, Backus did not
attempt to proceed with trial, but instead asked for a later
trial date--in effect moving for a continuance. The trial court
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granted his request.
Backus argues that the delay was necessitated by the trial
court's consideration of his pretrial motions, a delay that
cannot be attributed to the defendant, and that the court itself
continued the matter. We agree that under Code § 19.2-243,
routine and customary motions, including motions to suppress, are
to be disposed of within the five-month period. Adkins v.
Commonwealth, 13 Va. App. 519, 523, 414 S.E.2d 188, 190 (1992).
However, the record does not show that the court's consideration
of the motions was responsible for the delay in scheduling the
trial. The motions were not lengthy or complex, and the trial
court disposed of them orally after hearing argument. Instead,
the record indicates that the delay was caused by Backus' action
in scheduling the motions for the day of trial, and then
requesting a new trial date. Backus' actions necessitated a
delay in the commencement of the trial, and therefore the
Commonwealth did not violate his right to a speedy trial.
Godfrey, 227 at 463, 317 S.E.2d at 783.
The defendant's convictions are reversed and the case is
remanded for new trials, if the Commonwealth be so advised.
Reversed and remanded.
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