Opinion
Criminal Docket No. CR18-2400
04-05-2019
Re: Commonwealth v. Dwight A. Francois
Gregory B. Turpin, Esquire Office of the Commonwealth's Attorney City of Norfolk 800 East City Hall Avenue, Suite 600 Norfolk, Virginia 23510 Tanya Lomax, Esquire 5900 East Virginia Beach Boulevard, Suite 519 Norfolk, Virginia 23502
Gregory B. Turpin, Esquire
Office of the Commonwealth's Attorney
City of Norfolk
800 East City Hall Avenue, Suite 600
Norfolk, Virginia 23510 Tanya Lomax, Esquire
5900 East Virginia Beach Boulevard, Suite 519
Norfolk, Virginia 23502 Dear Counsel:
Today the Court rules on the Commonwealth's motion (the "Motion") that the Court find the time period associated with the previously granted continuance of Dwight Francois's trial—from March 14 to April 30, 2019—on charges of aggravated malicious wounding, malicious wounding, and burglary not count against the Commonwealth for speedy trial purposes. The Court holds that it has discretion to find a speedy trial delay excusable based only on an attorney's proffer. Additionally, based on representations made by the assistant Commonwealth's attorney—that the trial continuance request was based on the unavailability of a material Commonwealth witness due to medically necessary surgery and related recovery under section 19.2-243 of the Code of Virginia—the Court finds that the associated delay is excusable and GRANTS the Motion.
The continuance order, which was entered by another judge of this Court, indicates that the Commonwealth requested the continuance and that the good cause is as follows: "Detective recently had surgery and is unavailable until mid-April." Although the order does not indicate in the designated area whether the continuance was "over objection" or "by agreement" of Francois, Francois's counsel checked the box under her signature that states "Seen and objected to."
The Court notes that Francois does not allege that he has been denied his right to a speedy trial. The Court therefore could dispose of the Motion by declaring it unripe. Nevertheless, because a ruling on the Motion could directly impact the Commonwealth's options regarding any possible future continuance requests, the Court finds it appropriate to rule on the Motion.
At the March 21, 2019, hearing on the Motion (the "Hearing"), the Commonwealth proffered that the case detective, who is a material trial witness, fractured his ankle in the line of duty on February 14, 2019, and, due to related medically necessary surgery and the associated expected recovery, is unavailable for trial in this case prior to the end of April 2019. There was only one prior continuance of the trial, which was by agreement. At the Hearing, the Court entered the detective's injury report dated February 15, 2019, over Francois's objection. Francois does not dispute that the detective is a material witness but asserts that, pursuant to Schwarz v. Commonwealth, 45 Va. App. 407, 611 S.E.2d 631 (2005), the Commonwealth is required to provide evidence—in the form of medical testimony and/or documentary evidence—to support its proffer. The Commonwealth, on the other hand, contends that the proffer of an attorney—as an officer of the court—is sufficient to support the Motion.
The indictments against Francois were returned as true bills on November 7, 2018, and an agreed-upon trial continuance—from January 24, 2019, to March 14, 2019—was granted on January 28, 2019.
The injury report does not contain any estimate of the detective's unavailability, but rather indicates that his next appointment is "1-2 weeks," and that he "NEEDS F/U APPOINTMENT FOR FURTHER RECOMMENDATIONS."
Virginia law provides that the accumulation of time for speedy trial purposes may be tolled by, inter alia, "the witnesses for the Commonwealth being enticed or kept away, or prevented from attending by sickness or accident." Va. Code § 19.2-243(2) (2015 Repl. Vol.). As pointed out by the Commonwealth at the Hearing, the Virginia Court of Appeals has held that, with respect to an unavailable material Commonwealth witness, "medically necessary . . . surgery properly implicate[s] the 'sickness' exception set forth in Code § 19.2-243(2)." Schwarz, 45 Va. App. at 424, 611 S.E.2d at 640. This includes the associated medical recovery period. Id. It is well established—and essentially undisputed by the parties—that "the burden is on the Commonwealth to show that the delay proscribed by [the speedy trial statute] resulted from one of the causes excepted by the statute." Fowlkes v. Commonwealth, 218 Va. 763, 767, 240 S.E.2d 662, 664 (1978) (citing Flanary v. Commonwealth, 184 Va. 204, 210, 35 S.E.2d 135, 138 (1945)).
Flanary v. Commonwealth appears to be the seminal case establishing that the Commonwealth bears the burden of showing excusable delay for speedy trial purposes in what is now section 19.2-243 of the Code of Virginia.
The specific issue before the Court is whether it is within the Court's discretion to find a proffer sufficient to satisfy the Commonwealth's burden to "show" that a speedy trial delay is excusable. The Commonwealth contends that its proffer, assuming the Court deems it sufficient, is adequate, while Francois takes the position that supporting evidence is required.
The Commonwealth claims that it could easily obtain additional evidence documenting the detective's surgery and recuperation but that it should not be required to do so.
At the outset, the Court notes that courts have broad discretion to grant trial continuances. Autry v. Bryan, 224 Va. 451, 454, 297 S.E.2d 690, 692 (1982). In exercising such discretion, courts "must consider all the circumstances of the case," which presumably include, but are not limited to, the posture of the case, the basis for the motion, any prior motions for continuances, whether the opposing party objected to any prior continuance motions, and any challenges to the motion currently before the court. Id. Courts routinely entertain, and rely upon, proffers made by counsel when considering continuance motions, as these proffers contribute greatly to the efficiency of judicial proceedings. Further, the Court notes that, as officers of the court, attorneys have a statutory and an ethical duty of candor to the tribunal, and they may be subject to substantial sanctions if they violate this duty. See Va . Code § 8.01-271.1 (2015 Repl. Vol.); Va. R. Prof. Conduct 3.3.
Francois asserts that Schwartz, on which the Commonwealth relies for the proposition that medically necessary surgery can toll the running of the speedy trial clock, also stands for the proposition that a mere proffer is not sufficient to satisfy the Commonwealth's burden of proving a speedy trial exception. In Schwartz, the Commonwealth moved for a trial continuance due to an unexpected delay in an investigator's recovery from "medically necessary, major back surgery." 45 Va. App. at 419, 611 S.E.2d at 637. Although the parties stipulated that the investigator was a material witness, the "court initially denied the Commonwealth's motion for lack of evidence 'from an expert' and continued the matter pending examination of [the investigator's] medical records by a board-certified neurosurgeon to ascertain whether [the investigator] would be 'physically unable from a medical standpoint to testify' at the scheduled trial." Id. The Commonwealth subsequently provided a board-certified neurosurgeon's affidavit, whereupon the court granted the Commonwealth's motion and tolled the statutory clock. Id. at 419-20, 611 S.E.2d at 637-38. Although the trial court in Schwartz required the Commonwealth to provide substantial evidence of the investigator's unavailability, that issue was not raised on appeal; the relevant issue before the appellate court was limited to whether medically necessary surgery implicated the "sickness" exception to the speedy trial statute.
The opinion does not state the reason for the trial court's request, apparently sua sponte, for evidence.
In the specific context of section 19.2-243, some Virginia appellate opinions expressly state that the Commonwealth bears the burden of proving that any portions of the speedy trial time period are excusable and therefore do not count against the Commonwealth. See, e.g., Jefferson v. Commonwealth, 33 Va. App. 230, 241, 532 S.E.2d 899, 904 (2000) (Elder, J., concurring in part and dissenting in part); Powell v. Commonwealth, 29 Va. App. 745, 748, 514 S.E.2d 785, 787 (1999); Norton v. Commonwealth, 19 Va. App. 97, 99, 448 S.E.2d 892, 893 (1994); Shavin v. Commonwealth, 17 Va. App. 256, 265, 437 S.E.2d 411, 418 (1993); Woodard v. Commonwealth, 214 Va. 495, 498, 201 S.E.2d 785, 788 (1974); Heflin v. Commonwealth, 211 Va. 407, 409, 177 S.E.2d 644, 645 (1970). By definition, proof requires actual evidence and not merely a proffer. See Prove, Black's Law Dictionary (10th ed. 2014) (defining "prove" as "to establish the truth of (a fact or hypothesis) by satisfactory evidence"). Significantly, none of the trial courts in the cases cited above explicitly required evidence.
Further, the burden-of-proof proposition in all of these cases can be traced back to either Norton v. Commonwealth or Flanary v. Commonwealth. In Norton, the Virginia Court of Appeals based its statement that "[t]he burden is on the Commonwealth to prove that the delay in trying [the defendant] was excusable," 19 Va. App. at 99, 448 S.E.2d at 893 (emphasis added), on language in Godfrey v. Commonwealth, which asserted that "the burden is on the Commonwealth to explain the delay," 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984) (emphasis added). And in Flanary, the Virginia Supreme Court opined that "the burden [i]s on the Commonwealth to show" any excusable delay. 184 Va. at 210, 35 S.E.2d at 138 (emphasis added). In other words, the cases proclaiming that the Commonwealth has a burden to prove excusable delay—each of which ultimately relied on Norton or on Flanary—are imprecise. There does not appear to be any intent or basis to inject a proof requirement. Simply stated, the Court is unaware of any case that expressly requires the Commonwealth to put on evidence of excusable delay in order to toll the speedy trial clock.
Notably, other Virginia appellate opinions express the Commonwealth's burden without reference to proof or evidence, implying that a proffer—subject to the trial court's discretion-can justify excusable delay without any supporting testimony or documentation. See, e.g., Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984) (holding that the Commonwealth's burden is to explain the delay); Walker v. Commonwealth, 225 Va. 5, 10, 301 S.E.2d 28, 30 (1983) (same); Wallace v. Commonwealth, 65 Va. App. 80, 89, 774 S.E.2d 482, 486 (2015), aff'd, 292 Va. 1, 798 S.E.2d 595 (2016) (holding that the Commonwealth's burden is to demonstrate the delay); Robinson v. Commonwealth, 28 Va. App. 148, 153, 502 S.E.2d 704, 706 (1998) (same); Shearer v. Commonwealth, 9 Va. App. 394, 399, 388 S.E.2d 828, 830 (1990) (holding that the Commonwealth's burden is to satisfactorily explain the delay); cf. Baker v. Commonwealth, 25 Va. App. 19, 23, 486 S.E.2d 111, 113 (1997), aff'd on reh'g en banc, 26 Va. App. 175, 493 S.E.2d 687 (1997) (opining both that "the burden is on the Commonwealth to explain the delay" and that "[t]he Commonwealth must prove that the delay was based on [one of the enumerated statutory reasons]" (emphasis added)). The Court also notes that the phraseology in Flanary v. Commonwealth—apparently the seminal case establishing the Commonwealth's speedy trial exception burden—is that the burden is on the Commonwealth to show that the delay qualifies as excusable under the speedy trial statute. 184 Va. at 210, 35 S.E.2d at 138.
The relevant language in several of these cases is quoted in other Virginia appellate cases as well.
The Court also finds it noteworthy that appellate courts have affirmed trial court rulings that speedy trial delays were excusable apparently based solely on Commonwealth information short of admissible evidence. For example, on the day before the scheduled trial in Wallace v. Commonwealth, "the trial court was notified by someone in the Commonwealth's Attorney's office that the assigned prosecutor's child had a medical emergency and the prosecutor was unable to be present for trial." 65 Va. App. at 86, 774 S.E.2d at 485. The trial court granted the Commonwealth's motion the next day to continue the case, apparently based on this notice, and the Virginia Court of Appeals affirmed the trial court's ruling. Id. at 86, 93-95, 774 S.E.2d at 485, 488-89; see also Price v. Commonwealth, No. 0384-17-1, 2018 WL 2605160, at *2 (Va. App. June 5, 2018) (affirming the trial court's determination that the speedy trial delay was excusable based on the Commonwealth's apparent proffer that the funeral for a family member of the assistant Commonwealth's attorney who was to try the case was scheduled on the day the trial was to commence).
As is appropriate, the Court does not consider unpublished Court of Appeals opinions to hold precedential value. The Court instead considers the rationale offered by the Court of Appeals to the extent that the Court finds it persuasive, which is permissible. See Va. Sup. Ct. R. 5.1(f); Fairfax Cty. Sch. Bd. v. Rose, 29 Va. App. 32, 39 n.3, 509 S.E.2d 525, 528 (1999).
Based on the Court's broad discretion to grant trial continuances, the fact that the Court is unaware of any Virginia appellate opinions in which the court explicitly held that evidence is required to support excusable delay for speedy trial purposes, the fact that cases that seem to indicate that evidence is required did not address the issue and can be traced back to cases in which there was no proof requirement, the fact that many Virginia appellate cases have expressed the Commonwealth's burden without reference to actual evidence, and the fact that appellate courts apparently have affirmed trial court rulings regarding excusable delay based only on proffers, the Court holds that it is within the its discretion to find speedy trial excusable delay based only on an attorney proffer. This is not to say that a court does not have discretion to require the Commonwealth to produce evidence to support its proffer, especially if the court suspects bad faith or dilatory tactics on the part of the Commonwealth or if the defendant proffers or produces contrary information.
Based on the circumstances present in the instant case—including but not limited to the Commonwealth's proffer regarding the detective's injury and expected recovery; the injury report provided by the Commonwealth; the history of disputed trial continuances—or the lack thereof—in this case, the lack of any evidence of bad faith or dilatory tactics on the part of the Commonwealth, and the lack of any information contrary to the proffer offered by Francois—the Court finds the Commonwealth's proffer sufficient to support excusable delay for speedy trial purposes.
The Court therefore GRANTS the Commonwealth's motion to find that the continuance of Francois's trial from March 14 to April 30, 2019, not count against the Commonwealth for speedy trial purposes. The Court Clerk is directed to prepare an Order incorporating the Court's ruling. Any objections shall be filed with the Court within fourteen days.
Sincerely,
/s/
David W. Lannetti
Circuit Court Judge DWL/amm