Opinion
Record No. 0328-93-3 Record No. 0449-93-3
Decided: July 19, 1994
FROM THE CIRCUIT COURT OF ROANOKE COUNTY, Clifford R. Weckstein, Judge
Affirmed.
Jonathan Shapiro (Michael W. Lieberman; Claire G. Cardwell; Joy Hodges Robinson; Jonathan Shapiro Associates; Claire Cardwell Associates, on briefs), for appellants.
Grace DiLiberto, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; John B. Russell, Jr., Senior Assistant Attorney General, on brief), for appellee.
Present: Judges Coleman, Koontz, and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this consolidated appeal, James Frederick Haight and Richard Freeman, following their convictions for selling unregistered securities, contend that their statutory and constitutional rights to a speedy trial were violated. We hold that Haight and Freeman had expressly waived their speedy trial rights. Thereafter, they did not clearly and unequivocally revoke such waivers until they filed written motions with the court affirmatively asserting their speedy trial rights, after which they were timely brought to trial within the nine-month requirement of Code Sec. 19.2-243. We further hold that their constitutional rights to a speedy trial were not infringed. Accordingly, we affirm their convictions.
On October 13, 1992, and November 30, 1992, the appellants filed motions to dismiss on the basis that the delay of their trial constituted a denial of their speedy trial rights. These motions constituted a revocation of their earlier waiver of rights.
On February 17, 1987, a Loudoun County grand jury indicted James Frederick Haight and Richard Freeman, along with nineteen other defendants, on multiple counts of feloniously selling unregistered securities. Following their indictments, Haight and Freeman were not held in custody, but were released on bail. Code Sec. 19.2-243 provides that an accused not held in custody will be forever discharged from prosecution if no trial is commenced within nine months from the date probable cause was found. On June 25, 1987, at a consolidated hearing on motions filed by all defendants, Haight and Freeman orally waived their rights to speedy trials. On August 25, 1987, the Loudoun County Circuit Court obtained a blanket written waiver of their speedy trial rights under Code Sec. 19.2-243.
On April 17, 1989, the Loudoun County Circuit Court granted a change of venue, and the cases were transferred to Roanoke County Circuit Court. On September 30, 1991, Haight and Freeman declined the Commonwealth's offer to be tried jointly with the next scheduled co-defendant. On this same date, a letter was sent by the defendants' counsel to the prosecutor in reference to " Commonwealth v. Shavin, et al.," David Shavin being a co-defendant of Haight and Freeman. The letter stated, "on behalf of David Shavin, my client, I am forwarding for filing with the Clerk's Office in Roanoke, Virginia, this day the accompanying 'assertion and notice of speedy trial rights.' " The letter further stated, "I don't . . . want there to be any confusion that my clients are not agreeing to any continuance or waiver of their speedy trial rights." No pleadings similar to those filed for Shavin were filed on behalf of Haight or Freeman.
On October 13, 1992, and November 30, 1992, respectively, Haight and Freeman filed written motions alleging violations of their rights to speedy trials. The appellants' motions were denied, and their joint trial was held on February 11, 1993.
Under Code Sec. 19.2-243, the appellants, who were not confined while awaiting trial, were required to be tried within nine months of the indictment against them or their arrest, whichever was later. The statutory speedy trial right, however, may be waived by an accused, and the running of the statute is tolled during the period of waiver. See Godfrey v. Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 782 (1984); Shavin v. Commonwealth, ___ Va. App. ___ ___, 437 S.E.2d 411, 419 (1993). In Shavin, we rejected similar speedy trial claims of a co-defendant of Haight and Freeman. We held that Shavin, who executed the same written waiver of his speedy trial right as did Haight and Freeman, had made a general waiver and had not simply made a limited waiver of his right to a speedy trial until the pre-trial motions were resolved. Id. at ___, 437 S.E.2d at 418. On that issue, the Shavin ruling controls, and we hold that Haight and Freeman executed written general waivers of their speedy trial rights, which tolled the running of the statutory period until such time that they clearly and unequivocally revoked such waivers. See Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990).
In Shavin, the Court of Appeals held that defense counsel revoked Shavin's earlier general waiver by writing a letter to the prosecution expressly asserting his speedy trial rights and by filing an accompanying pleading formally asserting such rights.
Here, the September 30 letter that counsel contends applied to Haight and Freeman made no specific reference to them by name and was unaccompanied by any pleading filed on behalf of either of them. The letter stated, "I don't . . . want there to be any confusion that my clients are not agreeing to any continuance or waiver of their speedy trial rights." At best, this language is equivocal and vague in its purport and as to whom it refers; it is insufficient to constitute a revocation of Haight's and Freeman's written waivers of their speedy trial rights. The language could easily be construed to mean that "my clients," whoever that may include, do not agree that they have waived their rights to a speedy trial. In other words, whether they have waived a speedy trial will be an issue that will be contested. Furthermore, we agree with the trial court that "[this] letter from counsel in response to [the] Commonwealth's attempt to set hearings is not the same as a [revocation of a] waiver." The trial court did not err in holding that the letter was an insufficient revocation of Haight's and Freeman's prior waivers.
These defendants did not clearly, expressly, and unequivocally revoke their waivers until they filed written motions with the court in October and November, 1992, respectively, asserting their speedy trial rights. Thereafter, the appellants were brought to trial in February, 1992, well within the nine-month statutory period required by Code Sec. 19.2-243. Accordingly, the appellants' statutory rights to a speedy trial were not violated.
The appellants contend that the Commonwealth violated their constitutional rights to a speedy trial under the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514 (1972). Their claims on this issue are identical to the argument of Shavin, which we rejected in Shavin v. Commonwealth, ___ Va. App. at ___, 437 S.E.2d at 419. We are bound by the principle of stare decisis to apply that ruling. See Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 (1990).
We affirm appellants' convictions.
Affirmed.