Opinion
Record No. 1277-93-2
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Affirmed.
L. Willis Robertson, Jr. (Cosby and Robertson, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Fitzpatrick and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, Grover Robbs (appellant) argues that his prosecution for grand larceny was not timely brought pursuant to Code Sec. 19.2-243, and that the Commonwealth improperly struck two African-Americans from the jury venire. We hold that, because appellant was not held continuously in custody, and his actions caused the trial delay, he was properly tried within nine months of the determination of probable cause.
Additionally, sufficient evidence supports the trial court's finding that the Commonwealth provided race-neutral reasons for its jury strikes. We affirm the conviction.
BACKGROUND
On July 10, 1992, appellant was arrested for grand larceny and held continuously in jail until December 14, 1992. His preliminary hearing was held on August 4, 1992, and he was indicted by the grand jury September 15, 1992. On October 6, 1992, appellant filed a motion to suppress that was denied October 26, 1992. The case was set for a jury trial December 9, 1992. The trial was continued to February 17, 1993, chargeable to the Commonwealth. On December 14, 1992, the Commonwealth requested that appellant be released on a personal recognizance bond to remove any statutory speedy trial problems. The court released appellant on December 14, 1992, and recognized him to appear before the court on February 17, 1993.
On February 17, 1993, appellant failed to appear for trial, and a capias was issued. Appellant was arrested on the capias March 15, 1993, and remained in custody on the capias until his June 7, 1993, trial date. On the morning of trial, appellant moved to dismiss the indictment for violation of his right to a speedy trial. At that hearing, appellant asserted that he had not been tried within the five-month period required by Code Sec. 19.2-243. The motion was denied.
Counsel completed jury selection. After opening statements, appellant moved for a mistrial pursuant to Batson v. Kentucky, 476 U.S. 79 (1989), asserting that the Commonwealth improperly struck two of three African-American jurors. The Commonwealth's explanations for these strikes were (1) that one juror was inattentive, and (2) that another was a nurse who might possess knowledge about the value of medical supplies, the items taken. The trial judge found that the Commonwealth gave sufficient, race-neutral reasons and overruled appellant's motion.
RIGHT TO SPEEDY TRIAL
Appellant argues that the trial court erred in finding that the Commonwealth prosecuted appellant within the nine-month limitation of Code Sec. 19.2-243. Initially, appellant argued that the five-month limitation of Code Sec. 19.2-243 should apply.
Code Sec. 19.2-243 provides that if a defendant is not held continuously in custody before trial, then the Commonwealth must prosecute the defendant within nine months of the determination of probable cause to protect the defendant's right to a speedy trial. The nine-month limitation, not the five-month limitation, applies in this case, because the court released appellant on bond and recognized him to appear in February. He was not held "continuously in custody," the trigger for a five-month calculation. In determining whether the time period is met, a court may exclude any time attributable to the defendant's "escaping from jail or failing to appear according to his recognizance." Code Sec. 19.2-243(4).
This Court held that "those [circumstances] caused, requested or concurred in by the accused, may warrant a delay in the trial to ensure a fair trial to both the accused and the Commonwealth." Baity v. Commonwealth, 16 Va. App. 497, 502, 431 S.E.2d 891, 894 (1993) (en banc). In addition, the Virginia Supreme Court held that a court may exclude from the nine-month period any time attributable to the consideration of a defendant's motion to suppress evidence. Stephens v. Commonwealth, 225 Va. 224, 233-34, 301 S.E.2d 22, 27-28 (1983). "When the defendant filed his motion to suppress he was not asking for a speedy trial. It was an act that necessitated a slow-down of the judicial process . . . . [H]e should not be permitted to take advantage of the delay thus occasioned." Id.
As in Stephens, appellant filed a motion to suppress the evidence on October 6, 1992, and the court denied the motion on October 26, 1992. Thus, twenty days passed while the court considered the merits of the suppression motion, a delay caused by appellant. In addition, on December 14, 1992, the court released appellant on a recognizance bond and recognized him to appear in court on February 17, 1993. Appellant failed to appear, and was arrested on a capias on March 17, 1993, twenty-six days later. The court properly excluded these days pursuant to Code Sec. 19.2-243(4).
Appellant's preliminary hearing was on August 4, 1992, and his trial was on June 7, 1993. Excluding the twenty days necessary for the motion to suppress and the twenty-six days for the failure to appear at trial, appellant was properly tried within the nine-month period.
PEREMPTORY STRIKES OF JURORS
Appellant also argues that the trial court erred in finding the reasons offered by the Commonwealth for striking two of three African-American jurors to be race-neutral. The Virginia Supreme Court held that once the Commonwealth "produce[s] explanations for striking the juror which are race-neutral[,] . . . the reasons may be challenged by the defendant as pretextual." Buck v. Commonwealth, 247 Va. 449, 451, 443 S.E.2d 414, 415 (1994) (citation omitted). "[T]he trial court must decide whether the defendant has carried his burden of proving purposeful discrimination by the [Commonwealth] in selecting the jury panel. On appeal, the trial court's findings will be reversed only if they are clearly erroneous." Id. (citation omitted).
As in Buck, the Commonwealth offered race-neutral reasons for striking the two jurors, and the trial court accepted these reasons. We cannot say that the court's findings were clearly erroneous.
Affirmed.