Opinion
Record No. 1980-93-2
Decided: March 21, 1995
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY, Thomas V. Warren, Judge
Theodore Tondrowski (Bowen Bowen, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judge Benton, Senior Judge Cole and Retired Judge Trabue
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Appellant, Anthony Turner, was tried by a jury and convicted of causing bodily injury to a correctional center employee and possessing, while a prisoner, an unauthorized object capable of causing death or bodily injury. We limited this appeal to three issues: (1) whether the prosecution violated the defendant's constitutional right to a speedy trial; (2) whether the prosecution violated his right to a speedy trial under Code Sec. 19.2-42; and (3) whether the prosecution violated his right to due process because of (prejudicial and/or unreasonable) pre-indictment delay. Finding no error, we affirm.
On December 3, 1992, while an inmate at Nottoway Correctional Center, the appellant refused to close his cell door slot, and Sergeant Wilson attempted to close it. The appellant snatched Wilson's whistle and began blowing it while throwing "stuff" through the slot.
Wilson testified that he and some guards attempted to subdue and restrain the appellant. However, appellant met them at the cell door "swinging a metal object." Wilson and Correctional Officer Burton explained how appellant had an instrument attached to his wrist in order to thrust it and strike out at the officers. The officers referred to the metal object on appellant's wrist as a "shank." During the confrontation, Wilson sustained a slight cut on his finger. After writing the reports, Wilson noticed blood on his hand and sought and received medical assistance. A gash in his finger was dressed and an adhesive bandage applied.
As a result of this incident, the grand jury returned direct indictments against the appellant on May 4, 1993. On September 30, 1993, the appellant was tried in the circuit court.
1. Constitutional Protections
Appellant alleges that the prosecution denied his right to a speedy trial under the Sixth Amendment of the United States Constitution and Article I, Section 8 of the Virginia Constitution. The prison employees filed a number of incident reports dated December 3, 1992. Appellant asserts that his speedy trial rights were triggered when he was officially accused in the reports. Because more than nine months passed from the date of the incident and the resultant reports to the date of trial, appellant argues for the application and balancing of the four factors announced in Barker v. Wingo, 407 U.S. 415 (1972), contending they will prove that his right to a speedy trial was violated. We disagree.
For purposes of this appeal, we need not distinguish between the speedy trial protections under the state and federal constitutions. See Holliday v. Commonwealth, 3 Va. App. 612, 615-16, 352 S.E.2d 362, 364 (1987). As we noted in Holliday, for our analysis of the constitutional protections, we look to the Supreme Court's decision in Barker. There, the Supreme Court stated that whether a defendant has been denied the constitutional right to a speedy trial depends upon "a difficult and sensitive balancing process" in which the Court examines the conduct of both the state and the accused which led to a delay in prosecution. 407 U.S. at 533; see also Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 (1978); Holliday, 3 Va. App. at 616, 352 S.E.2d at 364. Under this balancing test, four factors are to be considered in evaluating a speedy trial claim: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Holliday, 3 Va. App. at 616, 352 S.E.2d at 364.
The "triggering mechanism" for speedy trial constitutional analysis is the length of the delay. Barker, 407 U.S. at 530. Unless there is sufficient delay to be "presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Fowlkes, 218 Va. at 766, 240 S.E.2d at 664. An accused must prove that the length of the delay presumptively "was so detrimental as to have endangered his right to a fair trial." Beachem v. Commonwealth, 10 Va. App. 124, 131, 390 S.E.2d 517, 520 (1990).
Turner contends that the delay commenced at the time the officers filed their official incident reports on December 3, 1992. We disagree with this argument. The speedy trial clause of the Sixth Amendment is inapplicable to pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 788 (1977); Hall v. Commonwealth, 8 Va. App. 526, 528-29, 383 S.E.2d 18, 20 (1989). Because Turner was not indicted until May 4, 1993, the time to commence the speedy trial analysis began on May 4, 1993. There is nothing in the record to show that appellant insisted upon a speedy trial before May 4, 1993. Turner was served with a copy of the indictment on May 5, 1993, and brought before the court for arraignment on August 31, 1993. The case was continued and tried with a jury on September 30, 1993, a period of 149 days from the day of indictment. The cases that address the issue of pre-indictment delay generally characterize the delay involved as "lengthy," or "oppressive," see Lovasco, 431 U.S. at 788-89, or "inordinate," or "substantial," see United States v. Marion, 404 U.S. 307, 320, 324 (1971). We find that the defendant has not established that this delay is even "presumptively prejudicial." We therefore find it unnecessary to consider the other factors announced in Barker.
2. Speedy Trial Under Code Sec. 19.2-242
Appellant contends that Code Sec. 19.2-242 requires that an accused shall be discharged from imprisonment if an indictment is not found against him before the second term of court. Appellant claims that his convictions should be reversed because he was in prison during the instant offense and was not indicted within two terms of the circuit court.
Code Sec. 19.2-242 provides, in pertinent part:
A person in jail on a criminal charge shall be discharged from imprisonment if a presentment, indictment or information be not found or filed against him before the second term of the court at which he is held to answer . . . .
In this case, appellant was not "in jail" on the instant charges from December 3, 1992, forward. He was an inmate and in custody as a result of his prior conviction and commitment. He was not incarcerated as a result of any criminal charges arising from his conduct on December 3, 1992. He was not indicted by the grand jury until May 4, 1993. Therefore, Code Sec. 19.2-242 is not applicable to the case.
3. Due Process Violation
The appellant contends that the delay between the December 3, 1992 offenses and the May 4, 1993 indictments was unreasonable, and, therefore, a violation of the due process clause of the United States Constitution. He claims that he was placed in segregation, lost privileges and good time credit, his parole eligibility was adversely affected, and was ultimately transferred to another institution. He further asserts that the Department of Corrections made no attempt to cause the Commonwealth's attorney to bring charges earlier than five months after the incident occurred.
The principal cases involving pre-indictment delay are Lovasco and Marion. In these cases, the Supreme Court made it clear that the primary guarantees against the bringing of a state criminal charge is the applicable statute of limitations. The Court acknowledged that the due process clause played a limited role. Lovasco, 431 U.S. at 789; Marion, 404 U.S. at 322. The due process clause may offer a criminal defendant some protection if he can establish that (1) the prosecutor intentionally delayed indicting him to gain a tactical advantage and (2) the defendant incurred actual prejudice as a result of the delay. Hall, 8 Va. App. at 529, 383 S.E.2d at 20 (quoting United States v. Amuny, 767 F.2d 1113, 1119 (5th Cir. 1985)).
Appellant admits that the prosecutor did not delay indicting him to gain an advantage. He only alleges that the Department of Corrections did not bring charges against him until about five months after the incident. The prejudice that the appellant alleges to have resulted from the delay was not brought about because of the staleness of the charges, but because of disciplinary action taken against him by the Department of Corrections to maintain institutional order. The administrative disciplinary action taken against the appellant immediately after the December 3, 1992 incident may have been prejudicial to the appellant, however, this prejudice did not arise out of any delay in the prosecution of the criminal offenses for which the appellant was later indicted. It would have occurred even if the appellant had not been prosecuted. Appellant has failed to show that the pre-indictment delay resulted in any violation of his due process rights.
Accordingly, we affirm the convictions.
Affirmed.