Hutchins v. Commonwealth

518 S.E.2d 838, 30 Va. App. 574, 1999 Va. App. LEXIS 527

• Court: Court of Appeals of Virginia
• Decided: September 14, 1999
• Docket: Record No. 1439-97-3
• Status: Published

Opinions

BUMGARDNER, Judge,

with whom LEMONS, Judge, joins, dissenting.

I respectfully dissent because I believe this decision disregards controlling precedent to redefine a term that has long had a clear, exact meaning and by doing so unnecessarily complicates the law.

Virginia has enjoyed a statute that gives precise definition to her broader constitutional guarantee of a.speedy trial. For decades, the statute forbade holding an accused “without trial.” In 1974, the General Assembly changed the term “without trial” to “no trial on the merits,” and changed the gauge of the permissible delay from terms of court to “nine calendar months.” See 1974 Va. Acts, ch. 391. The next year, it shortened the period to five months if the accused was in custody and fixed nine months as the period if the accused was at liberty. More importantly to this case, the legislature changed the default which invoked the statutory remedy to “if there be no trial commenced.” The delimiting term was no longer “without trial” or “no trial on the merits” but “no trial commenced.” See 1975 Va. Acts, ch. 495.³

When the General Assembly adopted the phrase “no trial commenced” in 1975, case law had given clear definition to the point at which a trial commenced. In Burnley v. Commonwealth, 208 Va. 356, 158 S.E.2d 108 (1967), the Supreme Court stated succinctly “[t]he trial of a criminal case begins with the arraignment.” Id. at 362, 158 S.E.2d at 112. The line of authority on which the Court based that statement traced back more than a hundred years. The Court extracted the principle from cases deciding when the defendant had to be present at trial.

A defendant enjoys the elementary right to be present “during the trial.” The arraignment was a point at which the defendant had the right to be present. ‘We have defined the phrase ‘during the trial,’ contained in Code § 19.2-259, to mean ‘every stage of the trial from [the accused’s] arraignment to his sentence, when anything is to be done which can affect his interest.’ ” Jones v. Commonwealth, 227 Va. 425, , 317 S.E.2d 482, 483 (1984) (quoting Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E. 398, 402 (1925)).

In Burnley, the defendant had the right to have the newly declared Miranda decision applied to him if his trial had not begun at the time the decision was handed down. Burnley had been arraigned but no evidence taken on the merits before Miranda was decided. The Court held that Miranda did not apply to Burnley because he had been arraigned; his trial had begun at that point. See Burnley, 208 Va. at 361, 158 S.E.2d at 111. On the other hand, in Durham v. Commonwealth, 208 Va. 415, 158 S.E.2d 135 (1967), the Court held that Miranda did apply because Durham had not been arraigned though a motion to suppress had been heard. “ ‘The trial of a criminal case begins with the arraignment of the prisoner.’ ” Id. at 420, 158 S.E.2d at 140 (quoting Gilligan v. Commonwealth, 99 Va. 816, 827, 37 S.E. 962, 965 (1901)).

If a defendant must be present at every stage of the trial, and if he must be present at the arraignment, then the trial has begun if the arraignment has occurred. That reasoning was applied in Burnley. See 208 Va. at 361, 158 S.E.2d at 111. In Riddick v. Commonwealth, 22 Va.App. 136, 468 S.E.2d 135 (1996), this Court relied upon that reasoning to determine whether Riddick’s trial had started. If arraignment is a portion of the trial and if it has occurred, then, at a minimum, the trial must have begun.

I do not think it prudent to create new definitions for each new circumstance. However, with this decision we have two definitions of when the trial commences depending on the type of trial. If the trial is on a guilty plea, the trial commences with arraignment and evidence. If it is a trial by jury, the trial commences when the first juror is sworn for voir dire examination. If it is a trial without a jury, the majority makes apparent that an additional definition will be needed: when the first witness is sworn. Complications may develop if an accused changes the plea or mode of trial after first satisfying one statutory definition but not the definition applied to the type of trial finally held. Other definitions may be needed to determine if notices or reports are timely filed. See Majority opn. at n. 2.

When the General Assembly wrote the current formulation of the speedy trial statute, it would have been aware of the decision declaring that a criminal trial began with arraignment. “Commence” is a simple term. Its definition is concise and constant. It permits clear and precise definition of the term associated with it. The point at which a trial begins should be susceptible of clear, precise definition. It should have one meaning if possible. I believe it has enjoyed that until now.

The point at which a trial commences need not be redefined to correct the problem noted in this case. The practice of arraigning and then postponing the balance of the proceedings past the period allowed under the speedy trial statute is not a common practice and may be unique to this jurisdiction. The defendant can easily prevent the wrong that occurred here by objecting to such a lengthy continuance of the “trial on the merits.” The trial court would then know the defendant expected a prompt proceeding and could ensure that it occurred. That is the real purpose of the statute. Should the trial court not heed the objection, it is not likely that a mid-trial postponement that effectively denies the right to a speedy trial would be an appropriate exercise of discretion. The accused must now state his objection to a continuance requested by the Commonwealth, see Code § 19.2-243, and requiring objection to the procedure followed in this case would require no more.

Accordingly, I would affirm the trial court because a criminal trial begins at arraignment and the defendant never objected to the continuance that postponed the balance of the trial.

3 . A minor rephrasing in 1988 changed "if there be no trial commenced” to "if no trial is commenced.” See 1988 Va. Acts, ch. 33.