Antonio L. Wiggins v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued at Chesapeake, Virginia
ANTONIO L. WIGGINS
MEMORANDUM OPINION* BY
v. 	Record No. 0187-99-1 	CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Joseph A. Leafe, Judge
John T. Callahan III for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee.
Antonio L. Wiggins (appellant) was convicted in a jury
trial of robbery, unlawful wounding and use of a firearm in the
commission of a felony. 	The trial court denied appellant's
pretrial motion to dismiss the indictments pursuant to the
speedy trial provisions of Code § 19.2-243. 	The sole issue
raised on appeal is whether the period of time after which a
witness recovered from illness should be charged against the
Commonwealth. 	For the following reasons, we affirm the trial
court's judgment.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

I.
On April 2, 1997, the grand jury charged appellant with the
robbery of Linda Cook, the malicious wounding of Herbert Adkins,
and the use of a firearm in the commission of these crimes. 	The
indictments were served on appellant on April 13, 1997.
Although the case was continued on numerous occasions at the
requests of both appellant and the Commonwealth, the parties
agree that the only time period in dispute is between February
5, 1998 and May 14, 1998.
The record established that the trial in this matter was
set for February 5, 1998. 	Due to inclement weather, the trial
court was closed on that day. 	Additionally, a material witness
for the Commonwealth, Herbert Adkins, underwent surgery on
January 27, 1998, and had not recovered by the February trial
date. 	His doctor instructed him not to return to work "for a
month to six weeks" following the surgery. 	Adkins, who had
relocated to North Carolina following his surgery, was able to
return to work in "early March."
At the June 11, 1998 hearing, appellant argued that since
Adkins returned to work in "early March" and was able to travel
at that time, the delay from "early March" until May 14, 1998
should be charged against the Commonwealth and the indictments
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should be dismissed pursuant to Code § 19.2-243.1 Denying
appellant's motion, the trial court ruled as follows:
The [speedy trial] statute does not apply to
"such period of time as the failure to try
the accused was caused . . . by the
witnesses for the Commonwealth being . . .
prevented from attending by sickness." 	I
conclude that the continuance from February
5, 1998 was within clause (2) [of Code
§ 19.2-243], and that the continuance did
not run against the Commonwealth from that
date until May 14, 1998, when both counsel
announced they were ready to proceed. 	To
rule otherwise would subject the application
of the statute to vagaries I cannot believe
the General Assembly intended.
1 That section provides in pertinent part:
Where a general district court has found
that there is probable cause to believe that
the accused has committed a felony, the
accused, if he is held continuously in
custody thereafter, shall be forever
discharged from prosecution for such offense
if no trial is commenced in the circuit
court within five months from the date such
probable cause was found by the district
court . . . .
* 	* 	* 	* 	* 	* 	*
The provisions of this section shall not
apply to such period of time as the failure
to try the accused was caused:
* 	* 	* 	* 	* 	* 	*
2. 	By the witnesses for the Commonwealth
being enticed or kept away, or prevented
from attending by sickness or accident;
. . . .
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Appellant was subsequently tried by a jury and convicted of the
offenses charged.
II.
This case is controlled by Townes v. Commonwealth, 234 Va.
307, 362 S.E.2d 650 (1987), where the Supreme Court rejected an
argument similar to the one before us. 	In Townes, the defendant
argued that the period of unavailability of a witness due to
illness should be limited to "the period the witness is
'prevented from attending.'" 	Id. at 323, 362 S.E.2d at 658.
However, the Court disagreed and concluded that the time period
must be reasonable under the circumstances of the case. 	The
Court wrote:
Townes, however, reads the Code section too
narrowly. 	We think the language of the
section allows a trial court discretion in
determining the length of time a case should
be continued due to the illness of a
witness. 	Here, the trial court stated that
the period should be reasonable and then
sought to determine "the feasible trial
date, taking into account the length of
anticipated illness of this witness." 	We
cannot say on this record that the trial
court abused its discretion.
Id. at 323, 362 S.E.2d at 658-59.
In the present case, the trial court found that the
continuance from February 5, 1998 to May 14, 1998 was a
reasonable period of time. 	The trial court noted that a
narrower reading of the statute "would require the Commonwealth
to monitor the daily health of ill witnesses." 	Under the
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circumstances of this case, including the reasonable recovery
period after Adkin's prostate surgery and his relocation to
North Carolina, we cannot say that the trial court abused its
discretion. 	Accordingly, the trial court's judgment is
affirmed.
Affirmed.
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