*1 Salem FRED ALEXANDER SHEARER COMMONWEALTH OF VIRGINIA
No. 0022-88-3 Decided February *2 Counsel
David (Johnson D. Embrey Cunningham, brief), & *3 appellant. Wells, Hoen, Student; (Jan
Linwood T. Jr. F. Third-Year Law Smith, General; Richard B. Assistant Attorney Mary Terry, Sue General, Attorney on for brief), appellee.
Opinion
COLEMAN, J. Fred AlexanderShearer his convictions appeals and breaking entering, grand two counts of larceny and three counts petit larceny. Shearer contends (1) the Common- wealth violated his to statutory bring- not ing him to trial within five hearing; months his and preliminary (2) the trial court by admitting erred into evidence a set which was illegally seized from his We conclude the apartment. did court not err and affirm the convictions. 27,
Shearer was charges convicted of all on jury December 1987. The charges arose from the night late burglary 18, Lynchburg on Airport He was arrested in February 1986. late February 1986 after the shortly Counsel burglary. appointed 6, Shearer. A represent preliminary hearing was held on May 1986, at which time the district court found to cer- cause probable tify charges against a grand jury. grand jury Shearer to 12, returned true bills against May Shearer 1986. Shearer was set September trial was for and arraigned July May determination on cause 1986. Between the probable and eighteen four months of September the trial days elapsed. Judge counsel moved
Before trial on defense September grounds withdraw on the W. to be allowed to Sweeney William had re- continuously had been that Shearer uncooperative Counsel stated that the at- she file frivolous motions. quested that she felt she unsatisfactory was so torney-client relationship effective assistance. Counsel legal could not continue to render that, not being Shearer was told in her judge opinion, the trial don’t, “No, person- when he I responded, candid with court no,” any whether he had court’s about ally, inquiry to the court that she with the Counsel problems attorney. reported . and more letters than received “countless . . collect calls phone I can . . . me do I think are both frivolous ordering things read In direct County].” response and harmful to his case Campbell [in she “under circum- thought whether judge’s inquiry case,” his she prepare stances” she had been “able to properly responded,
No, sir, not, I have have not. It’s not possible because—I what me of his about say gracefully complaints all he done in order to get has—has what wants happened Judge. what I consider is personally important, I inter- many evenings have five or six weekends and spent I to them in the viewing just get witnesses because could and was to answer his daytime, answering trying calls letters. at the had acknowledged hearing experienced *4 counsel,
some he satisfied with problems with but stated that was her to While refer- and wished to trial. representation proceed ences were made and his to Shearer’s dissatis- by Shearer hearing faction her of the and handling appeals, the Lynchburg concerning attorney-client relationship counsel’s assessment to the inability her to with her client pertained communicate court, hearing The trial after Campbell County prosecution. counsel, Shearer and his motion to withdraw granted counsel’s to case in another attorney continued the order appoint was and trial dates represent Shearer. New counsel appointed occasions, were set on which two both of were continued separate of motion or with the of upon concurrence Shearer’s trial counsel. contends, confirms, and his he attorney did not per- A sonally consent the two continuances. third trial set date was 23, 1986, for December but Shearer from escaped custody 24, 1986, November and was not recaptured by the trial date. After Shearer was recaptured brought was to trial on Octo- ber He moved 1987. the trial court to dismiss the charges be- cause he was not within tried five months the probable of cause as determination Code required by 19.2-243. Shearer contends § 24, 1986, most between delay and his September on October was caused his counsel by being improperly allowed withdraw and by two continuances requested con- curred in his new counsel without his consent. He contends that none of the delay, that while he except large, attributable him and occurred after he had de- escape been that, of a trial. He prived asserts as a consequence, Commonwealth failed to try him within five months as required Code 19.2-243. § trial,
At two employees Chautauqua Airlines testified that they had secured the Lynchburg terminal on Feb- airport building ruary prior leaving around 1:00 a.m. An employee Limousine Airport testified that when he arrived at the terminal a.m., around 5:00 he found office doors of National Car Rental and Airport Limousine had been “jimmied.” He discov- ered a metal box lying on the floor. Representatives businesses located in the terminal discovered missing a safe from Hertz Rent-A-Car, Rent-A-Car, car keys missing set of from Avis an amount of unspecified stolen from the businesses. money later,
Four days Officer E. February M. Williams answered an alarm call at Southport Mall Lynchburg. Williams found a gray parked Mercedes in the mall lot. parking mall, When Williams approached the closed he observed an in- chase, truder inside. He gave but the intruder A escaped. check with the Division of Motor Vehicles determined that Mercedes in the mall lot was parking registered Fred Alexander Shearer and his wife. Officer W. D. Torbert testified Mercedes was seized as part investigation the criminal and when he con- ducted an search of inventory the vehicle he found a safe trunk, which was identified as the from the Hertz safe stolen
399 A the terminal war- during burglary. Rent-A-Car office airport for to search Shearer’s items related apartment rant was obtained The warrant specified the break-in the Mall. Southport that which Officer E. M. clothing matching the was for search searching through While wearing. Williams had seen the intruder discovered in one Officer Viar a dresser in Shearer’s apartment, of one drawer metal box which matched the description a cash a roll call as stolen the during which been described at police had the found a Officer Viar metal box and burglary. opened airport which were identified as those stolen from the set of inside Viar airport burglary. Avis office in the Officer stated Rent-A-Car Shearer, had Shearer stated that he pur- that when arrested but he knew it had been stolen. chased metal box resell the trial, did not did At alleged He seller. identify all testify. charges The convicted Shearer on six related jury burglary. airport I. Trial Speedy accused Code 19.2-243 that an incarcerated provides § five to trial within brought held shall be continuously custody be a district finds cause to general probable months after court a crime. The Common lieve that the defendant has committed an accused legislatively duty provide wealth has defined the trial, waiving an accused stand mute without may “and in or long concurrency his actions do not constitute rights so as Commonwealth, Va. v. 7 necessitate a of the trial.” Moten delay Thus, when a defend (1988). 706 App. trial within brought ant he or has not been has shown that she the burden to satis the Commonwealth has statutory period, will be dismissed. or the factorily explain delay prosecution Commonwealth, 460, 463, S.E.2d v. 227 Va. 317 Godfrey however, trial, which attributable (1984). delay 782 in the is Any whether the determining to the defendant will not be counted in mandate. complied statutory speedy Commonwealth 491, 496, Commonwealth, O’Dell S.E.2d 234 Va. 364 denied, (1988). cert. 488 871 U.S. which delay
Code
19.2-243 enumerates reasons
§
exceptions
will be
The “enumerated
attributable
the defendant.
all-inclusive;
may
implied
are not
others of a similar nature
often look to
....
both
exceptions,
express
implied,
defendant’s actions which tend to delay the trial.” Cantwell v.
(1986)
App.
(citations omitted). One of the
statutorily specified exceptions
delay
caused
a continuance
requested or concurred
Therefore,
defendant. Code
19.2-243(4).
to the
extent that
§
*6
defendant
or
requested
any
Corey
concurred in
delay,
v. Common-
wealth,
281, 284-85,
19,
8 Va.
(1989),
381 S.E.2d
App.
20-21
that time will be
in determining
excluded
whether the trial took
place within
mandated time
If the
period.
defendant caused
action,
the delay through his
that time will not be considered in
Moten,
computing compliance with the
speedy
statute.
Va.
442,
App. at
findWe that the Commonwealth met its burden of proving in delay bringing 24, Shearer to trial between September and October was attributable to the defendant. statutory speedy trial run requirements began to on May general when the district court found probable cause to cer- Shearer, tify incarcerated, the charges. who remained was sched- uled for trial on September which would have complied with the five month of Code requirement delay 19.2-243. The § after that date was that caused need to by replace defense counsel and by the two agreed continuances requested by defense counsel without the defendant’s consent. Shearer does not contend that the time for which he was a be fugitive should considered. argues
Shearer that the caused delay by the trial court’s action counsel’s motion approving to withdraw should not be attrib- uted to him because he did not necessitate the withdrawal fact, counsel nor did he assent to In it. he he emphasizes objected to the withdrawal and demanded a trial. speedy argues that the trial court was not confronted with a situation which counsel, therefore, required replacement of trial continuance by caused the trial court’s action must be attributed to the argues Commonwealth. He that the trial court not should be permitted to prejudice right to to ac- speedy simply commodate counsel.
A continuance can be
over
granted
express
a defendant’s
objection and
be
still
attributable
him the
if
has been
delay
necessitated by
brought
circumstances caused or
about
the de
instance,
O’Dell,
continuance,
fendant. For
was
which
trial, held
defendant’s demand for
granted over the
filed complex
he had
pre-
to the defendant because
attributable
the trial court to
which
order for
delay
trial motions
caused
496;
at
see
continue the case until other counsel could be appointed who could confer with Shearer and his defense. prepare Accordingly, we hold that because the continuance was to necessary enable re- defense, placement counsel the defendant prepare continuance was attributable to the defense.
Shearer concedes his newly or appointed requested concurred two subsequent continuances.1 Shearer’s contention those regarding continuances is that he was not informed and did continuance, therefore, consent either they should not however, be attributed him. Defense counsel may, request concur in a continuance without the consent or presence of de fendant defendant will be bound by counsel’s assent to the delay. Butts v. 133 S.E. (1926). Code 19.2-243(4) makes clear continuances § requested or concurred a defendant are by from the excepted time for computing compliance with an bringing accused to trial. Therefore, caused delay two continuances is by attribut able to Shearer. caused
Finally, any delay in the trial after Shearer’s escape from custody November is attributed to him under Thus, 19.2-243(4). Code find we the Commonwealth has satis- § shown factorily that the delay bringing Shearer to trial beyond the statutorily and, time is prescribed attributed his actions therefore, he advantage cannot take of the delay claiming now that his statutory trial was denied.
II. Search Shearer also contends that the trial court erred in overruling his objection to the introduction of the found set in a search of apartment He police. argues belonging keys, Rent-A-Car, Avis were discovered while the were con- police *8 ducting a search beyond the of the warrant. The scope warrant was issued to search for clothes matching those which Shearer was of suspected having worn unrelated Dur- during burglary. an ing bedroom, the search chest drawers in Shearer’s a metal cash box was found. When box police the was the found opened, 1 challenge sufficiency Shearer does not the or to of the court orders trial record why show case his was continuted or his concurred in continuances be- that the 23, September tween and December 1986.
403 being investigated. other than that during burglary taken keys was au- metal box not opening the the Shearer contends that which rea- it was not a container thorized warrant because the in the warrant. Shearer items specified contain the sonably might admitted that who discovered the keys that the officer argues Thus, to find clothes. when he the box did expect opened search authorized the exceeded the of the scope since officers warrant, the should have been argues sup- that keys the highly prejudi- He also that their admission pressed. argues illegally the were seized. disagree keys cial to case. We that seized, we must were determining lawfully In whether the seized. The legally cash box was first decide whether the metal because it search warrant could not be seized pursuant box was not an item the warrant. specified however, We must con does not end there. inquiry, Our it can be vali box and search of sider whether seizure that the evi argues The Commonwealth grounds. dated other view” exception under the legally “plain dence was seized gener warrant which provides Fourth Amendment requirement, or can seize evidence crime ally a law enforcement officer where inadvertently place contraband when discovered it is Commonwealth, 4 Va. App. be. v. the officer has a Stokes 611, S.E.2d view” (1987). “plain exception 355 612 items visible to a illegal evidentiary po “authorizes seizure of object lice officer whose has some Fourth prior access who has cause justification suspect Amendment probable v. the item is with criminal Cantrell activity.” connected Commonwealth, (1988) 7 S.E.2d 334 Va. 373 App. Andreas, order v. 771 In (1983)). 463 U.S. Illinois (quoting must the police for the view” to be exception applicable, “plain view and seize establish: were in a lawful (1) they position item; inad view was (2) plain of the evidence discovery vertent; that the cause to believe (3) had police probable contraband, seizable—i.e., tools the fruits or evidence seized crime, Id. at of a or other evidence of a crime.
335; see (1971); 443 see v. New 403 U.S. Coolidge Hampshire, also Delong denied, We that the metal (1988). find
(1987), cert. U.S. 929 exception. cash box was seized under the view” lawfully “plain *9 404
The metal box was discovered in a
where the
place
police had
right
lawful
be under the
See
authority
to
of the warrant.
Can
trell,
284,
335;
7 Va.
at
373 S.E.2d at
see also Arizona v.
App.
Hicks,
321,
480
(1987).
U.S.
325-26
warrant authorized the
police
clothing thought
to search for certain items of
to be in
Shearer’s
the
in
possession;
dresser drawer located
Shearer’s bed
was,
room
where such items
clearly,
place
might
found. The
of
discovery
the box was
inadvertent. There
no evidence that the
“knew” in
police
advance the location
the
in
evidence and
Stokes,
211,
tended to seize it.
4 Va.
at
After the metal box was the box police opened and found the set of from the Avis Rent-A-Car office. We need not pause was, inquire whether box opening itself, a discreet act which required additional fourth amendment authority beyond that found view plain to the exception warrant requirement. Shearer lacked standing challenge the search of the stolen metal box. In order defendant object on fourth grounds seizure, amendment to a search and he or she has the burden of showing that his her own fourth amendment rights Commonwealth, were 53, violated. Williams v. 4 Va. App. 70, Commonwealth, 354 S.E.2d (1987); 88 McCoy v. App. (1986). 384 Fourth Amendment protections can be claimed ex only legitimate one who “has ‘a pectation privacy’ searched or seized.” v. property Wells 541, 6 (1988). Va. 371 App. 23 States, See generally Katz v. United 389 U.S. 353 A (1967). defendant cannot assert a legitimate in sto expectation privacy Illinois, len Rakas v. property. 439 (1979); U.S. 143 n.12 Dickerson, United v. States 655 (4th 1981); F.2d 559 Cir. United States v. (4th 1981); 647 F.2d Hargrove, 411 Cir. see also Buza State, v. 1988); 529 N.E.2d (Ind. Luleff, 729 S.W.2d State (Mo. 1987). Ct. App. had a they in a where lawfully place Since were the police cause to be, and had inadvertently, probable the box discovered the box was law- property, the metal box stolen believe that stand- Shearer lacked view exception. seized under fully plain police. and searched being about it opened ing complain set evidence the Thus, admitting err into court did not *10 office. stolen from the Avis Rent-A-Car the trial court’s decision. we affirm Accordingly,
Affirmed.2 Duff, J., concurred.
Benton, J., dissenting. committing
Fred was with felonies charged Alexander Shearer in He repre- in the and City Lynchburg Campbell County. in both jurisdic- sented same counsel appointed legal court Shearer was sched- tions. On before day September two burglary, uled to be tried in for County statutory Campbell larceny, grand petit counts and three counts larceny, to withdraw. Shearer’s counsel filed motion court-appointed with counsel’s motion that “is dissatisfied mighty stated Shearer tri- in defenses.” The representation Lynchburg felony Lynchburg als occurred in May 1986. trial,
On the of the Shearer County scheduled day Campbell arraigned for the and his readiness second time indicated be tried In Shearer by jury. response judge’s inquiry, stated he was counsel. that satisfied with court-appointed relieved, stating: Shearer’s then counsel to be requested We burglaries, had a trial a number three of statutory in grand common law and larcenies burglaries several — in this was sentenced Lynchburg March and man May, July 2. — time, Since that he has tried that was bench been — in Lynch- since that he has tried by jury time been therefore, are considered and Other issues raised clerk of this court, from whom it decided this in an unpublished available upon request. appeal have no precedential memorandum public opinion value, filed burg and convicted on all.
I have him been in the Lynchburg jail City [to see] times, number of received a countless number collect tele- calls from him I phone and more letters than can In read. case, is ordering each me to do I things that think are case; both frivolous harmful to his and I re- respectfully — quest withdraw from the case from his representation in Campbell County.
The majority opinion states that Shearer’s counsel was referring to difficulties in connection with I Campbell County cases. dis- agree. The motion withdraw states that Shearer’s unequivocally counsel believes Shearer “is mighty dissatisfied with counsel’s representation in defense” Lynchburg felony (emphasis added). In addition, the written motion no contains allegations that was unable to prepare the trial adequately Campbell County. The motion stated counsel wanted to be relieved in County . . Campbell because “counsel . believ[ed] [Shearer] will never be satisfied with her seek representation [may] ap- peal alleging ineffective counsel.” I believe that counsel’s state- *11 ment the trial judge related to counsel’s perceived diffi- solely culties with respect to the of the conduct of Shearer’s appeals Lynchburg convictions.
Furthermore, judge understood that undoubtedly Shearer’s counsel was addressing the Lynch- difficulties burg It was appeals. the trial who judge sought then to make a connection between the Lynchburg and counsel’s appeals prepara- tion for the Campbell County trial:
THE COURT: Have been you able his properly prepare case under the circumstances? — not, No, sir,
DEFENSE COUNSEL: I have I because have not. not It’s for me his possible say gracefully all of — complaints about has what has and happened what wants get done in order I to what consider is personally important, Judge.
I have five or six and spent weekends inter- many evenings viewing just witnesses I get because could not them in the daytime, calls answering his answer trying letters. I have everything on for justification my part He requires — there is just And there is
not done for him the appeals. — for me to him enough represent not anybody time added). properly (emphasis whether the communi- should remove all doubt response
Counsel’s Lynchburg to the related perceived cation difficulties that counsel trials. or Campbell County “appeals” judge’s inquiry, to the trial Although, response alle- from the initial the motion to withdraw shifted the basis for motion, “mighty that Shearer in the written gation, pleaded first voiced lack of alleged preparation, dissatisfied” counsel’s trial, I the record believe that on the of the scheduled morning to with- of the motion granting does the trial judge’s not support trial judge between the colloquy draw. to the responded as and counsel follows: with Ms. I don’t have a problem
MR. SHEARER: .... I not. wrote some letters representation Drake’s or what I wanted things called her several times to indicate some they do were things She she couldn’t these because done. said frivolous. But kind of valid give any explanation she didn’t me
Okay. said it would just as to would do She why she not them. whatnot, be harmful in of whatever my my appeals attack I fully to me so that can she still has them explained understand what she to do. trying THE COURT: Uh-huh. like, know, being me in this
MR. SHEARER: And I feel you since it I to what is position, going should informed as involves me. directly between
THE So have been some problems COURT: there *12 that’s isn’t you, say, fair to it? — less, MR. SHEARER: Uh more or yes. — be you THE All would would right, you COURT: having and having attorney more comfortable another you? attorney represent case and another having continued MR. SHEARER: No.
THE You would COURT: not?
MR. SHEARER: No. objection, Shearer’s at- Despite judge appointed trial another court, torney, who was not in present Shearer. represent as responded Shearer then follows: Honor,
MR. SHEARER: .... Your I be allowed to may I don’t feel like this bad what speak? every- situation as as be, one is it making right out to and I feel like this here is with interfering my right constitutional trial. speedy THE COURT: Uh-huh. — MR. SHEARER: And I am that is Am I right. right? my Well, trial; get THE COURT: as a you’ll speedy mat- fact, ter I would no back problem coming have down here and trying myself the case if Johnston Judge wants — switch with me. I don’t it makes no at really difference all.
The judge then continued the case “until further order this However, Court.” no further court were orders entered until De- cember when the case again “continued until fur- ther Order from this Court” because Shearer “failed appear.” record, this
Upon judge’s decision to allow Shearer’s counsel to withdraw wrong plainly an abuse discretion. There is justification no shown in granting this record for coun- trial, sel’s motion on the day when Shearer ex- particularly pressed in court his open satisfaction his counsel invoked right action, to a trial. The judge’s taken four months and from twenty-one days the date the five month speedy run, trial requirement began to was done with total disregard statutory being then asserted Shearer. See Code § 19.2-243.
This record contains no evidence which to upon charge Shearer with the delay. Despite trial counsel’s claim that Shearer was “mighty dissatisfied with counsel’s representation” the motion to addition, withdraw was not filed until the before trial. In day dissatisfaction that counsel attributed to Shearer concerned the earlier, conduct of an appeal an unrelated conviction another jurisdiction. The motion contained no allegation concerning criminal matter to be tried the next Fur- day Campbell County. thermore, Shearer, court, least three occasions in open
409 with with desire to proceed stated his satisfaction counsel and his was di- that Shearer trial. The trial was aware judge clearly the to a invoking right speedy his “constitutional rectly explicitly his express of this right In view of Shearer’s invocation trial.” counsel, it with was incumbent desire to to trial his then proceed the trial to make before accommodat- judge further upon inquiry his right trial counsel at the Shearer of ing expense depriving trial. inconvenience in an unre- a The bare statement of speedy trial, counsel, trial made one before day lated matter Shearer’s circumventing for legislatively was insufficient the justification mandated trial requirement. speedy
The continuance ordered majority also concludes that date, was at- judge the trial the scheduled trial September and that “newly tributable Shearer Shearer’s appointed believe or concurred in two continuances.” I requested subsequent The that none of those continuances be attributed to Shearer. can reflects record that Shearer demanded a trial speedy Septem- did judge ber 24. He Because trial request continuance. day erred Shearer’s counsel to withdraw on the permitting record, under the trial circumstances on this the continu- shown charged ance cannot Shearer. logically Shearer which after any asserts that continuance occurred with knowledge. 24 without his I September agree consent or newly Shearer’s brief majority ap- states Shearer’s How- trial counsel “obtained continuances.” pointed [subsequent] ever, the his newly record reflects that informed promptly Shearer trial “he on for brought counsel that wanted the matter appointed counsel, trial.” Shearer’s According to newly appointed trial “was scheduled sometime in December.” Shearer’s [for] trial counsel that he in two newly appointed only stated concurred only continuances The to the December continuances. subsequent setting evidence in record of December concerning the date is a letter dated October from the Commonwealth’s letter, trial counsel. In that attorney newly Shearer’s appointed cause, written more finding than five months after the probable . . has been the Commonwealth’s “that the . case attorney states continued, making consent to In your December 1986.” trial was whether to a determination Shearer’s violated, be taken Commonwealth’s letter cannot attorney’s rights. establish that his Shearer consented or waived After the general continuance was ordered on September court new no order was entered trial date. setting next order in the record was entered on December 1986. In addition, no order has been case reflecting entered this counsel consented a continuance. The letter of the Commonwealth’s attorney cannot trial court. “A speak Smith, through court speaks only Cunningham its order.” Va. (1964). As the Court Supreme *14 Commonwealth, stated in v. Woodard 214 Va. (1974):
The Attorney General asserts that the term continuance July motion, was similar granted to one Woodard’s which would have been excusable under clause of Code 19.1- (4) § 191. This is argument based the Commonwealth’s Attor- ney’s statement at trial that the continuance from the July term the November term was agreed to order to benefit Woodard him permitting cooperate law enforce- however, agents. untenable, ment This position, for we cannot take cognizance the Commonwealth’s Attorney’s continuance, statement. The order granting the containing no suggestion of an agreement, speaks itself.
Id. at
For these reasons and in accordance with the provisions Code 19.2-243, I would reverse Shearer’s conviction and dismiss the § indictment.