COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 
		Elder, Annunziata, Bumgardner, Lemons and Frank
Argued at Richmond, Virginia


RUDOLPH LYNWOOD HUTCHINS, JR.
			OPINION BY
v.	Record No. 1439-97-3	JUDGE SAM W. COLEMAN III	
			SEPTEMBER 14, 1999
COMMONWEALTH OF VIRGINIA


UPON A REHEARING EN BANC

	FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge

Vikram Kapil, Assistant Public Defender, for 
appellant.
Michael T. Judge, Assistant Attorney General 
(Mark L. Earley, Attorney General, on 
brief), for appellee.

	Rudolph Lynwood Hutchins, Jr. was convicted in a jury trial 
of unlawful wounding and sentenced to three years in prison.  In 
an unpublished opinion, a divided panel of this Court affirmed 
the unlawful wounding conviction.  We granted Hutchins a de novo 
rehearing en banc and stayed the mandate.  Hutchins contends 
Code  19.2-243, the speedy trial statute, barred the 
prosecution.  Upon rehearing, we reverse the trial court and 
vacate the prior mandate and panel opinion.
	In this appeal, we address for the first time the issue of 
when a jury trial commences for the purpose of tolling the 
Virginia speedy trial statute.  We hold that a jury trial 
commences and thereby tolls the bar of the speedy trial statute 
when the first venireperson is sworn for voir dire.  Thus, 
because the judges of the Circuit Court of the City of 
Martinsville failed to commence Hutchins' trial on or before the 
date specified by the applicable provision of Code  19.2-243, 
Hutchins was denied his statutory speedy trial right and he is 
"forever discharged from prosecution therefor."
	Code  19.2-243 provides, in pertinent part, that if an 
accused is held "continuously in custody" from the date of the 
district court's probable cause hearing, the accused "shall be 
forever discharged from prosecution . . . if no trial is 
commenced . . . within five months from the date . . . probable 
cause was found by the district court."  (Emphasis added).  The 
statute recognizes that specified reasons for a delay in 
commencing trial will not be attributed to the Commonwealth and 
the statute excepts those periods of delay from the time 
provided to bring the accused to trial.
	The right to a speedy trial of a person accused of a crime 
is guaranteed by the Sixth Amendment to the United States 
Constitution, by Article I, Section 8 of the Virginia 
Constitution, and by Code  19.2-243.  The Virginia Supreme 
Court has stated in numerous cases that our speedy trial statute 
is the embodiment "by the legislature of what constitutes a 
'speedy trial,' as that term is used in the Bill of Rights." 
Flanary v. Commonwealth, 184 Va. 204, 208, 35 S.E.2d 135, 137 
(1945) (construing Va. Code  4926 (Michie 1942), the 
predecessor to Code  19.2-243).
	An accused's statutory and constitutional speedy trial 
rights serve the dual function of fulfilling society's interest 
in having those accused of crime expeditiously brought to 
justice and of assuring that those accused of a crime will 
neither languish in jail while awaiting trial nor suffer the 
prolonged anxiety, embarrassment, and expense associated with 
undue delay while awaiting trial whether free on bail or not.  
See Barker v. Wingo, 407 U.S. 514, 519-20 (1972).  The remedy 
accorded to an accused when the government deprives the accused 
of his or her right to a speedy trial is harsh and one of 
serious public consequence -- that is, the accused "shall be 
forever discharged from prosecution" and may escape the 
consequences of having committed a serious crime.  See id. at 
522.  Because society's cost in guaranteeing an accused's speedy 
trial right may result in a heinous crime going unpunished or a 
brutal criminal being set free, judges have the responsibility 
of ensuring that the cases on their dockets are timely brought 
to trial.
	Here, on October 23, 1996, the Martinsville Juvenile and 
Domestic Relations District Court held a preliminary hearing and 
found probable cause to certify to the grand jury two counts of 
malicious wounding against Rudolph Lynwood Hutchins, Jr.  
Hutchins remained continuously in jail from before the 
October 23, 1996 preliminary hearing until June 6, 1997, when he 
was tried and convicted by a jury in the Martinsville Circuit 
Court.  The trial occurred more than seven months after the 
probable cause determination.  Following Hutchins' indictment on 
February 10, 1997, the circuit court judge arraigned Hutchins on 
February 25, 1997, which was the date that the court arraigned 
all defendants indicted by the grand jury on February 10. 
	Approximately one month before Hutchins' jury trial, he 
filed a motion to dismiss the charges on the ground that the 
trial judge had violated his speedy trial right by failing to 
commence his trial within five months of October 23, 1996, the 
date that probable cause was found.  The judge ruled that trial 
commenced on February 25, 1997, when the court arraigned 
Hutchins, even though the case was not set for trial and the 
jurors and witnesses were not convened until June 6, 1997.  
	In Code  19.2-243, the General Assembly identified the 
events that cause the speedy trial period to begin to run and 
also provided that the statutory mandate is met when "trial is 
commenced" within the specified times.  The statute does not 
specifically define when a trial is commenced and is necessarily 
open to judicial interpretation and construction.  As our 
Supreme Court said in commenting upon a predecessor of Code 
 19.2-243, "[m]any cases have been cited defining the word 
'trial,' but they throw little light on the meaning of the word 
as used in the [statute]."  Butts v. Commonwealth, 145 Va. 800, 
808, 133 S.E. 764, 766 (1926).  We must determine when trial 
commences for purposes of applying the mandate of Code 
 19.2-243.  Where a statutory term admits of more than one 
interpretation, it is our duty to give that term "a reasonable 
construction which will effect rather than defeat" the statute's 
purpose.  Ambrogi v. Koontz, 224 Va. 381, 389, 297 S.E.2d 660, 
664 (1982); see also, McFadden v. McNorton, 193 Va. 455, 461, 69 
S.E.2d 445, 449 (1952) (noting that "a statute ought to be 
interpreted in such manner that it may have effect, and not to 
be found vain and elusive").
	On appeal, the Commonwealth urges us to hold that for 
purposes of Code  19.2-243, trial commences when the accused is 
arraigned on the charges.  In support of that position, the 
Commonwealth cites Riddick v. Commonwealth, 22 Va. App. 136, 468 
S.E.2d 135 (1996), in which we held that arraignment and a 
guilty plea commenced a bench trial for purposes of Code 
 19.2-243.   See id. at 142-44, 468 S.E.2d at 137-38.
	The Commonwealth also cites Burnley v. Commonwealth, 208 
Va. 356, 362, 158 S.E.2d 108, 112 (1967), where the Supreme 
Court held that trials begin at arraignment for the purpose of 
applying the Miranda decision prospectively, and Jones v. 
Commonwealth, 227 Va. 425, 428, 317 S.E.2d 482, 483 (1984), 
where the Court held that a defendant's right to be present at 
trial extended from arraignment to sentencing.
	Hutchins suggests that we adopt the view espoused in the 
panel dissent, which was that trial commences when jeopardy 
attaches or when the petit jury is sworn.
	The General Assembly of Virginia enacted Code  19.2-243 to 
"clarify and augment the constitutional guarantees of the Sixth 
Amendment to the United States Constitution and Article I,  8 
of the Virginia Constitution."  Bunton v. Commonwealth, 6 Va. 
App. 557, 558, 370 S.E.2d 470, 470 (1988).  Expounding upon the 
speedy trial protection guaranteed by the United States 
Constitution, the United States Supreme Court said:
The speedy trial guarantee is designed to 
minimize the possibility of lengthy 
incarceration prior to trial, to reduce the 
lesser, but nevertheless substantial, 
impairment of liberty imposed on an accused 
while released on bail, and to shorten the 
disruption of life caused by arrest and the 
presence of unresolved criminal charges.
United States v. MacDonald, 456 U.S. 1, 8 (1982).  We are 
obligated to "construe [Code  19.2-243] so as to assure both a 
defendant's constitutional right to a speedy trial and society's 
interest in 'swift and certain justice.'"  Clark v. 
Commonwealth, 4 Va. App. 3, 5, 353 S.E.2d 790, 791 (1987) 
(quoting Fowlkes v. Commonwealth, 218 Va. 763, 766-67, 240 
S.E.2d 662, 664 (1978)).
	Were we to hold that arraignment commences trial for the 
purposes of Code  19.2-243, we would effectively defeat the 
statute's intended purpose of protecting the accused from 
excessive delay during prosecution of criminal charges.  If a 
trial commences upon arraignment, the court could indefinitely 
delay summoning jurors and witnesses and beginning the processes 
of taking evidence without violating the statute.  Such a 
construction of the statute would defeat its purpose of 
clarifying, augmenting, and embodying the Virginia and federal 
constitutional speedy trial guarantees.  Moreover, such a 
construction of the statute would be contrary to established 
rules of statutory construction, under which we must give effect 
to the purpose of the statute.
	Similarly, we reject Hutchins' argument that trial 
commences when jeopardy attaches, which is when the jury is 
sworn to try the case.  See Peterson v. Commonwealth, 5 Va. App. 
389, 395, 363 S.E.2d 440, 444 (1987).  We believe that if a 
court attempts to empanel a jury but is delayed or unable to do 
so during or after voir dire, then trial has commenced for 
speedy trial purposes.  Accordingly, we believe the sounder 
view, which is the rule followed by the federal courts and the 
rule that we adopt today, is that trial commences for a jury 
trial when the first juror is sworn for voir dire.  See United 
States v. A-A-A Elect. Co., Inc., 788 F.2d 242, 246 (4th Cir. 
1986).  Although under this interpretation trial commences on 
the occurrence of different events for the purposes of jury and 
bench trials, this distinction accurately reflects our common 
perception of trials.  For a jury trial, trial is traditionally 
thought to begin or commence for speedy trial purposes with 
efforts to seat a jury; for a bench trial on a guilty plea, as 
we held in Riddick, trial is traditionally considered to begin 
with the arraignment of the accused and plea of guilty.  
Although it has been suggested that a bench trial commences on a 
plea of not guilty when the first witness is sworn, neither we 
nor the Supreme Court have decided that issue and it is not 
before us in this appeal.
	Here, voir dire of the jury in Hutchins' case began on 
June 6, 1997, well over five months after his October 23, 1996 
preliminary hearing.  Code  19.2-241 specifically mandates that 
"[t]he judge of each circuit court shall fix a day of his court 
when the trial of criminal cases will commence . . . [and that] 
the accused . . . shall be tried within the time limits fixed in 
 19.2-243."  Because the trial court failed to commence 
Hutchins' trial within five months of the probable cause 
determination, Hutchins' right to a speedy trial under Code 
 19.2-243 was violated.  Accordingly, the trial court erred in 
ruling that Hutchins' statutory right to a speedy trial was not 
violated.  Thus, the conviction is reversed and the indictment 
is dismissed, and Hutchins is "forever discharged from 
prosecution therefor."
Reversed and dismissed.

Bumgardner, J., with whom Lemons, J., 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.  
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, 428, 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.
  The practice of the court is to arraign all defendants who 
were indicted by a grand jury on a day certain and to accept 
guilty pleas on that date or accept not guilty pleas and set 
those cases for trial with or without a jury.  There was no 
intention to try the case on that date.  No witnesses or jurors 
were subpoenaed.
  The Commonwealth points out that to hold that a criminal 
trial commences for all purposes when an accused is arraigned 
may have other undesirable consequences for the Commonwealth and 
the defendant's pretrial filing requirements.  See e.g. Code 
 19.2-187 (requiring filing of certification of analyses at 
least "seven days prior to . . . trial"); Rules 3A:9 and 3A:11 
(requiring filings of various motions either ten or seven days 
"before the day fixed for trial").
	  A minor rephrasing in 1988 changed "if there be no trial 
commenced" to "if no trial is commenced."  See 1988 Va. Acts, 
ch. 33.

 
 
Continued . . .
Continued . . .

 
 

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