                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


JAMES FRANK HAYES
                                             MEMORANDUM OPINION *
v.       Record No. 1177-97-4              BY JUDGE CHARLES H. DUFF
                                                JUNE 16, 1998
  COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FREDERICK COUNTY
                         James L. Berry, Judge
            Roger A. Inger (Travis J. Tisinger; Massie,
            Inger & Iden, P.C.; Harrison & Johnston, on
            brief), for appellant.

            Leah A. Darron, Assistant Attorney General
            (Mark L. Earley, Attorney General, on brief),
            for appellee.



     In a jury trial in Frederick County, James Frank Hayes

(appellant) was found guilty of the first degree murder of his

wife, Lisa Hayes (Hayes).    On appeal, he argues that he was

denied his Sixth Amendment right to a speedy trial.    Finding no

error, we affirm appellant's conviction.

     On appeal, "[w]e review the evidence in the light most

favorable to the Commonwealth.    The factual findings of the trial

court, if supported by credible evidence, will not be disturbed

on appeal."    Williamson v. Commonwealth, 13 Va. App. 655, 656,

414 S.E.2d 609, 609-10 (1992).

     On July 13, 1995, Hayes' dead body was found near her

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
wrecked car in a Frederick County creek.      Medical Examiner Dr.

Frances Field performed an autopsy on the body on July 14, 1995.

The autopsy report listed drowning as Hayes' cause of death.

     On November 9, 1995, appellant was indicted in Frederick

County for Hayes' murder, and a March 18, 1996 trial was

scheduled.

     On March 7, 1996, the Commonwealth moved to nolle prosequi

the murder charge.   The prosecutor contended that on February 8,

1996, he was given information indicating that appellant killed

his wife at the apartment they shared in the City of Winchester.

Anna Oates had told the police that appellant suffocated his

wife with a pillow on the floor of the apartment and later

disposed of the body in the Frederick County creek.      The

prosecutor stated that until the receipt of this information from

Oates, it had appeared that, pursuant to Code § 19.2-247, venue
                                  1
was proper in Frederick County.       Upon questioning by the court,

appellant refused to waive the issue of venue and permit trial in

Frederick County.    The court granted the Commonwealth's motion to
nolle prosequi.

     On April 9, 1996, appellant was indicted in Winchester for

his wife's murder, and a trial was scheduled for July 1, 1996.

     1
      Code § 19.2-247 provides that "[w]here evidence exists that
a homicide has been committed . . . under circumstances which
make it unknown where such crime was committed, the offense shall
be amenable to prosecution in the courts of the county or city
where the body of the victim may be found, as if the offense has
been committed in such county or city."




                                  -2-
On June 18, 1996, upon joint motion of the parties, the trial was

continued until July 22, 1996.    On July 9, 1996, appellant

requested, and was granted, a continuance until September 17,

1996.

        On September 17, 1996, the Winchester Circuit Court

conducted a hearing upon appellant's motion to dismiss due to

improper venue.    Oates testified that she saw appellant cover

Hayes' face with a pillow on the living room floor of appellant's

Winchester apartment.    Oates assisted appellant by restraining

Hayes' legs.    Eventually, Hayes stopped struggling and appellant

removed the pillow.    Oates did not observe Hayes breathing, but

did not check her pulse to see if she was still alive.      After

bathing and redressing Hayes, appellant carried her to the car.

Hayes exhibited no signs of life.       Appellant drove the car to the

embankment of a Frederick County creek.      He positioned Hayes in

the car and sent the car over the embankment into the creek.

Oates testified that she had never seen a dead person before, and

she had avoided looking at Hayes as much as possible.
        Dr. Field testified that during the autopsy of Hayes' body

she found several symptoms that were consistent with an asphyxial

death, which could have occurred either by smothering or

drowning.    She stated that there were no specific autopsy

findings which would differentiate between smothering or drowning

as the cause of death.    Dr. Field noted bruising and pressure

marks about Hayes' face and neck which, Dr. Field opined, were




                                  -3-
inflicted prior to Hayes' death.   Dr. Field confirmed that it is

possible for a person to be asphyxiated to the point of

unconsciousness, short of death.

     Dr. Cyril Wecht, a forensic pathologist, testified that no

autopsy findings exist which are exclusive to death by drowning.

In reviewing Dr. Field's autopsy report, Dr. Wecht noted only a

few of the characteristics generally found with a death by

smothering.   Based upon the autopsy report, Dr. Wecht could not

state the cause of Hayes' death.
     The Winchester judge concluded that Frederick County was the

proper forum since the cause of Hayes' death could not be

determined.   He dismissed appellant's murder indictment without

prejudice.

     On October 10, 1996, appellant again was indicted in

Frederick County for the murder of his wife.   Soon after his

indictment, appellant agreed to a trial date of January 31, 1997.

On January 17, 1997, the case was continued upon appellant's

motion until March 31, 1997.

     On March 21, 1997, appellant filed a motion to dismiss the

proceedings as violative of his constitutional right to a speedy

trial.   At a hearing on March 27, 1997, Investigator Greg Locke

testified that, based upon his preliminary investigation of

Hayes' death, he disagreed with the autopsy report and did not

believe drowning had caused Hayes' death.   He stated that Oates

had first told the police in February of 1996 that appellant




                                -4-
killed his wife at an apartment in Winchester.   Oates had said

that Hayes remained motionless on the floor for a long period of

time and did not appear to be breathing.    Oates, however, did not

check Hayes' vital signs to see if she was still alive.

     Locke further testified that he contacted Dr. Field on March

7, 1996 to discuss the autopsy report.   Dr. Field told Locke that

she had listed Hayes' death as a drowning because the body was

found in a creek.   Locke advised Dr. Field of Oates' statement.

Dr. Field indicated that the signs and symptoms of drowning are

the same as suffocation, so that the murder could have occurred

in either Frederick County or Winchester.
     Appellant contended that his constitutional right to a

speedy trial had been violated, arguing that in February of 1996

Locke should have questioned Oates more thoroughly about her

observations of Hayes after the suffocation.   Had Locke done so,

appellant claimed, the Commonwealth would not have nolle

prosequied the original Frederick County charge because the

location of Hayes' death would have appeared unclear.    Appellant

asserted that five subpoenas for witnesses at trial had been

returned as "not found" and that the unavailability of those

witnesses was due to the delay in bringing appellant to trial.

Concluding that any delay attributable to the Commonwealth was

justifiable, the trial court found that appellant's

constitutional speedy trial right had not been violated.

     Appellant's trial commenced on March 31, 1997.     A jury found



                                -5-
him guilty of first degree murder.

     In Barker v. Wingo, 407 U.S. 514 (1972), the Supreme Court

of the United States, "recognizing the difficulty in evaluating

speedy trial claims, adopted a balancing test" which "identified

four factors to be assessed by courts in determining whether a

particular defendant had been deprived of his speedy trial right:

(1) the length of delay; (2) the reason for the delay; (3) the

defendant's assertion of his right; and (4) the prejudice to the

defendant."   Holliday v. Commonwealth, 3 Va. App. 612, 616, 352

S.E.2d 362, 364 (1987).   There is, however, no "precise formula

for determining when a constitutional right to a speedy trial has

been abridged."    Moten v. Commonwealth, 7 Va. App. 438, 445, 374

S.E.2d 704, 708 (1988).   "Balanced in this analysis is the

conduct of both the prosecution and the defendant, the relative

degree of fault to be attributed to that conduct, and the

consequences of the remedies requested."    Beachem v.

Commonwealth, 10 Va. App. 124, 130, 390 S.E.2d 517, 519-20

(1990).

     The first factor in Barker, the length of the delay,
triggers inquiry into the remaining three factors when "the delay

involved becomes 'so protracted as to be "presumptively

prejudicial" . . . .'"    Id. at 131, 390 S.E.2d at 520 (citation

omitted).   In this case, sixteen months passed from the date of

appellant's initial indictment in Frederick County until his

trial commenced.   This delay requires us to address the remaining




                                 -6-
three factors set forth in Barker.    See Arnold v. Commonwealth,

18 Va. App. 218, 223, 443 S.E.2d 183, 186, aff'd on reh'g en

banc, 19 Va. App. 143, 450 S.E.2d 161 (1994).

     "Once shown that there has been a delay that is

'presumptively prejudicial,' the burden 'devolves upon the

Commonwealth to show, first, what delay was attributable to the

defendant and not to be counted against the Commonwealth, and,

second, what part of any delay attributable to the prosecution

was justifiable.'"   Beachem, 10 Va. App. at 131-32, 390 S.E.2d at

520 (citation omitted).

     The Commonwealth concedes that the first portion of the

delay, from the initial indictment in Frederick County until the

nolle prosequi of that charge, is chargeable to the prosecution,

but contends that the delay was justifiable.    Appellant argues

that if the Commonwealth had adequately investigated the matter,

it would not have nolle prosequied the proceedings because the

location of Hayes' death would have appeared clouded with

uncertainty, rendering Frederick County the proper forum.

     Ordinarily, "the prosecution of a criminal case shall be had

in the county or city in which the offense was committed."   Code

§ 19.2-244.   Where a killing has occurred "under circumstances

which make it unknown where such crime was committed," the crime

may be prosecuted where the body was found.    Code § 19.2-247.

     The parties have cited no cases, and we have found none,

defining the degree of proof necessary to establish that a



                                -7-
"homicide has been committed . . . under circumstances which make

it unknown where such crime was committed" pursuant to Code

§ 19.2-247.   However, concerning questions of venue, "the

Commonwealth must produce evidence sufficient to give rise to a

'strong presumption' that the offense was committed within the

jurisdiction of the court, and this may be accomplished by either

direct or circumstantial evidence."   Cheng v. Commonwealth, 240

Va. 26, 36, 393 S.E.2d 599, 604 (1990).    See also Davis v.
Commonwealth, 14 Va. App. 709, 711, 419 S.E.2d 285, 287 (1992).

     Hayes' body was found in Frederick County, and the autopsy

report indicated that she drowned there.   Following the initial

indictment in Frederick County, however, the Commonwealth

received information from Oates indicating that appellant may

have actually killed his wife before transporting her in the car

to the creek.   Oates stated that Hayes remained motionless and

showed no signs of life after appellant had smothered her.     This

description tended to prove that appellant killed his wife in

Winchester.   Moreover, Dr. Field advised Locke that she had ruled

the case a drowning only because Hayes was found in water.     At

the time the Commonwealth moved to nolle prosequi the original
Frederick County indictment, it was logical to assume that the

evidence, when presented at trial, would prove that Hayes died in

Winchester and that venue was proper in Winchester pursuant to

Code § 19.2-244.   Consequently, the Commonwealth's decision to

nolle prosequi the Frederick County indictment, rather than face




                                -8-
a possible dismissal on grounds of improper venue, was

reasonable.   Only through clairvoyance could the prosecutor have

known that the Winchester court, when faced with two medical

opinions that Hayes' cause of death could not be determined,

would dismiss the Winchester proceedings.   There is no evidence

that the Commonwealth deliberately selected such a circuitous

route to bring appellant to trial, or that the procedure was

employed intentionally to gain strategic advantage.    The delay

associated with the initial proceedings in Frederick County,

therefore, was justifiable under the circumstances.
     By requesting or concurring in continuances in the

subsequent proceedings in Winchester and Frederick County,

appellant contributed to the length of the delay.     See

Williamson, 13 Va. App. at 658, 414 S.E.2d at 610.    In

Winchester, appellant concurred in a continuance from June 18 to

July 22, 1996.   During that period of time the case was continued

upon appellant's motion to September 17, 1996.   In Frederick

County on January 17, 1997, appellant was granted a continuance

of the January 31 trial date until March 31, 1997.

     Additionally, nearly a month passed between the dismissal of

the Winchester indictment and the re-institution of proceedings

in Frederick County.   This period of time should not be counted

against the Commonwealth.   See United States v. MacDonald, 456

U.S. 1, 7 (1982) (the Sixth Amendment speedy trial clause "has no

application after the Government, acting in good faith, formally



                                -9-
drops charges.    Any undue delay after charges are dismissed, like

any delay before charges are filed, must be scrutinized under the

Due Process Clause, not the Speedy Trial Clause.").   Therefore,

at least six months of the ensuing delay following the nolle

prosequi was either attributable to appellant or excludable from

speedy trial considerations.

     With regard to the third factor under Barker, we note that

appellant objected to the granting of the nolle prosequi on March

7, 1996, and again asserted his right in a motion to dismiss

prior to trial.
     Finally, in determining the factor of prejudice, we consider

three interests:   "'(1) preventing oppressive pretrial

incarceration; (2) minimizing the accused's anxiety; and (3)

limiting the possibility that the defense will be impaired.'"

Arnold, 18 Va. App. at 224, 443 S.E.2d at 187 (citation omitted).

     Appellant contends that he suffered great stress while

awaiting trial.    The record does not reflect, however, that

appellant suffered anxiety any greater than any other similarly

situated defendant awaiting trial upon a murder charge.

     Furthermore, other than the simple passage of time,

appellant has demonstrated no prejudice from the delay.    The

record does not reveal the nature or substance of the anticipated

testimony of the witnesses appellant claims he was prevented from

calling.   "To conclude on this record that [appellant's] defense

was impaired by the delay in bringing him to trial would require



                                -10-
nothing short of sheer speculation on our part."   Beachem, 10 Va.

App. at 134, 390 S.E.2d at 522.   We decline to engage in such

speculation.

     Balancing our conclusions regarding the four Barker factors,

we find that the trial judge did not err in concluding that

appellant was not denied his constitutional right to a speedy

trial.   Although we conclude that a portion of the delay in

bringing appellant to trial was attributable to the Commonwealth,

the trial judge did not err in finding that the delay was

justifiable.   We find no evidence of prejudice associated with

the delay.   Accordingly, we affirm appellant's conviction.
                                                   Affirmed.




                               -11-
