                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia


DAVID CARDWELL

v.       Record No. 0091-96-4

COMMONWEALTH OF VIRGINIA                    MEMORANDUM OPINION * BY
                                       JUDGE JOHANNA L. FITZPATRICK
DAVID CARDWELL                                FEBRUARY 18, 1997

v.       Record No. 0097-96-4
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                     Donald M. Haddock, Judge

           Kevin T. Gaynor, Assistant Public Defender,
           for appellant.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           briefs), for appellee.



     David Cardwell (appellant) was indicted for two counts of

obtaining property by false pretenses. 1     The sole issue raised in

these appeals is whether appellant's constitutional right to a

speedy trial was violated.      Finding no error, we affirm both

convictions.

     The offenses occurred on April 25, 1994 and April 30, 1994
                            2
(the Alexandria charges).       On May 18, 1994, appellant turned
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      We consolidate Record No. 0091-96-4 and Record No.
0097-96-4 in this appeal as the issue is identical.
     2
      The record shows that the April 25 offense occurred
"between one [p.m.] and five [p.m.]." Appellant alleged that he
himself in to Arlington County authorities on unrelated charges,

and was transported to Fairfax County Adult Detention Center.     On

May 24, 1994, while incarcerated, appellant was served with two

warrants for obtaining property by false pretenses in Alexandria.

Appellant allegedly made requests for a speedy trial on these

charges, but received no response.    Appellant was convicted,

sentenced, and began serving time on his Fairfax County and

Prince William County charges while in jail.
     On or about July 17, 1995, appellant was transported to the

 Alexandria Adult Detention Center.   Soon thereafter, the grand

jury indicted appellant for two counts of obtaining property by

false pretenses in violation of Code § 18.2-178.   On October 26,

1995, the trial court denied appellant's pretrial motion to

dismiss, which claimed that his constitutional right to a speedy

trial had been violated.   The trial court found that appellant

failed to establish any prejudice caused by the delay:
               I'm not at all satisfied that, even in
          October, that these supposed witnesses were
          available, and could be found.

               But I'm further satisfied that the
          prejudice claimed has not been proven,
          because there has been no showing that a

was a patient at the Northern Virginia Mental Institute in Falls
Church, Virginia, and he did not leave the institute until April
26, 1994. However, notations in appellant's file at the hospital
indicate that he left the institute with an authorized pass for a
job interview on April 25, 1994, from 10:15 a.m. to 3:30 p.m.
Additionally, appellant lived in a locked ward that required a
key to enter and leave. To leave the institute, appellant was
required to have an authorized pass, and a staff member was
required to unlock the door and record his exit and entry times.




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          current effort has been made to locate any of
          these people, and that that effort was
          unsuccessful.

               You all just want me to take on faith
          that, because he wrote a letter, and it said
          "moved, no return address," or because he
          wrote a letter, and they said they wouldn't
          give him information about patients that,
          therefore, these people cannot be located.

               But you have not set before me any
          proof, at this time, that an effort has
          currently been made, and that the Defendant
          is, in fact, prejudiced.

     The court denied appellant's motion, and the case proceeded

to a bench trial on November 3, 1995.    Following the trial, the

court found appellant guilty of both charges and on December 21,

1995, sentenced appellant to two concurrent one-year sentences in

prison, to run consecutively with the sentences imposed in other

jurisdictions.

     "Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom."   Riddick v. Commonwealth, 22 Va. App. 136, 139-40,

468 S.E.2d 135, 136 (1996).

     "'The determination of whether an accused has been denied

the constitutional right to a speedy trial requires "a difficult

and sensitive balancing process" in which the court examines on

an ad hoc basis the conduct of both the state and the accused

which led to a delay in prosecution.'"    Jefferson v.
Commonwealth, Record No. 2943-95-1, slip op. at 5 (Va. Ct. App.




                                 3
Dec. 31, 1996) (quoting Kelley v. Commonwealth, 17 Va. App. 540,

544,     439 S.E.2d 616, 618 (1994)).   Each constitutional speedy

trial allegation must be decided on a case-by-case basis, and

four factors must be considered in evaluating a speedy trial

claim:   (1) the length of the delay; (2) the reason for the

delay;      (3) the defendant's assertion of his right to a speedy

trial; and (4) the prejudice to defendant.     See Barker v. Wingo,

407 U.S. 514 (1972); Riddick, 22 Va. App. at 136, 468 S.E.2d at

139; Jefferson, Record No. 2943-95-1, slip op. at 5-6 (Va. Ct.
App. Dec. 31, 1996); and Arnold v. Commonwealth, 18 Va. App. 218,

443 S.E.2d 183, aff'd, 19 Va. App. 143, 450 S.E.2d 161 (1994) (en

banc).

       Appellant argues on appeal that the fourteen-month delay

between the execution of the Alexandria arrest warrants and his

transfer from Fairfax to Alexandria for trial violated his

constitutional right to a speedy trial.    He asserts that no

portion of the delay was attributable to him and that the delay

prejudiced him.   Specifically, appellant alleges that because of

the delay, he was unable "to locate or interview witnesses" and

"was deprived of witnesses material to his case."    He also

speculates that, due to the delay, he "lost the opportunity of

potentially serving fully concurrent sentences" and that he was

prevented from "earning accelerated penitentiary time credit."

Accordingly, we evaluate the Barker factors to determine whether

the delay unduly prejudiced appellant and violated his speedy



                                  4
trial right.

     The first factor, the length of the delay, is the mechanism

that triggers an examination of the remaining considerations.

Riddick, 22 Va. App. at 136, 468 S.E.2d at 139.       "Unless there is

delay which is presumptively prejudicial, it is unnecessary to

inquire as to the other factors."       Sheard v. Commonwealth, 12 Va.

App. 227, 231, 403 S.E.2d 178, 180 (1991) (citing Barker, 407

U.S. 514).   In the instant case, appellant was served with the

Alexandria warrants on May 24, 1994 while incarcerated for

unrelated charges committed in Fairfax County and Prince William

County.   The Commonwealth proffered to the court that generally

it did not, for "policy" reasons and pursuant to the "preference

of the Public Defender," "institute those proceedings until

foreign jurisdictions are done."       Therefore, the Commonwealth

argued, it could not institute the Alexandria proceedings until

the conclusion of the Fairfax County and the Prince William

County proceedings.   Although these proceedings concluded in

September 1994 and November 1994 respectively, appellant was not

transferred to Alexandria until July 17, 1995, and he was not

indicted for the Alexandria offenses until September 5, 1995.

Regarding the period from November to July, the Commonwealth

conceded that there was "no articulable reason . . . why

proceedings were not instituted" in Alexandria.      Based on this

record, an "inquiry into the other factors that go into the




                                   5
balance" is necessary.       Barker, 407 U.S. at 530. 3

       The Commonwealth argues that the second factor, the reason

for the delay, was "simple negligence" and appellant shares the

blame for the delay due to his prosecution for unrelated charges

during his incarceration.       We disagree.   "The Commonwealth was

obliged to bring [appellant] to trial with reasonable promptness.

It failed to do so."        Arnold, 18 Va. App. at 223, 443 S.E.2d at

186.       Thus, we conclude that "administrative derelictions

'nevertheless should be considered since the ultimate

responsibility for such circumstances must rest with the

government rather than with the defendant.'"        Fowlkes v.

Commonwealth, 218 Va. 763, 768, 240 S.E.2d 662, 665 (1978)

(quoting Barker, 407 U.S. at 531)).       Although we attribute the

delay to the Commonwealth's lack of diligence, this is less

onerous than a deliberate or malicious motive on the part of the

prosecutor.       See Jefferson, Record No. 2943-95-1, slip op. at 7,

(Va. Ct. App. Dec. 31, 1996).

       The third factor, appellant's assertion of his right to a

speedy trial, is disputed.       Assuming without deciding that the

evidence supported appellant's allegation that he asserted his

right to a speedy trial, it does not end the inquiry.

       3
      The first scheduled trial date was October 19, 1995.
Appellant concedes that the delay from October 19, 1995 to
November 3, 1995 is attributable to him because he requested a
continuance. However, the length of the remainder of the delay
requires us to address the remaining three factors listed in
Barker.




                                     6
     While appellant established the first three factors, he

failed to establish the fourth factor -- prejudice.    We evaluate

three concerns in the analysis of prejudice:    (1) preventing

"oppressive pre-trial incarceration"; (2) minimizing concern and

anxiety of the defendant; and (3) limiting the possibility of

harming the defense.     See Arnold, 18 Va. App. at 223, 443 S.E.2d

at 186.

     In the instant case, appellant did not experience

"oppressive pre-trial incarceration."    At the time appellant was

served with the Alexandria warrants, he was incarcerated and

awaiting adjudication on unrelated charges in Fairfax County and

Prince William County.    Appellant was sentenced on these charges

and consequently he remained incarcerated on these other

unrelated offenses.    Appellant's assertions that he lost the

"potential" opportunity of serving fully concurrent sentences and

that he was unable to earn accelerated penitentiary time credit

as a result of the delay is speculative and does not equate with

"oppressive pre-trial incarceration."
     Appellant next contends that he suffered anxiety due to the

delay.    Appellant testified that he suffered from distress,

apprehension, and anxiety stemming from the unresolved Alexandria

charges.   He further alleges that he required medication as a

result of this anxiety.    However, he also testified that prior to

his incarceration, he took the same or similar medication for

depression, and that he was hospitalized in Northern Virginia



                                   7
Mental Health Institute for depression and other conditions,

including cocaine withdrawal, prior to his arrest on these

charges.

     Lastly, we consider whether the delay impaired appellant's

defense.   Appellant argues that the delay resulted in his

inability to locate potential witnesses.   We find no error in the

trial court's determination that appellant failed to establish

prejudice as he "made no showing that a current effort had been

made to locate them."   Additionally, the trial court did not find

appellant's testimony credible.   "The weight which should be

given to evidence and whether the testimony of a witness is

credible are questions the fact finder must decide."   Bridgeman

v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The record shows that appellant did not provide his attorney

with the names of any alleged witnesses, and that he made no

significant efforts to locate them.   Moreover, the evidence

presented at trial contradicted appellant's testimony and his

alibi defense.   Further evidence included the identification of

appellant by prosecution witnesses as the perpetrator of the

crimes.

     Accordingly, appellant failed to demonstrate that the delay

impaired his defense or otherwise caused him prejudice.    For the

reasons stated, we affirm the judgments of the trial court.

                                                          Affirmed.




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