                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia


ROBERT HURT ROBERTSON, JR.
                                          MEMORANDUM OPINION * BY
v.        Record No. 1678-97-2             JUDGE LARRY G. ELDER
                                             DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
                     Thomas V. Warren, Judge
          Robert E. Hawthorne, Jr. (Hawthorne &
          Hawthorne, on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Robert Hurt Robertson (appellant) appeals from his bench

trial conviction for driving after having been declared a

habitual offender and in such a manner as to endanger the life,

limb, or property of another, in violation of Code § 46.2-357.

On appeal, he contends the trial court erroneously ruled (1) that

the delay in trying him did not violate his constitutional speedy

trial rights; (2) that granting the Commonwealth's mid-trial

continuance did not deprive him of a fair trial; and (3) that the

testimony of the Commonwealth's key witness was not so incredible

as to render the evidence insufficient as a matter of law to

support his conviction.    For the reasons that follow, we affirm

appellant's conviction.
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                                  I.

                                 FACTS

                           A.   THE OFFENSE

     At around midnight on October 4, 1995, Deputy Joe Alder

pursued a vehicle after having received a complaint from Howard

Roark that the vehicle was trespassing repeatedly on his

property.   During the pursuit, Alder obtained the license number

and learned that the vehicle, a pickup truck, was registered to

appellant's father.   As Alder pursued the truck, it ran a stop

sign and, despite rainy conditions, drove at speeds "well over

100 miles per hour," finally coming to rest off the road in the

mud when the brakes locked up.    Alder saw a tall, slender white

male exit the passenger side of the truck and a short male exit

the driver's side.    He watched both men escape into the woods.

Alder could not identify either person.       Deputy Alder then went

to appellant's nearby house.    Although the house was "wide open"

and the lights and television were on, no one responded to

Alder's knocking.
     After refusing to testify and being held in contempt, 1 the

Commonwealth's key witness, Michael Merchant, testified that he

and appellant drove appellant's truck to Howard Roark's chicken

     1
      These events are described more fully below. The issues of
the lawfulness and propriety of the manner in which Merchant's
testimony ultimately was obtained are not before us. Even
assuming Merchant's rights were violated in one or more ways,
matters upon which we express no opinion, appellant lacks
standing to assert those issues.




                                 - 2 -
house and that appellant was driving while Deputy Alder pursued

them.    Merchant also testified that, at the time of the offense,

he was 6'1" tall and weighed 175 or 180 pounds.     The Commonwealth

asked the trial court to take judicial notice of the fact that

appellant was "much shorter and much stockier" than Merchant.    In

finding appellant guilty, the trial court noted that Deputy

Alder's testimony was "really undisputed" and that it was "clear

to [the court] . . . that [Alder] saw [appellant] getting out of

the driver seat."
                  B.   PROCEEDINGS IN THE TRIAL COURT

        Appellant was indicted on July 2, 1996, arrested, and

released on bail.      The Commonwealth's key witness, Michael

Merchant, failed to appear for appellant's trial on October 17,

1996, and the Commonwealth requested a continuance.     Counsel for

appellant said he had no objection to "a joint motion for a

continuance."    Trial was reset for December 16, 1996, and

Merchant again failed to appear.

        Trial commenced on January 15, 1997, with Merchant present

pursuant to a capias, and the court heard the testimony of Deputy

Alder.    When Merchant was called to testify, he equivocated about

whether he would tell the truth and inquired about "plead[ing]

the fifth."    Eventually, Merchant took the oath to the trial

court's satisfaction.

        On the Commonwealth's motion, the trial court granted

Merchant use immunity.     When Merchant continued to resist




                                  - 3 -
testifying, saying the concept "sound[ed] mighty fishy," the

Commonwealth's attorney informed the court that Merchant was a

probationer of the court and that, if he continued to be in

contempt of court, the Commonwealth's attorney would request the

issuance of a capias for his arrest on a probation violation.

Merchant began to answer the Commonwealth's questions, but he

claimed he did not really know appellant and had just "seen him

around town."   Merchant also claimed he had hit his head during

an epileptic seizure and could not remember what, if anything, he

told Deputy Alder about the events of October 4, 1995.
     Appellant moved to dismiss, arguing that the Commonwealth

could not convict him without Merchant's testimony and that

because Merchant could not remember the events in question,

holding Merchant in contempt would do nothing to improve his

memory.   The trial court denied the motion, found Merchant in

contempt, and ordered Merchant held until the Commonwealth's

request for revocation of his unrelated suspended sentence could

be heard.

     The Commonwealth called Officer Ed Gates, who testified that

on one evening around October of 1995, he saw Merchant driving

the pickup truck owned by appellant's father and that someone he

"believe[d]" to be appellant was with Merchant.

     The Commonwealth then moved for a continuance to allow

Merchant an opportunity to purge himself of contempt.    Appellant

objected and again moved to dismiss on the ground that a




                               - 4 -
mid-trial continuance was prejudicial to him.   The trial court

agreed that the continuance was "somewhat prejudicial" to

appellant but that Merchant's "display [also] . . . [was] rare

indeed" and necessitated granting the continuance.

     When trial resumed on April 28, 1997, appellant moved to

dismiss on constitutional speedy trial grounds, proffering that

the original charge was brought in October 1995, was nolle

prossed because of the refusal of witnesses to testify, and was

re-initiated by direct indictment on July 2, 1996.   The trial

court denied that motion.   Finally, appellant moved the trial

court to reconsider its motion to dismiss based on the claimed

abuse of discretion in continuing the case after trial had begun.

Again, the court denied that motion.
     Following the denial of those motions, Michael Merchant

appeared with counsel and testified without obvious resistance.

He indicated that he had been driving earlier on the evening in

question but that appellant was driving while Deputy Alder

pursued them.   Merchant admitted being an epileptic and said that

he took medication for that condition which made him prone to

memory lapses "[w]henever [he] get[s] excited over something,"

such as during the high speed chase in question.   Merchant

admitted that he was not authorized to drive the vehicle that

night because his operator's license had been suspended.    He also

admitted having had multiple prior driving convictions.

     Appellant moved to strike at the close of the Commonwealth's




                               - 5 -
evidence on the ground that Merchant's testimony was incredible.

The trial court denied the motion.         Appellant renewed the motion

during his closing argument, again challenging the credibility of

Merchant's testimony and contending that, without Merchant's

testimony, the Commonwealth's circumstantial evidence that

appellant exited from the driver's side of the vehicle was

insufficient to convict appellant.

     The trial court found that the critical portions of

Merchant's testimony were credible and, taken in conjunction with

Deputy Alder's testimony, that the evidence was sufficient to

prove the charged offense beyond a reasonable doubt.
                                   II.

                               ANALYSIS

               A.   CONSTITUTIONAL SPEEDY TRIAL RIGHTS

     Appellant contends he was denied his constitutional right to

a speedy trial.     We disagree.

     "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.'"       Kelley v. Commonwealth, 17 Va. App.

540, 544, 439 S.E.2d 616, 618 (1994) (quoting Barker v. Wingo,

407 U.S. 514, 530, 533, 92 S. Ct. 2182, 2192, 2194, 33 L. Ed. 2d

101 (1972)).   In reviewing an alleged constitutional speedy trial

violation, the Court must consider:        (1) the length of the delay;




                                   - 6 -
(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, 407 U.S. at 530, 92 S. Ct. at 2191.




                              - 7 -
                        1. Length of Delay
           The first of the Barker factors, the length
           of delay, is properly considered separately
           from the other three, for if the delay in
           bringing a defendant to trial is not
           sufficient to raise at least an inference of
           injustice, further exploration is
           unnecessary. When the delay involved becomes
           "so protracted as to be 'presumptively
           prejudicial', the first factor becomes a
           'triggering mechanism' which necessitates
           'inquiry into the other factors that go into
           the balance.'" There is no bright line time
           limit that serves to automatically invoke a
           defendant's right to exploration of the other
           factors. A defendant must be able to at
           least raise the presumption that, in his
           particular case and in his particular
           circumstances, the delay was so detrimental
           as to have endangered his right to a fair
           trial.

Beachem v. Commonwealth, 10 Va. App. 124, 131, 390 S.E.2d 517,

520 (1990) (quoting Fowlkes v. Commonwealth, 218 Va. 763, 766,

240 S.E.2d 662, 664 (1978) (quoting Barker, 407 U.S. at 530, 92

S. Ct. at 2192)).   "'[T]he Sixth Amendment does not apply to the

period before a defendant is indicted, arrested, or otherwise

officially accused.'"   Holliday v. Commonwealth, 3 Va. App. 612,

617, 352 S.E.2d 362, 364 (1987) (quoting United States v.
MacDonald, 456 U.S. 1, 6, 102 S. Ct. 1497, 1501, 71 L. Ed. 2d 696

(1982)).   "When the charge is for a misdemeanor or lesser

offense, the length of delay that will be tolerated is less than

that when the charge is for a more serious crime."   Kelley, 17

Va. App. at 545, 439 S.E.2d at 619.

     The evidence in the record indicates that the offense

occurred on October 4, 1995 and that appellant was arrested on



                               - 8 -
July 8, 1996, on an indictment issued for that offense on July 2,

1996.       However, appellant proffered at trial that an indictment

was first issued against him on this charge in October 1995 but

was dismissed by nolle prosequi due to the refusal of a witness

to testify.      He contends that this period should be included in

our constitutional speedy trial evaluation.      We assume without

deciding that we may rely on appellant's proffer, making the

length of time between appellant's original indictment in October

1995, and the completion of his trial on April 28, 1997, a period

of about nineteen months.      We also assume, without deciding, that

the date of the original indictment is the proper time to begin

our constitutional speedy trial analysis. 2     The crime here is the

felony of driving after having been declared a habitual offender

and in such a manner as to endanger the life, limb or property of

another in violation of Code § 46.2-357.      It involved appellant's

        2
      Ordinarily, "'[u]nder Virginia procedure, a nolle prosequi
is a discontinuance which discharges the accused from liability
on the indictment to which the nolle prosequi is entered.'"
Arnold v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183, 185
(quoting Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d
269, 273 (1977)), aff'd on reh'g en banc, 19 Va. App. 143, 450
S.E.2d 161 (1994). Based on this principle, we have held that
when an original indictment is disposed of by nolle prosequi and
a second indictment is issued, the time calculations of the
speedy trial statute, Code § 19.2-243, are to be counted from the
date of the second indictment. See 18 Va. App. at 221-22, 443
S.E.2d at 185. In the context of constitutional speedy trial
rights, however, we have not expressly addressed this issue. In
Arnold, we applied this principle in the context of the statutory
speedy trial analysis but analyzed the constitutional speedy
trial claim from the date of the original finding of probable
cause. Id. at 220-24, 443 S.E.2d at 184-86. We do not address
this issue in the case before us.




                                   - 9 -
driving at speeds of "well over 100 miles per hour" in an attempt

to evade a police officer.      We consider this felony a more

serious crime.    Assuming without deciding that the delay of

nineteen months was presumptively prejudicial, we evaluate the

additional factors from Barker to determine whether appellant's

constitutional speedy trial rights were violated.

                       2.    Reason for the Delay

        The Commonwealth bears the burden "'to show, first, what

delay was attributable to the defendant and not to the

Commonwealth and, second, what part of any delay attributable to

the prosecution was justifiable.'"         Holliday, 3 Va. App. at 617,

352 S.E.2d at 365 (quoting Fowlkes, 218 Va. at 767, 240 S.E.2d at

664).    Here, after the second indictment in July 1996, appellant

joined in the Commonwealth's continuance motion so that he would

have sufficient time to prepare for trial.        However, the record

indicates that most significant delays were due to the failure of

the Commonwealth's key witness to cooperate, despite the

Commonwealth's earnest efforts to secure his attendance at trial.

Therefore, in evaluating this factor, we attribute the majority

of the delay to the Commonwealth, but we do not weigh it heavily

because the Commonwealth was not at fault in the delay.         See id.

at 618, 352 S.E.2d at 365 (citing Barker, 407 U.S. at 531, 92

S. Ct. at 2192).

                      3.    Assertion of the Right
        Next, we consider whether appellant asserted his




                                  - 10 -
constitutional speedy trial right.       He objected to the

continuance of January 15 and asserted his constitutional speedy

trial right on April 28, prior to the resumption of Merchant's

testimony.   We hold, therefore, that he timely asserted this

right.

                           4.   Prejudice

     In evaluating prejudice, the Supreme Court has identified

three interests to be protected:    "(1) preventing oppressive

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

(3) limiting the possibility that the defense will be impaired."
 Kelley, 17 Va. App. at 546, 439 S.E.2d at 620 (citing Barker,

407 U.S. at 532, 92 S. Ct. at 2193).      None of these factors

supports a finding of prejudice in this case.      First, appellant

was not incarcerated prior to trial.      Second, he makes no claim

that he suffered an abnormal degree of anxiety while awaiting

trial.   See id. at 546-47, 439 S.E.2d at 620 (noting that "anyone

who is subject to criminal prosecution will commonly suffer

anxiety and concern about the outcome").      Third, although

appellant asserts that the delay impaired his defense, we reject

this contention.   Appellant had no right to rely on Merchant's

claimed memory lapse.   See Arnold v. Commonwealth, 18 Va. App.

218, 224, 443 S.E.2d 183, 187 (rejecting claim that delay

impaired defense because it permitted a previously unavailable

witness to testify), aff'd on reh'g en banc, 19 Va. App. 143, 450

S.E.2d 161 (1994).   Finally, the passage of time did not



                                - 11 -
critically impair the ability of witnesses to remember key events

in sufficient detail.       "Even if the memories of the defendant's

own witnesses are diminished, the effect of that loss on the

defendant's case must be demonstrated before prejudice may be

found."   Kelley, 17 Va. App. at 547, 439 S.E.2d at 620.          The

record here does not support appellant's assertion that the

witnesses admitted any difficulties in recollection.        Merchant,

the key witness, testified with certainty that appellant was

driving during the high speed chase.       Further, appellant made no

allegation that any of the witnesses could have provided

appellant with an alibi if their memories had been more precise.
     Evaluating the four Barker factors in regard to appellant's

constitutional speedy trial claim, we conclude that the delay in

trying appellant did not violate his constitutional speedy trial

rights because it was not unduly lengthy, did not result from any

intentional misconduct on the part of the Commonwealth, ended on

the very day that appellant first asserted his constitutional

speedy trial right, and resulted in no actual prejudice to

appellant.

                       B.    MID-TRIAL CONTINUANCE

     "[C]ontinuances in the midst of trial should not be an

everyday occurrence.    Nevertheless, such decisions are entrusted

to the sound discretion of the trial court."         Bennett v.

Commonwealth, 236 Va. 448, 461, 374 S.E.2d 303, 311-12 (1988);
see also Gray v. Commonwealth, 16 Va. App. 513, 517, 431 S.E.2d




                                  - 12 -
86, 89 (1993) (motion for continuance in order to obtain missing

witness is addressed to sound discretion of trial court).     "In

determining whether the trial court properly exercised its

discretionary powers, we look to the diligence exercised by the

moving party to gather and make the evidence available at trial."

 Smith v. Commonwealth, 16 Va. App. 630, 636, 432 S.E.2d 2, 6

(1993).   We also consider the materiality of the evidence.    See

Gray, 16 Va. App. at 518-19, 431 S.E.2d at 89-90.   Where a party

uses due diligence to secure the presence of a material witness

at trial and the witness fails to appear, refusal to grant a

continuance even after jeopardy has attached may be an abuse of

discretion.   See id.   Generally, the granting of a continuance

"will not be reversed on appeal absent an abuse of discretion and

demonstrated prejudice to the complainant."    Price v.

Commonwealth, 24 Va. App. 785, 789, 485 S.E.2d 655, 656 (1997).

     Here, the record shows that Merchant was a material witness

and that the Commonwealth exercised due diligence to secure his

presence at trial.   Merchant was a material witness because the

Commonwealth alleged that he was in the truck with appellant at

the time of the incident in question and was the only person who

could confirm that appellant was driving.   Although Deputy Alder

was able to describe the height and build of the driver and

passenger who fled the vehicle, he did not see the face of either

and could not affirmatively identify appellant as the driver.

The Commonwealth exercised due diligence in procuring Merchant's



                               - 13 -
presence for trial and did all in its power to obtain truthful

testimony from him.    However, Merchant appeared only after a

capias was issued for him.   He refused to take the oath,

attempted to invoke his Fifth Amendment right not to testify,

refused to testify even after receiving a grant of immunity, and

claimed he barely knew appellant and did not remember making a

statement to Deputy Alder about the events of October 4, 1995.

Through these actions, Merchant became unavailable to the

Commonwealth.   Because Merchant was a material witness who was

unavailable, the trial court did not abuse its discretion in

continuing the case.    See Gray, 16 Va. App. at 518-19, 431 S.E.2d

at 89-90.

     Moreover, appellant has failed to demonstrate prejudice

caused by the continuance.   In essence, appellant asserts that he

was prejudiced because the continuance enabled the Commonwealth

to persuade Merchant to change his testimony by having the trial

judge hold him in contempt of court until he provided

incriminating testimony against appellant.   If Merchant had

provided substantive testimony at the January 15, 1997

proceedings, we might view the situation differently.    However,

because Merchant's behavior reflected an ongoing resistance to

providing any substantive testimony whatsoever, we reject this

argument.

     Appellant's argument erroneously presupposes that Merchant

abided by his oath and provided truthful testimony on January 15,



                               - 14 -
1997.    The transcript of those proceedings belies this assertion.

It contains four-and-one-half pages of dialogue between Merchant

and the trial judge reflecting the difficulty the trial judge

faced in getting Merchant to swear to tell the truth.     It also

shows that after granting immunity to Merchant, the prosecutor

tried to question him, but Merchant provided evasive, equivocal

responses.    Finally, after hearing and observing Merchant, the

trial judge ordered him to show cause why a previously suspended

sentence should not be revoked "based entirely on your behavior

here today.    Your attitude.   Your testimony.   Your total lack of

regard for the oath that was given to you by the Court."     After

hearing an additional prosecution witness, the trial judge

granted a continuance based on "this display that I've seen by

Mr. Merchant today."
        Based on the materiality of Merchant's testimony and the

Commonwealth's earnest, but unsuccessful, attempts to procure it,

the trial judge did not abuse his discretion in granting the

continuance.    Moreover, appellant, who was not held in custody

during the continuance, has failed to demonstrate prejudice,

either by showing that Merchant's January 15, 1997 behavior was

in compliance with his oath or, as we discussed in rejecting his

speedy trial claim, by showing that his defense was adversely

affected by the continuance.     Accordingly, we hold that the trial

court did not abuse its discretion in granting the continuance.

                    C.   SUFFICIENCY OF THE EVIDENCE




                                 - 15 -
     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
          The weight which should be given to evidence
          and whether the testimony of a witness is
          credible are questions which the fact finder
          must decide. However, whether a criminal
          conviction is supported by evidence
          sufficient to prove guilt beyond a reasonable
          doubt is not a question of fact but one of
          law.

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601-02 (1986).

     Viewed in this light, the evidence proved that appellant

drove his truck at excessive speeds and in a reckless manner

after having been adjudged a habitual offender.

     Deputy Alder testified that he pursued appellant's truck at

high speeds in an effort to stop the driver.   The incident

occurred late at night on wet roads.    The driver of the truck

exceeded speeds of one hundred miles-per-hour and disregarded a

traffic sign.    Eventually, the truck drove off the road and

stopped, and the two occupants fled on foot.   Alder stated that

the man who exited from the passenger side "was a tall, slender

white male" and that "a short male got out of the driver's side."

The driver and passenger were not apprehended at that time.

     On April 28, 1997, Merchant testified that he was a

passenger in appellant's truck on the night Alder pursued them


                               - 16 -
and that appellant was driving during the chase.   Merchant

confirmed that appellant was "going right fast" during the chase

and that he exited the vehicle and fled after the truck stopped.

Merchant stated that he was 6'1" tall and weighed 175 pounds.

The Commonwealth asked the trial court to take judicial notice of

the fact that appellant was "much shorter and much stockier" than

Merchant.   In finding appellant guilty, the trial court noted

that Deputy Alder's testimony was "really undisputed" and that it

was "clear to [the court] . . . that [Alder] saw [appellant]

getting out of the driver seat."
     The fact finder believed the Commonwealth's evidence,

including Merchant's testimony of April 28, 1997, and rejected

Merchant's January 15, 1997 statements that he barely knew

appellant and did not remember what, if anything, he told Deputy

Alder about the events of October 4, 1995.   The Commonwealth's

evidence was competent, was not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that appellant was

guilty of driving after having been declared a habitual offender

and in such a manner as to endanger the life, limb or property of

another in violation of Code § 46.2-357.

     For these reasons, we hold that the trial court did not err

in denying appellant's motion to dismiss on constitutional speedy

trial grounds, granting the Commonwealth's motion for

continuance, and convicting appellant of violating Code

§ 46.2-357.   Therefore, we affirm appellant's conviction.




                              - 17 -
         Affirmed.




- 18 -
