                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia

ROBIN KALLEEN RADCLIFF

v.           Record No. 0987-93-1        MEMORANDUM OPINION * BY
                                         JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                      JUNE 6, 1995

         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                       Frederick B. Lowe, Judge

     Gerard T. Schafer; Jon M. Babineau for appellant.
     H. Elizabeth Shaffer, Assistant Attorney General
     (James S. Gilmore, III, Attorney General, on brief),
     for appellee.



     Robin Kalleen Radcliff (defendant) was convicted by jury of

capital murder and conspiracy to commit capital murder.     On

appeal, defendant complains that the trial court erroneously (1)

refused to admit into evidence a videotape of her psychiatric

evaluation, (2) denied her statutory right to a speedy trial, and

(3) admitted the hearsay statements of alleged co-conspirators.

Defendant further contends that the evidence was insufficient to

support the convictions.    We disagree and affirm the judgment of

the trial court.

     Under familiar principles of appellate review, we consider

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.    Traverso v. Commonwealth, 6 Va. App. 172, 176, 366

S.E.2d 719, 721 (1988).    The parties are fully conversant with

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the record, and a recitation of the facts is unnecessary to this

memorandum opinion.
                         HYPNOTIC EVIDENCE

     It is well established that hypnotic testimony is considered

unreliable and inadmissible evidence in this Commonwealth.     See

generally Hopkins v. Commonwealth, 230 Va. 280, 289-90, 337

S.E.2d 264, 270 (1985), cert. denied, 475 U.S. 1098 (1986);

Greenfield v. Commonwealth, 214 Va. 710, 715-16, 204 S.E.2d 414,

419 (1974). In Hopkins, the Supreme Court observed that
     [i]t is generally agreed that a person under hypnosis (1)
     is vulnerable to both conscious and unconscious
     suggestion, (2) may imagine details to fill gaps in his
     memory (confabulate) or intentionally fabricate facts to
     benefit himself or please the hypnotist, (3) may be
     unable to distinguish fact from fiction, both during and
     following hypnosis, and (4) may emerge from hypnosis with
     a strong subjective confidence in his subsequent
     recollection of the events recalled during hypnosis.


Hopkins, 230 Va. at 291, 337 S.E.2d at 271 (citations omitted).

See generally Archie v. Commonwealth, 14 Va. App. 684, 420 S.E.2d

718 (1992) (trial court properly excluded description of an accused

while under sodium amytal).

     After viewing the videotape in issue, the trial court

determined that "viewing . . . that portion of the tape showing

only the hypnosis itself as well as an in-court demonstration of it

without any testimony would be of little probative value and

carries with it a great risk of fabrication."   The admissibility of

evidence rests within the sound discretion of the trial court, and

its rulings will not be disturbed on appeal absent a "clear abuse"

of such discretion.   Coe v. Commonwealth, 231 Va. 83, 87, 340



                               - 2 -
S.E.2d 820, 823 (1986).    Under the circumstances here, we find that

the court properly excluded disfavored evidence.
                              SPEEDY TRIAL

     Code § 19.2-243 provides, in pertinent part, that "the

accused, if . . . held continuously in custody thereafter, shall be

forever discharged from prosecution for such offense if no trial is

commenced in the circuit court within five months 1 from the date

. . . probable cause was found by the district court."      Id.

However, the statute delineates several circumstances which excuse

noncompliance, including delay occasioned "[b]y continuance granted

on the motion of the accused or his counsel, or by concurrence of

the accused or his counsel in such a motion by the attorney for the

Commonwealth . . . ."     Id. (4).   These exceptions are not "all

inclusive" and "others of a similar nature are implied" by the

statute.   Moten v. Commonwealth, 7 Va. App. 438, 442, 374 S.E.2d

704, 706 (1988) (citations omitted).     "The exceptions, both express

and implied, often look to the defendant's actions that tend to

delay the trial."   Id.; see Jones v. Commonwealth, 13 Va. App. 566,

570, 414 S.E.2d 193, 195 (1992).

     Here, the Juvenile and Domestic Relations District Court found

probable cause on November 18, 1991, and defendant was continually

in custody until trial commenced on February 9, 1993.     In the

interim, defendant presented numerous motions to the court which

necessarily delayed trial.    The first, filed December 9, 1991,

     1
      "The five month period is computed as 152 and a fraction
days." Moten, 7 Va. App. at 441, 374 S.E.2d at 706.




                                 - 3 -
requested access to defendant for purposes of psychiatric

evaluation and was followed by like motions and attendant orders on

January 22, 1992, June 8, 1992, and July 13, 1992.   Additional

delays resulted from two continuance motions attributed to

defendant.

     Clearly, the delay from December 9, 1991, to September 8,

1992, was occasioned by defendant's successive motions related to

psychiatric evaluation.   These "motions were 'by no means . . .

frivolous or wholly without substance[,]' and were acts 'which

necessitated a slowdown of the judicial process.'"    Jones, 13 Va.

App. at 571, 414 S.E.2d at 195 (citation omitted).   The motions

evinced no concern by defendant for a speedy trial and "remove[d]

[her] case from the protections afforded by the statute."      Id.

Defendant's continuance motion of November 12, 1992, and related

order, postponed trial until February 9, 1993.    Thus, when

responsibility for these delays is properly assessed against

defendant, and the related days deducted from the relevant elapsed

time, trial was commenced within the statutory period.

     Defendant's assertion that her motions did not create a

"failure to try the accused" chargeable to defendant because the

related orders oftentimes did not recite definite trial dates is

also without merit.   See Code § 19.2-243.   This argument was

considered and rejected in Townes v. Commonwealth, 234 Va. 307,

322, 362 S.E.2d 650, 658 (1987), cert. denied, 485 U.S. 971 (1988),

and, consistent with Townes, we reject it here.
                               HEARSAY



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       A conspiracy is "'an "agreement between two or more persons by

some concerted action to commit an offense."'"      Johnson v.

Commonwealth, 8 Va. App. 34, 38, 377 S.E.2d 636, 638 (1989)

(citations omitted).    The crime is "committed when the agreement

. . . is complete, regardless of whether any overt act in

furtherance of commission of the substantive offense is committed."

 Id.   "[A] conspiracy . . . may be established by circumstantial

evidence," and "a formal agreement need not be shown."      Stultz v.
Commonwealth, 6 Va. App. 439, 442-43, 369 S.E.2d 215, 217 (1988)

(citations omitted).

       Once a "conspiracy has been proved, 'the acts and declarations

of any of the conspirators, in furtherance of the object of the

conspiracy, are admissible evidence against each and all of them,

though such acts and declarations were not done and said in the

presence of all.'"     Amato v. Commonwealth, 3 Va. App. 544, 551-52,

352 S.E.2d 4, 8-9 (1987) (citation omitted).     However, "before the

co-conspirator's hearsay declaration may be admitted, a prima facie

case of conspiracy must be established by evidence independent of

the declarations themselves."     Rabeiro v. Commonwealth, 10 Va. App.

61, 63, 389 S.E.2d 731, 732 (1990).      We accord the factual findings

of the trial court "in making [this] admissibility determination

. . . the same weight as . . . a finding of fact by the jury."       Id.

at 64, 389 S.E.2d at 733.

       Michael Bourne testified that defendant and Gary Hinojosa

entered Bourne's bedroom on the morning of July 28, 1991, and asked

to borrow his automobile.    When questioned by Bourne, defendant



                                 - 5 -
answered, "We need to borrow your car," "Someone is going to take

care of James. 2 . . . Someone is going to shoot James."     Bourne

responded, "You're just going to have James shot?," and defendant

stated, "Well, no.    It's going to cost a lot of money."    Hinojosa

also urged Bourne to allow defendant and himself use of the car.

Clearly, both defendant and Hinojosa together wanted the vehicle

incidental to a scheme to murder James.      Defendant's statements

that "someone" was going to murder James and that, "It's going to

cost a lot of money," suggests the involvement of a person or

persons other than herself and Hinojosa.      This testimony provided
prima facie evidence of a conspiracy and, therefore, a proper

foundation for the admission of the hearsay.

     Contrary to defendant's argument, statements of a co-

conspirator made after the murder but before payment for the crime

were also admissible.   "[A] conspiracy is not terminated by

commission of the crime until the spoils are divided and the co-

conspirators have 'gone their separate ways.'"       Stumpf v.
Commonwealth, 8 Va. App. 200, 206, 379 S.E.2d 480, 484 (1989)

(citation omitted).   Manifestly, the conspiracy to murder for hire

persisted until the consideration was paid and received, thus

concluding the criminal union.
                              SUFFICIENCY

     The jury's verdict will not be disturbed unless plainly wrong

or without evidence to support it.       Traverso v. Commonwealth, 6 Va.

     2
      The victim was James Radcliff, defendant's husband.




                                 - 6 -
App. 172, 176, 366 S.E.2d 719, 721 (1988).   Our review of the

record discloses abundant evidence to support the convictions.

     Accordingly, we affirm the judgment of the trial court.

                                              Affirmed.




                              - 7 -
BENTON, J., dissenting.



     I disagree with the majority that Townes v. Commonwealth, 234

Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S. 971 (1988),

supports a holding that the trial judge's failure to initially set

a trial date in this case until more than nine months after the

finding of probable cause is permissible under Code § 19.2-243.     In

Townes, the Supreme Court noted that Townes's counsel made the

argument "that the first trial date set in his case was March 3,

1986, or some six months and eight days after the district court

found probable cause."    234 Va. at 322, 362 S.E.2d at 658.

However, the Court stated that it "disagree[d] with Townes."     Id.

Indeed, in stating the procedural posture of the case, the opinion

recites that "[o]n October 16, 1985, Townes . . . moved for a

continuance, which was granted by order entered the same date, and

trial of the case was continued to December 4, 1985."     Id. at 321,

362 S.E.2d at 658 (emphasis added).

     Moreover, the Supreme Court ruled in Townes that on "December
23 . . . well within the five-month period, . . . the March 3, 1986

trial date was set 'on motion of both parties by agreement.'"    234

Va. at 323, 362 S.E.2d at 659 (emphasis added).    This ruling moots

any other argument that Townes might have advanced concerning the

denial of a speedy trial.   This Court has previously stated that

the Supreme Court's ruling on this aspect of the speedy trial claim

was "the actual holding in Townes."     Baity v. Commonwealth, 16 Va.

App. 497, 506, 431 S.E.2d 891, 896 (1993).



                                - 8 -
     In Radcliff's case, the Juvenile and Domestic Relations

District Court found probable cause on November 18, 1991.     In an

order dated September 8, 1992, the circuit court trial judge stated

that "by agreement of counsel, this case is continued until

December 2, 1992, for trial."   The record contains no order prior

to September 8, 1992, setting a trial date.     Thus, the initial

trial date was not even set until more than nine months had passed

after a finding of probable cause.
     Code § 19.2-241 provides that "[t]he judge of each circuit

court shall fix a day of his [or her] court when the trial of

criminal cases will commence" and that "the accused . . . shall be

tried within the time limits fixed in [Code] § 19.2-243."     Thus,

Code § 19.2-241 unambiguously requires the trial judge to provide a

benchmark "to insure a speedy trial, for the benefit of the accused

no less than for the Commonwealth."      Benton v. Commonwealth, 90 Va.

328, 332, 18 S.E. 282, 284 (1893).      Correspondingly, the Supreme

Court has held that "[a] defendant does not waive his right to a

speedy trial because he remains silent or does not demand that a

trial date be set within the prescribed period."      Godfrey v.

Commonwealth, 227 Va. 460, 463, 317 S.E.2d 781, 783 (1984).

     This Court recognized the importance of setting a trial date

when, in Williams v. Commonwealth, 2 Va. App. 566, 347 S.E.2d 146

(1986), we noted that a "trial date scheduled by the court in a

criminal case must be documented before we may consider it in

evaluating trial delay."   Id. at 569, 347 S.E.2d at 148.     In

Williams, "[t]he record contain[ed] no order or decree reflecting



                                - 9 -
that the trial court set the trial date."   Id. at 568, 347 S.E.2d

at 147.   In the following statement, this Court expressly

highlighted the role of Code § 19.2-241 in insuring a speedy trial:
          Only the trial court has authority to schedule
          criminal cases for trial. Code § 19.2-241 . . .
          contemplates an orderly procedure for setting
          criminal cases and expressly places the control of
          that process under the supervision of the trial
          court, not a party litigant. The policy expressed
          in this provision recognizes the role of the trial
          judge in insuring the prompt disposition of criminal
          cases.

Id. at 569, 347 S.E.2d at 148 (citation omitted).     In the absence

of any indication in this record that the trial court set a date

for a trial to occur within the prescribed five month period, it is

illogical to charge Radcliff with a delay of the trial for motions

made prior to the setting of the trial date.

     In a case with analogous circumstances, the Supreme Court of

Indiana held that a defendant's agreement to a continuance prior to

the setting of a trial date could not be attributed to the

defendant for purposes of the speedy trial statute.     State ex. rel.
O'Donnell v. Cass, 468 N.E.2d 209, 211 (Ind. 1984).     The court

stated that in the absence of a set trial date, a "defendant . . .

can only assume that when a trial date is finally set it will

conform to the limitations of the [speedy trial] rule."      Id.

     In view of the absence of evidence that a date was set for

Radcliff's trial to occur within the prescribed five month period,

I would hold that the record is insufficient to sustain the

Commonwealth's burden of proving that Radcliff caused the delay in

trying the case.   I, therefore, dissent.



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