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. 
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 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 

 1These 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. 
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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 
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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 
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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 
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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; 
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(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. 
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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 
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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 

 2Ordinarily, "'[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. 
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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 
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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 
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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 
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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 
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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, 
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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 
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 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 
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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. 
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 Affirmed.