Sunny Daze saga continues

By NATE HUBBARD/Staff

The Sunny Daze saga added another chapter last week as Judge Josiah T. Showalter Jr. granted a continuance of the convenience store owners’ Wythe County Circuit Court jury trial that was scheduled to take place last Thursday morning.
Michael and Linda Dix, who have operated Sunny Daze in Wytheville on U.S. 11 since June 2003, were arrested in May 2006 on charges of selling drug paraphernalia at their store – where they sold a variety of smoking devices and legal herbs.
Thursday’s scheduled trial was supposed to be an appeal of their conviction on the charges in Wythe County General District Court in September 2006.
The couple were fined $500 each and sentenced to two days in jail for the class 1 misdemeanor offense.
Attorney David Saliba, who began serving as the Dixes’ lawyer on Feb. 19, cited a number of issues in his continuance motion filed just after he started working on the case.
The motion stated that “counsel needs additional time to adequately prepare for trial,” especially because “the facts and circumstances involving the alleged offenses are very complex, and the trial will involve numerous complex legal issues.”
A Circuit Court jury trial for Rocky Adcox also was scheduled to be heard last Thursday morning, which Saliba cited as another reason to continue the Dixes’ case as a way to clear up the crowded docket.
Adcox’s matter ended up being settled by a plea agreement late Wednesday afternoon; however, Showalter already had granted the continuance during a conference call earlier in the week, Saliba said.
Although Showalter did grant the continuance, Smyth County prosecutors had filed a dissenting response to the initial motion.
“The continuance was granted over our objection,” said Michael Jones, a Smyth County assistant commonwealth’s attorney. “The reason we objected to it was because of the age of this case.”
Jones is handling the case as a special prosecutor because of conflicts of interest in the Wythe County commonwealth’s attorney’s office created by a civil suit filed against the Dixes.
Lee Harrell, Wythe County’s deputy commonwealth’s attorney and the prosecutor during the Dixes’ District Court case, filed a defamation of character suit in July 2007 in response to the Dixes’ claim on their Web site, http://www.sunnydazepipes.com, that stated that they had to listen “to the Deputy Commonwealth Attorney lie in court.”
The special prosecutors were appointed to the case in October 2007.
Roy Evans, Smyth County’s commonwealth’s attorney, took issue with Saliba’s claim that the defendants “diligently pursued new local counsel” in his response to Saliba’s continuance motion.
“Mr. Saliba was not retained until the eleventh hour,” Evans stated.
Evans also stated that he wants the case to be resolved quickly because of “strong criticism and allegations of corruption” that Wythe County law enforcement, the judicial system and the commonwealth’s attorney’s office have endured through comments made by the Dixes.
In addition to the comments posted on the Sunny Daze Web site that led to Harrell’s civil suit, Evans also cited postings made on the Web site http://www.always420forum.com that the defendants made seeking assistance with their case.
The two postings, which were made on Oct. 26, 2006, on the site that bills itself as a “Marijuana Weed Forum,” still are accessible through a search on the home page for “Sunny Daze.”
“Small town justice, a tainted judge and a prosecuting attorney that lied, found us guilty of paraphernalia sales,” states part of the first posting attributed to “sunnydaze” and titled “Busted For Selling Legally!” “We have appealed. There are stores all over virginia [sic].
“We have fought back against them selling pig noses and putting their pictures up on the wall, and they in turn have tried every dirty way they know to put us out of business. We are small and the attorney fees are taking their toll on us. We are trying to figure out a way to raise some money and thought if we got this out on the internet [sic] we may get some help.”
After a response from another Web site visitor in part saying, “i [sic] feel your pain man, the establishment is always trying to bring you down,” the second “sunnydaze” posting titled “Pig Party At Sunny Daze” gives additional comments on the search that led to their arrests.
“We got screwed!” the second posting states.
Since Harrell’s civil suit was filed, the Dixes’ have replaced part of the offending statement on the Sunny Daze Web site about lies in court with a string of “X” symbols.
However, comments questioning the conduct of the Wythe County Sheriff’s Office and other court personnel during the Dixes’ arrest and District Court proceedings still remain on the site.
“Therefore, the Commonwealth opposes another continuance on defendants’ motion because of the inordinate delay from the date of the offense, because the delay is attributable to defendants’ inaction and because delay is unfair to the Commonwealth and those witnesses who must suffer defendants’ childish attacks pending their day in court,” Evans said in summing up his objection to the continuance motion.
Evans’ objection also requested that the Dixes’ be held in contempt and sentenced to serve 48 hours in jail if the continuance was granted.
Despite the continuance objection, Jones said the Smyth County office will continue to be able to serve as unbiased prosecutors.
The Sunny Daze site appears to have not been updated in months and there are no statements made criticizing any conduct by the Smyth County prosecutors.
“We’re there basically to take care of the charge and prosecute the case and have an objective view,” Jones said, adding that he’s not concerned about the Dixes potentially posting negative comments regarding Smyth County’s conduct in the matter.
Saliba said he had been somewhat familiar with the case prior to becoming the Dixes’ lawyer two week ago and was intrigued by the many unusual legal aspects it presents.
Randall Eads, a defense attorney based out of Abingdon, represented the Dixes during their District Court trial and continued to serve as their attorney until November 2007. When reached by telephone Monday morning, Eads said he had no comment regarding the reasons why he was no longer representing the couple.
Saliba said he didn’t know the exact circumstances that ended the relationship between Eads and the Dixes, but he said his understanding was that the Dixes were “surprised” to find out that Eads was no longer representing them.
“The facts are pretty convoluted and there are a lot of legal issues that need to be sorted through,” Saliba said regarding the overall case. “It’s an interesting case from a procedural standpoint, from a factual standpoint and from a constitutional standpoint.”
The matter is now scheduled to be set in March for a new jury trial date, likely sometime this spring. The Dixes’ civil suit also remains on the docket, currently scheduled to be heard by a Circuit Court jury on April 8 and 9.
At this point, Saliba said he still plans to take the criminal appeal to trial as opposed to entering into a plea agreement. But Saliba also said he plans to enter a number of pre-trial motions, including one questioning the constitutionality of the statute the Dixes’ initially were convicted under and another requesting the exclusion of some of the items seized as evidence during the original search.
“I understand the frustration with the timeline of the case, but it’s important that my clients get their fair and proper day in court,” Saliba said. “Everyone wants to see it resolved efficiently and fairly and properly under our constitution.”
Jones said he will continue to push to get the case heard in court sooner rather than later.
“We obviously would like to dispose of this matter – it doesn’t help anyone to have it continued on for years and years,” Jones said. “We feel that we’re a very professional office, as is the Wythe County office, and we’re going to take care of this matter as expeditiously as possible.”
Nate Hubbard can be reached at 228-6611 or .