COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Richmond, Virginia
TIMOTHY A. MITCHELL
OPINION BY
v. Record No. 0857-98-2 JUDGE SAM W. COLEMAN III
AUGUST 31, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
Richard S. Blanton, Judge
Michael J. Brickhill (Michael J. Brickhill,
P.C., on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
On April 19, 1994, Timothy Mitchell was indicted for grand
larceny of a tractor. Four years later, on April 10, 1998,
Mitchell was convicted. On appeal, Mitchell contends the trial
court erred by denying his motion to suppress an incriminating
statement allegedly obtained in violation of his Fifth Amendment
privilege against self-incrimination. Mitchell also contends he
was denied his statutory right to a speedy trial. Finding no
error, we affirm.
I. BACKGROUND
A. Confession
In 1989, Burley Cobb’s farm tractor was stolen from his
residence in Prince Edward County, Virginia.
In 1993, Charlotte County Deputy Sheriff Howard Hobgood
arrested Timothy Mitchell’s girlfriend after finding stolen
property in her home during a search for Mitchell, a suspect in a
Charlotte County burglary. Sometime later, Mitchell turned
himself in to authorities in Charlotte County, and Deputy Hobgood
interviewed him in jail regarding the Charlotte County burglary.
Before doing so, Hobgood read Mitchell his Miranda rights.
Mitchell indicated he understood his rights, agreed to answer
questions, but refused to sign a waiver form. Mitchell stopped
speaking every time Hobgood started to take notes, but he never
requested a lawyer and never stated that he would not talk to
Hobgood.
The following morning, Investigator Donald Lacks interviewed
Mitchell. Lacks again read Mitchell his Miranda rights. Mitchell
responded, "I ain’t got shit to say to y’all," but then he
proceeded to talk about being in jail before and about the charges
against his girlfriend. Mitchell never requested a lawyer and
conversed generally with the investigator, but again refused to
sign a waiver form.
A few minutes later, Charlotte County Sheriff Thomas Jones
arrived at the jail. Lacks told Jones he had attempted to get a
statement from Mitchell but Mitchell had said he did not wish to
speak to him.
Jones then confirmed with Mitchell that Lacks had read the
Miranda warnings to him and that Mitchell understood his rights.
- 2 -
Jones told Mitchell that he wanted to give him an opportunity to
tell his side of the story. Mitchell responded, "there is nothing
I can tell y’all that you don’t already know . . . you-all got me;
you know what I did."
Mitchell talked about a prior conviction and prior
incarceration and talked in general about his history of stealing
from various people. Later, he complained to the sheriff about
the charges brought against his girlfriend and asked the sheriff
to drop them. Jones replied that he could not drop the charges
but that if she were found innocent through their investigation,
the charges would be dropped. Jones told Mitchell that his
girlfriend’s guilt or innocence would have to be resolved by a
court.
Later, Mitchell asked Jones "if he could do anything to help
himself." Jones told him if he had information about property
stolen in Charlotte County, "it would be taken into
consideration." Mitchell subsequently admitted stealing Burley
Cobb’s tractor. He never stated that he wanted a lawyer and never
stated that he did not want to talk to Jones. Mitchell did most
of the talking while Jones listened. Jones testified that
although Mitchell was angry, he was very calm and willing to
cooperate.
Before trial, Mitchell moved to suppress his confession that
he stole the tractor, contending the officers had obtained the
- 3 -
confession in violation of his Fifth Amendment rights. The trial
court denied the motion, and Mitchell appealed.
B. Speedy Trial
Following Mitchell's indictment on April 19, 1994, he was
admitted to bail and released on bond. The trial court entered an
order on April 19, 1994, continuing the case until June 22, 1994,
on Mitchell’s motion and stating that Mitchell "waives his Speedy
Trial rights and joins in this Motion for Continuance freely and
voluntarily." This order did not set a trial date, and the court
had not previously set a trial date.
On June 22, 1994, the trial court continued the case "until
further notice." On November 7, 1994, the court entered its next
order continuing the case and for the first time set a trial date
of March 21, 1995. The November 7 order, which Mitchell and his
attorney both endorsed, "waives his Speedy Trial rights and
[states that he] joins in this Motion for Continuance freely and
voluntarily."
On March 21, 1995, when the judge inquired if the parties
were ready to proceed, Mitchell’s attorney requested a continuance
due to a miscommunication between the defendant and the attorney.
Noting that the case had been continued several times in the past
and had been pending for almost two years, Mitchell's attorney
stated, "[w]e certainly would waive our right to a speedy trial."
The trial court entered the March 21 order "[u]pon motion of the
defendant" stating that the case was "continued generally" until
- 4 -
April 18, 1995 and that Mitchell "waives his/her Speedy Trial
rights and joins in this Motion for Continuance freely and
voluntarily." Mitchell endorsed the order, "I ASK FOR THIS."
Thereafter, the trial court, by agreement of counsel, set the
case for trial on August 8, 1995. However, on August 8, Mitchell
failed to appear for trial, and the court issued a capias for his
arrest. During the time Mitchell was a fugitive, the case was
continued. Over a year later, on November 27, 1996, police
arrested Mitchell on the capias.
On January 23, 1997, the court set trial for May 9, 1997. On
May 9, 1997, despite assurances that he would obtain private
counsel and be ready for trial, Mitchell appeared before the court
without counsel. On May 9, the court appointed counsel and
Mitchell endorsed an order as "I ASK FOR THIS," continuing the
case on his motion until June 18, 1997. The order states that
Mitchell "fully understands that a motion by the defendant or
attorney for the defendant . . . constitutes a waiver of his
speedy trial rights."1
1
Mitchell does not contend on appeal and the record does
not suggest that he waived his speedy trial rights as an
involuntary condition to being granted continuances or that his
waivers were compelled. He contends only that the waivers were
limited to the time period for which continuances were granted.
See Tomai-Minogue v. State Farm Mut. Auto, Inc. Co., 770 F.2d
1228, 1232 (4th Cir. 1985) ("[T]he Supreme Court has found it
'intolerable that one constitutional right should have to be
surrendered in order to assert another.'" (quoting Simmons v.
United States, 390 U.S. 377, 394 (1968))). But, see, Doss v.
Commonwealth, 23 Va. App. 679, 687, 479 S.E.2d 92, 96-97 (1996)
Continued . . .
After the June 18, 1997 trial date, another series of court
appearances, continuances, hearings, and waivers occurred.
Ultimately, Mitchell was tried on April 10, 1998.
On the morning of trial, Mitchell filed a motion to dismiss
on the ground that his trial had not commenced within nine months
of his indictment as required by Code § 19.2-243. The motion
alleged that between indictment on April 19, 1994, and Brickhill’s
appointment as counsel on May 9, 1997, 396 days of delay
attributable to the Commonwealth had elapsed. Mitchell makes no
claim in this appeal that the delay after May 9, 1997, until his
trial on April 10, 1998, violated his statutory speedy trial
right. The court denied the motion, and Mitchell appealed.
II. ANALYSIS
A. Confession
Mitchell contends the trial court erred in denying his
motion to suppress statements allegedly obtained in violation of
his Fifth Amendment right to remain silent. Mitchell contends
that when he told officer Lacks, "I ain’t got shit to say to
y’all," he invoked his right to silence and all further
Continued . . .
("The Fifth Amendment does not insulate a defendant from all
'difficult choices' that are presented during the course of
criminal proceedings, or even from all choices that burden the
exercise or encourage waiver of the Fifth Amendment's right
against self-incrimination." (quoting United States v. Frazier,
971 F.2d 1076, 1080 (4th Cir. 1992), cert. denied, 506 U.S. 1071
(1993))).
- 6 -
questioning should have ceased. On appeal from a denial of a
suppression motion, we view the evidence in the light most
favorable to the Commonwealth. See Giles v. Commonwealth, 28
Va. App. 527, 532, 507 S.E.2d 102, 105 (1998).
An express written waiver is not required for an accused to
waive Miranda rights. See Cheng v. Commonwealth, 240 Va. 26,
35, 393 S.E.2d 599, 604 (1990) (finding that defendant’s
decision to speak after being apprised of Miranda warnings was
sufficient to constitute waiver). Officer Hobgood read Mitchell
the Miranda warnings on June 13, 1993. Mitchell indicated that
he understood his rights and agreed to answer questions. The
next morning, Officer Lacks again read Mitchell the Miranda
warnings. Mitchell’s refusal to sign the waiver form does not
constitute an invocation of his Fifth Amendment right to remain
silent.
Where police read Miranda warnings to a defendant and the
defendant knowingly and intelligently waives his or her
constitutional rights, we presume that the waiver remains in
effect "until the suspect manifests, in some way which would be
apparent to a reasonable person, his [or her] desire to revoke
it." Washington v. Commonwealth, 228 Va. 535, 548-49, 323
S.E.2d 577, 586 (1984).
Only when an accused expresses a clear and unambiguous
assertion of his (or her) right to remain silent must
investigators cease further questioning. See e.g., United
- 7 -
States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996) (finding
that, "I don’t got nothing to say" did not constitute an
invocation of the right to remain silent); Burket v.
Commonwealth, 248 Va. 596, 609-10, 450 S.E.2d 124, 131-32 (1994)
(finding that, "I don’t think I should say anything" did not
constitute an invocation of right to remain silent); Akers v.
Commonwealth, 216 Va. 40, 45-46, 216 S.E.2d 28, 31-32 (1975)
(finding that, "Do I have to talk about it now?" did not
constitute an invocation of the right to remain silent); Green
v. Commonwealth, 27 Va. App. 646, 652-54, 500 S.E.2d 835, 838-39
(1998) (finding that, "[I don’t] have anything more to say" did
not constitute an invocation of the right to remain silent).
After Lacks re-Mirandized Mitchell, Mitchell stated, "I
ain’t got shit to say to y’all." Then Mitchell proceeded to
volunteer information to Lacks. Under these circumstances, we
find that Mitchell’s phrase, "I ain’t got shit to say to y’all,"
did not constitute a clear and unambiguous invocation of his
Fifth Amendment right to remain silent. Accordingly, the trial
court did not err in denying Mitchell’s motion to suppress his
inculpatory statement. Additionally, we reject Mitchell’s
assertion that investigators applied undue pressure regarding
charges brought against Mitchell’s girlfriend. Mitchell, not
the investigators, initiated discussion of the charges against
his girlfriend. Although Mitchell’s concern for his girlfriend
may have prompted his confession, nothing in the record suggests
- 8 -
that investigators used those charges as leverage to obtain
involuntarily his confession.
B. Speedy Trial
When a defendant charged with a felony offense is not
continuously held in custody, he or she is forever discharged from
prosecution if trial is not commenced for that offense within nine
months from the date he or she is indicted. See Code § 19.2-243;
Harris v. Commonwealth, 21 Va. App. 347, 349-50, 464 S.E.2d 516,
517 (1995).
In Mitchell's motion to dismiss, and on brief, he confines
his argument to the period between indictment on April 19, 1994,
and May 9, 1997, the date counsel was appointed for him.
Mitchell argued at trial, and argues on appeal, that during that
three-year period, the Commonwealth unjustifiably exceeded the
nine-month statutory limitation for commencing trial. Because
Mitchell limits his claim to that time period, our review is
confined to that time. 2 See Rule 5A:18.
Between April 19, 1994 and May 9, 1997, the trial court
entered four orders, the last three of which Mitchell personally
endorsed as having been asked for on his motion and which
contained explicit waivers of his statutory speedy trial rights.
2
Additionally, we note that this Court, by order denying
Mitchell’s petition for appeal (Record Number 0856-98-2), has
determined that the delays during the period after May 9, 1997
were not chargeable to the Commonwealth.
- 9 -
Additionally, on one occasion, Mitchell’s attorney, in
Mitchell’s presence, orally represented to the court that he
waived any speedy trial claim. In this appeal, we decide the
impact that those waivers have on Mitchell’s statutory speedy
trial claim.
A defendant may agree to a general waiver of his or her
statutory speedy trial rights, in which instance the accused
foregoes his or her rights granted by Code § 19.2-243.
Additionally, an accused may make a limited waiver of that
right, in which instance the accused foregoes the statutory
protection for a specified period of time. See Shavin v.
Commonwealth, 17 Va. App. 256, 266, 437 S.E.2d 411, 418 (1993).
Where a defendant moves for, or concurs in the continuance of a
trial date, such action tolls the running of the speedy trial
bar and that time is specifically excepted under the statute.
Code § 19.2-243(4). However, a continuance moved for or
concurred in by the defendant, while not included in the time
frame within which the Commonwealth must commence trial, does
not waive or bar a defendant's right to assert a speedy trial
claim. See Code § 19.2-243. While a defendant may request or
concur in a continuance and simultaneously waive his statutory
speedy trial rights, the two are separate and distinct. A
continuance has the effect of excluding the time for the delay
from the period attributable to the Commonwealth. A waiver,
however, foregoes the accused's right to assert the speedy trial
- 10 -
statute as a bar to prosecution notwithstanding the effect of the
statute. See id. at 267, 437 S.E.2d at 419. A general waiver
bars the defendant from raising a statutory speedy trial claim
regarding any delay accrued before the waiver is revoked, if at
all. A limited waiver, by its terms, will limit or specify the
period to which it applies.
Although the three orders3 entered prior to the May 9, 1997
order arguably are general waivers that would remain in force
until revoked, for purposes of this opinion we need only consider
the scope of the waiver of the May 9, 1997 order.
We hold that the waiver language of the May 9, 1997 order
operated as a general waiver that barred Mitchell from making any
statutory speedy trial claim with regard to delays preceding the
entry of that order and thereafter until revocation of the
waiver. 4 That order, signed by defendant and defendant’s counsel,
states that the defendant’s motion for a continuance also
constitutes a waiver of his statutory speedy trial rights.
Without that language, defendant’s motion would have merely been
for a continuance and would have only tolled the clock
3
See Appendix I attached for an example of the identical
language contained in the three previous orders.
No constitutional speedy trial issue is asserted and, for
this reason, we do not decide the effect of this waiver on
defendant's constitutional right to a speedy trial.
4
See Appendix II for the language of the May 9, 1997 order
which constitutes a general waiver of the statutory speedy trial
right.
- 11 -
prospectively. See Code § 19.2-243. With the language, however,
the defendant waived his right to make a statutory speedy trial
claim for the delays preceding the waiver and until such time as
the waiver ceased to be effective. Accordingly, because Mitchell
waived his right on May 9, 1997 to claim a statutory speedy trial
defense, the trial court did not err in denying Mitchell’s motion
to dismiss in which he alleged the Commonwealth exceeded the
statutory speedy trial period between April 19, 1994 and May 9,
1997.
Finding no error in the trial court’s denial of the motion
to suppress nor in its denial of the motion to dismiss for an
alleged violation of speedy trial rights, we affirm Mitchell’s
conviction.
Affirmed.
- 12 -
APPENDIX I
VIRGINIA: IN THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
COMMONWEALTH OF VIRGINIA
v. CASES NO(S): CR94-80, CR94-81,
CR94-278, CR94-279, CR94-280
TIMOTHY A. MITCHELL
ORDER
Upon motion of the defendant, TIMOTHY A. MITCHELL, by
counsel, the above styled case(s) are hereby set for trial)
with/without a jury (continued generally) on the docket of this
Court until April 18, 1995 at 10:00 a.m./p.m., or as soon
thereafter as can be heard. Defendant has been personally
advised by his/her trial counsel as to and fully understands
his/her rights to a Speedy Trial for these charges pursuant to
the United States Constitution, the Virginia Constitution and
Va. Code Section 19.2-243, 1950, as amended, and with all of
these rights in mind waives his/her Speedy Trial rights and
joins in this Motion for Continuance freely and voluntarily.
DATE: 3/21/95 JUDGE: /s/ William L. Wellons
I ASK FOR THIS: SEEN AND AGREED:
/s/ T. A. Mitchell /s/ James R. Ennis
DEFENDANT COMMONWEALTH'S ATTORNEY
/s/ Michael Morchower
COUNSEL FOR DEFENDANT
- 13 -
APPENDIX II
VIRGINIA: IN THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
COMMONWEALTH OF VIRGINIA
v. CASE NO(S): CR94-80, CR94-81, CR94-278, CR94-279
CR94-280, CR97-36, CR97-37, CR97-156 & CR97-157
TIMOTHY A. MITCHELL
ORDER
This matter came to be heard on the 9th day of May, 1997
with the Attorney for the Commonwealth, (the defendant) and
(attorney for the defendant) present. Upon motion of the
(Attorney for the Commonwealth), (the defendant), (the attorney
for the defendant), the above styled case(s) are hereby (set for
trial) (continued generally) on the docket of this Court until
June 18, 1997 at 9:30 a.m./p.m. or as soon thereafter as can be
heard. Upon motion of the (Attorney for the Commonwealth),
(defendant), (attorney for the Defendant), this matter will be
heard by (the Court) (a jury). Defendant has been advised by
his trial counsel as to and fully understands his rights to a
speedy trial for these charges pursuant to the United States
Constitution, the Virginia Constitution and Va. Code Section
19.2-243, 1950, as amended, and fully understands that a motion
by the defendant or attorney for the defendant or a motion for
continuance agreed to by the defendant or attorney for the
defendant constitutes a waiver of his speedy trial rights.
Defendant further fully understands and agrees that if
these cases are set for trial without a jury, failure to notify
- 14 -
the Court of a request for a jury trial less than thirty days
prior to the trial date set hereinabove will constitute a waiver
of the right to trial by jury.
Enter this 9th day of May, 1997.
/s/ Richard S. Blanton
JUDGE
I ASK FOR THIS/SEEN AND AGREED
/s/ James R. Ennis
COMMONWEALTH ATTORNEY
I ASK FOR THIS/SEEN AND AGREED
/s/ Michael J. Brickhill
COUNSEL FOR DEFENDANT
I ASK FOR THIS/SEEN AND AGREED
/s/ T. A. Mitchell
- 15 -