Riddick v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

JEFFREY NELSON RIDDICK

v. Record No. 0155-95-1 OPINION BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA MARCH 19, 1996

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Thomas R. McNamara, Judge
Fay F. Spence for appellant.

Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Jeffrey Nelson Riddick (defendant) was convicted by a jury

for robbery in violation of Code § 18.2-58. On appeal, defendant

complains that the trial court erroneously denied his motions to

suppress his inculpatory statements to police and to dismiss the

indictment for violations of defendant's statutory and

constitutional rights of speedy trial. Finding no error, we

affirm the conviction.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

Defendant was arrested for the subject offense on July 7,

1993, at 12:43 a.m. by Norfolk Police Officer Roger Hungerford.

Hungerford immediately advised defendant of his Miranda rights,
and defendant refused even to identify himself. Later, at Police

Operations Center, Investigator W. T. Old presented defendant

with a standard police "Legal Rights Advice Form," 1 confirmed

that defendant could "read and write," and asked him to "follow

along" as Old read aloud each "right" printed on the form.

Defendant affirmatively acknowledged all the admonishments

seriatim until he reached number six, writing, "no," beside the

affirmation, "I further state that I waive these rights and

desire to make a statement." The following exchange then

occurred between Old and defendant:
Old: "[Y]ou do not want to talk to me, Mr. Riddick?"

Defendant: "[N]o, I misunderstood, I want to talk to you."

Old: "[W]ell, you signed no to [the form]."

Defendant: "[W]ell, I want to talk to you."

Old then produced a second form, which defendant completed

and signed at 2:48 a.m., three minutes after the first, waiving

each of the enumerated rights and agreeing "to make a statement."

During subsequent conversation with Old, defendant denied

involvement in the offense, and the interview concluded at "4:00

or 4:30 a.m.," when defendant stated "he didn't want to talk

anymore right then but . . . wanted us to talk . . . later in the

day . . . ."

In the early afternoon of the same day, police investigator
1
The compliance of this form with the requirements of
Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny is not
in issue.

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David E. Hill visited defendant in jail to obtain a photograph

and asked defendant if he "wished to talk to [him]." When

defendant stated that he would "talk . . . at this time," Hill

reviewed the same standard form with defendant, and he once again

waived his rights. During the ensuing interview, defendant

confessed to the crime.

On August 4, 1993, the Norfolk General District Court found

probable cause to believe that defendant committed the robbery

and several additional offenses. However, although a grand jury

indicted defendant on September 1, 1993, for the other offenses,

it did not return a "true bill" on the subject robbery. 2 Trial

on the indictments for the other offenses was thereafter

scheduled for September 10, 1993, continued to December 21, 1993,

and, later, postponed again until March 1, 1994. On January 5,

1994, another grand jury indicted defendant for the robbery, and

trial was also set for March 1, 1994. On March 1, 1994, these

trials were continued, on motion of defendant, to May 12, 1994.

Defendant remained in custody throughout this period.

On May 12, 1994, defendant, accompanied by counsel, appeared

before the court, was arraigned on the robbery and the other

offenses, and entered pleas of guilty pursuant to a plea

agreement with the Commonwealth. See Rule 3A:8(c)(1)(C),(c)(2).

The order which memorializes this proceeding recites that the

2
The words "not a true bill" were written across the face of
the indictment form.

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court "heard the evidence of the attorney for the Commonwealth,

none being offered on behalf of the defendant," retained "the

matter . . . under advisement" and ordered the preparation of a

presentence report, withholding "acceptance of said [a]greement

until . . . a sentencing hearing . . . ." See Rule 3A:8(c)(2).

The proceedings reconvened on July 14, 1994. The

presentence report was then before the court, and both defendant

and the Commonwealth urged the court to accept the terms of the

plea agreement. The trial court, however, rejected the

agreement, which prompted defendant to withdraw the guilty pleas

and necessitated the assignment of another judge to the cases in

accordance with Rule 3A:8(c)(4). After an alternate judge was

designated in "late" August, the proceedings were scheduled to

resume on October 27, 1994. On October 26, 1994, defendant moved

the court to dismiss the charges, arguing violations of both

statutory and constitutional rights of speedy trial. The

following day, the proceedings were continued, on joint motion of

defendant and the Commonwealth, to November 17, 1994, and, later,

continued once again to January 12, 1995, on motion of the

Commonwealth.
I. STATUTORY RIGHT TO 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 . . . if no trial
is commenced in the circuit court within five
months from the date . . . probable cause was
found by the district court . . . .

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 If there was no preliminary
hearing . . . , the running of the five . . .
months . . . shall be from the date an
indictment or presentment is found against
the accused.

(Emphasis added). "The five month requirement of Code § 19.2-243

translates to 152 and a fraction days." Ballance v.

Commonwealth, 21 Va. App. 1, 6, 461 S.E.2d 401, 403 (1995).

Here, a grand jury initially failed to indict defendant for

the robbery. "This action . . . operated to discharge

[defendant] on the charge . . . ." Presley v. Commonwealth, 2

Va. App. 348, 351, 344 S.E.2d 195, 196 (1986). However,

prosecution on the other offenses moved forward, and defendant

remained in custody. Meanwhile, on January 5, 1994, another

grand jury indicted defendant for the instant robbery. "'[W]hen

an original indictment [returned "not a true bill"] is supplanted

by a second indictment, the terms contemplated by the [speedy

trial] statute are to be counted from the time of the second

indictment.'" Id. at 350-51, 344 S.E.2d at 196 (quoting Brooks
v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)); Arnold

v. Commonwealth, 18 Va. App. 218, 221, 443 S.E.2d 183, 185, aff'd

en banc, 19 Va. App. 143, 450 S.E.2d 161 (1994) ("A new

indictment [constitutes] a new charge, distinct from the original

charge or indictment."). Thus, January 5, 1994, signaled the

beginning of the speedy trial period on the robbery offense. See
Harris v. Commonwealth, 21 Va. App. 347, 349-50, 464 S.E.2d 516,

517 (1995).

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 Trial on the robbery was delayed from January 5, 1994, to

March 1, 1994, and from March 1, 1994, to May 12, 1994, a total

of 127 days. The record reflects that on May 12, 1994, defendant

appeared with counsel, was arraigned on the offense, tendered a

guilty plea, and evidence was presented to the trial court.

Defendant's argument that these proceedings did not constitute

the commencement of trial within the intendment of Code

§ 19.2-243 is without merit.
Article I, Section 8 of the Virginia Constitution provides

that, "[i]n criminal cases, the accused may plead guilty," and

"[i]n case of such . . . plea of guilty, the court shall try the

case." (Emphasis added). Code § 19.2-257 directs that "[u]pon a

plea of guilty in a felony case, tendered in person by the

accused after being advised by counsel, the court shall hear and

determine the case without the intervention of a jury . . . ."

(Emphasis added). The court, therefore, must "try," "hear" and

"determine" the case upon a guilty plea, undertakings which

clearly commence trial. Moreover, it is well established that

"'[t]he trial of a criminal case begins with the arraignment

. . . , and ends with the sentence pronounced upon him by the

court.'" Burnley v. Commonwealth, 208 Va. 356, 362, 158 S.E.2d

108, 112 (1967) (quoting Gilligan's Case, 99 Va. 816, 827, 37

S.E. 962, 965 (1901)). It includes "'every stage of the

[proceeding] from . . . arraignment to . . . sentence, when

anything is to be done which can affect [defendant's] interest.'"

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 Jones v. Commonwealth, 227 Va. 425, 428, 317 S.E.2d 482, 483

(1984) (quoting Palmer v. Commonwealth, 143 Va. 592, 605, 130

S.E. 398, 402 (1925)).

Thus, the proceedings of May 12, 1994, commenced the robbery

trial within the intendment of Code § 19.2-243. The subsequent

procedural history reflects "an extension of that same

proceeding, based upon the same indictment and process and

following a regular, continuous order." Morgan v. Commonwealth,

19 Va. App. 637, 639, 453 S.E.2d 914, 915 (1995). While the

proceedings were attended by delay, "Code § 19.2-243 requires the

timely commencement of trial[,] . . . not . . . that trial be

concluded within the specified time." Id. at 640, 453 S.E.2d at

915; see Rule 3A:8(c); see also Howell v. Commonwealth, 186 Va.

894, 898, 45 S.E.2d 165, 166-67 (1947).

II. CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

Defendant also asserts violations of his right of speedy

trial guaranteed by the Sixth Amendment of the United States

Constitution and Article I, Section 8 of the Virginia
3
Constitution. In Barker v. Wingo, 407 U.S. 514 (1972), the

United States Supreme Court, "recognizing the difficulty in

evaluating speedy trial claims, adopted a balancing test" which

"identified four factors to be assessed by courts in determining

3
For purposes of this appeal, we do not distinguish between
the speedy trial guaranteed by both state and federal
constitutions. See Holliday v. Commonwealth, 3 Va. App. 612,
615-16, 352 S.E.2d 362, 364 (1987).

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whether a particular defendant has been deprived of his speedy

trial right: (1) the length of delay; (2) the reason for the

delay; (3) the defendant's assertion of his right; and (4)

prejudice to the defendant." Holliday, 3 Va. App. at 616, 352

S.E.2d at 364.

Among these factors, the length of delay is the "mechanism"

which "trigger[s]" an examination of the remaining

considerations. Barker, 407 U.S. at 530. If the delay is not

shown to be "presumptively prejudicial," there is no necessity

for "inquiry into the other factors that go into the balance."
Fowlkes v. Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664

(1978); Beachem v. Commonwealth, 10 Va. App. 124, 131, 390 S.E.2d

517, 520 (1990) ("A defendant must be able to at least raise the

presumption that the delay . . . was so detrimental as to have

endangered his right to a fair trial."). Manifestly, the period

from defendant's indictment on January 5, 1994, to the

commencement of trial on May 12, 1994, was not "presumptively

prejudicial," and nothing in the record suggests otherwise. We,

therefore, find it unnecessary to address the remaining factors

in the Barker analysis.
III. FIFTH AMENDMENT RIGHT TO REMAIN SILENT

"In order for a confession given during a custodial

interrogation to be admissible at trial, the Commonwealth must

show that the accused was apprised of his right to remain silent

and that he knowingly, intelligently, and voluntarily elected to

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waive that right." Roberts v. Commonwealth, 18 Va. App. 554,

557, 445 S.E.2d 709, 711 (1994); see also Lamb v. Commonwealth,

217 Va. 307, 310, 227 S.E.2d 737, 740 (1976). "If the individual

indicates . . . that he wishes to remain silent, the

interrogation must cease," Miranda, 384 U.S. at 473-74, and

police must "'scrupulously honor[]' that right." Pugliese v.

Commonwealth, 16 Va. App. 82, 87-88, 428 S.E.2d 16, 21 (1993)

(citing Michigan v. Mosley, 423 U.S. 96, 102-04 (1975)).

"Whether a person's decision to remain silent has been

'scrupulously honored' requires an independent examination of the

circumstances." Id. at 88, 428 S.E.2d at 21 (citing Mosley, 423
U.S. at 104-05).

We agree with defendant that "[a] statement procured in

violation of Mosley is presumed to have been obtained by an

involuntary waiver of Fifth Amendment rights and, therefore,

. . . inadmissible." Id. However, police activities reasonably

incidental to arrest and custody, which are unlikely to elicit an

"incriminating response," do not infringe upon the rights of a

suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); see

Lamb, 217 Va. at 312, 227 S.E.2d at 741.

Here, defendant's negative response to the printed

declaration, "I further state that I waive these rights and

desire to make a statement," merely prompted Investigator Old to

ask, "[Y]ou do not want to talk to me, Mr. Riddick?" The

subsequent exchange clearly reflected that defendant

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"misunderstood" the waiver form and, contrary to his written

answer, "want[ed] to talk" to Old. As a result, a second form

was immediately completed by the defendant, which waived all

Miranda rights, including the right to remain silent. Under such

circumstances, Old's effort to confirm defendant's initial answer

constituted neither impermissible interrogation nor coercion in

violation of Mosley.

When Detective Hill approached the defendant the following

afternoon and inquired if defendant wished to speak with him,

defendant answered affirmatively, once again expressly waiving

his rights by execution of a waiver form. This conduct was

consistent with defendant's earlier indication that he wished to

talk with police "later in the day." We, therefore, find no

constitutional impediment to the introduction of defendant's

confession in evidence.
Lastly, defendant asserts that the "confession was not

voluntary and that his will was overborne by the . . . police."

This is a question of law which requires "an independent

[appellate] examination of the totality of the circumstances to

determine 'whether the statement is the "product of an

essentially free and unconstrained choice by its maker," or

whether the maker's will "has been overborne and his capacity for

self-determination critically impaired."'" Wilson v.

Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)

(citations omitted). "[S]uch circumstances can be grouped into

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two categories: (1) factors relating to the physical and

psychological condition of the suspect, and (2) factors relating

to police tactics used during interrogation." Ronald J. Bacigal,

Virginia Criminal Procedure § 7-2, at 130 (3d ed. 1994).

The record discloses that defendant was twenty-nine years of

age at the time of arrest for the subject offense. He had

withdrawn from school in the tenth grade and thereafter

maintained sporadic employment while regularly engaging in the

abuse of substances, including alcohol, marijuana, and cocaine.

Defendant's adverse contacts with the criminal justice system

date from 1977 and include both misdemeanor and felony arrests

and convictions, with related periods of probation,

incarceration, and parole. The record reflects no evidence of

intellectual or physical deficits. Defendant was taken into

custody at 12:43 a.m. and interviewed by Investigator Old for

less than two hours. When visited by Investigator Hill the

following afternoon, defendant was "acting normal, nothing

unusual."
Defendant testified that his statements to police were

induced by promises of "help" with the "charges" and his "drug

problem" and threats to "make [him] burn for all the charges."

Despite his efforts to terminate the interview, "[t]hey kept

talking," and defendant finally spoke "because [he] was scared."

Our review of the record reveals an alert and perceptive

defendant, familiar with criminal investigations, arrest and

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incarceration, fully cognizant of his circumstances and those

considerations appropriate to a voluntary waiver of his

constitutional rights. Defendant's account of the interviews is

disputed by other evidence and unsupported by the record. We,

therefore, find that defendant's confession was obtained pursuant

to the instructions of Miranda and properly admitted into

evidence.

Accordingly, the conviction is affirmed.
Affirmed.

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