COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Norfolk, Virginia

DEVIYON MARQUETTE NICHOLS MEMORANDUM OPINION * BY v. Record No . 0304-17-1 JUDGE MAR Y GRACE O’BRIEN MARCH 20, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH William S. Moore, Jr., Judge W. McMillan Powers, Assistant P ublic Defender, for appellant. David M. Uberman, Assistant A ttorney General (Mark R. Herring , Attorney General, on br ief), for appellee.
A jury found Deviyon Marquette Nichols (“appellant”) guilty of possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. Appellant contends that the court erred in denying his motion to suppress statements he made to police, in failing to set his suppression motion on the day of trial, and in denyi ng his motion to dismiss the i ndictment based on a speedy trial violation. Finding n o error, we affirm.
BACKGROUND On the afternoon of Ju ly 13, 2016, Crystal Crawford flagged do wn Officer Joseph Porter of the Portsmouth Police Department who was driving through her ne ighborhood. Crawford told Officer Porter that a man in her house refused to leave and “ma y have [her] gun.” While Officer Porter waited outside, Crawford confirmed that her gun was miss ing.

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - Officer Porter saw appellant le ave Crawford’s h ome through a b ack door, carrying a laundry basket of clothes. Appellant ran toward a parked car, and Offi cer Porter followed in his cruiser, without activating his emergency equipment. Officer Porter pul led up to the car, where appellant and Crawford were “yelling back and forth.” Appellant was tell ing Crawford, “You ’re lying. I don’t have your gun . . . It’s in the house.” Officer Porter a sked appellant to step over to him and provide his identification card; appellant complied. Officer P orter explained that Crawford reported that appellant took he r gun. He advised appellant, “Listen, no body is in trouble. If you give me the gun, that can be the end of it. Just give me t he gun back.” A ppellant responded, “Okay, I’ll give you the gun.” Appellant told Officer Porter that the gun was inside the car parked next to them, and Officer Porter subsequently rec overed a 9mm handgun from the ve hicle’s glove compartment. Two other officers arrived at that point. One of them, Sergeant Ke vin Johnakin, took appellant’s identification card to check for any outstanding warrants while Officer Porter reviewed a police database to ensure that the gun was not a stolen weapon. After the officers confirmed that neither Nichols nor Crawford had any out standing warrants and the gun w as “legitimate,” Officer Porter walked over to appellant to “cut him loose.” He told appellant that the “situation could have really snowballed had you [driven] away with a stolen gun, but we were able to get it back.” Officer Porter testified that he “was going to clear it as a disturbanc e, because [appellant ] was returning the property.” Sergeant Johnakin then told Officer Porter that appellant ment ioned having a felony conviction. Upon lear ning this informatio n, Officer Porter han dcuffed appellant, placed him in the backseat of his cruiser, and advi sed him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Officer Porter told app ellant, “Look, man, you need to be straight up wi th me; you need to be honest.” Appellant responded, “All right. I took the gun, but I wasn’t trying to take it. I was- 3 - really just trying to hide it. I was going to sta sh it somewhe re or bring it back, but I saw you guys, so I kept it.” Officer Porter ch arged appellant with possessio n of a firearm by a convicted felon. Officer Porter testified that, prior to making the arrest, his involvement with appellant lasted approximately twenty minutes. He stated that during the encoun ter, he maintaine d a conversational tone of voice and never touched appellant. Appellant remained in custody pending trial. Following a prel iminary hearing on August 19, 2016, the grand ju ry indicted him on September 1, 2016. Tr ial was set for De cember 5, 2016. On November 23, 2016, appellant filed a motion to suppress his statements and the evidence seized on the day of the incident. Counsel participated in a t elephone conference with Judge Kenneth Melvin on November 28. The telephone conference was no t recorded, bu t the parties agreed that during the conferen ce, appellant asked to have his motion to suppress heard on December 5, before proceeding with the trial on the same date. Judge Melvin denied the request, set the suppression hearing for D ecember 5, and told counsel th at the trial would be continued on appellant’s motion. On December 5, Judge William Mo ore heard and denied the suppre ssion motion. Following the ruling, counsel went to the docket clerk to obtai n a trial date. Judge Moore entered an order on December 8 containing t he following language: “[O]n m otion of [the] defense, for good cause shown, it is [o]rdered that the trial of this case be continued from 12/5/16 to March 9, 2017.” The order identified “ good cause” as follows : “Defense counselrequested suppre ssion to be heard on date of jury trial. Judge Mel vin denied [the] request.” Ap pellant’s counsel signed the order below a line stating, “I ask for this.” Appellant filed a “Motion to Amend Continuance Order” and a “M otion to Advance Jury Trial Date” on December 13, 2016. At a December 15 hearing, ap pellant’s counsel acknowledged that he did not object to the language in the continuance order and stated, “I have made a number of- 4 - what I believe are errors . . . . Specifically, I didn’t object strenuously at all to Judge Melvin’s direction that the matter be continued and that the continuance be charged to the [d]efendant.” Appellant’s counsel further stated that he “took actions signin g an order continuing the matter to March, and clearly that was with out the [d]efendant’s knowledge , nor was the [d]efendant aware of the ramifications.” He “ask[ed] the [c]ourt to show for the re cord that the order entered [on December 8] continuing t he matter to March i s over the [d]efens e objection, strenuous objection, to continuing the matter out.” The court stated “we’ll let this r ecord reflect that the matter was continued over the [d]efense ob jection, but will be held to run against the [d]efendant, because the reason that the case had to be co ntinued was one of the motions that the [d]efense had filed.” In requesting that the case be a dvanced from March 9, appellan t noted that the speedy-trial period would expire in January, but advised that he was availab le for trial on February 13. He reiterated that he “would have t o object to the continuance int o February, because I believe [appellant’s] speedy trial right s run in January.” Following t he hearing, the court entered an order that advanced the trial date from March 9 to February 13. 1 Appellant subsequently filed a m otion to dismiss the indictmen t on January 27, 2017, claiming a violation of his righ t to a speedy trial under Code § 19.2-243. The c ourt denied the motion.
DISCUSSION Appellant asserts the following assignments of error:
1. The trial court erred in denyin g [appellant’s] Motion to Suppre ss [appellant’s] statements to Offi cer Porter because the statemen ts were made while [appellant] was in custody and he had not been given his Miranda warn ings in violation of [appellant’s] rights under the Fifth and Fourteenth Amendments to the United States Constitution.

1 The order incorrectly identified the Commonwealth as the movan t but on the trial date of February 13, the court entered a “Corrected Order of Amendment of Continuance Order Nunc Pro Tunc ” noting that “[c]ounse l for the [d]efendant moved for advancem ent of the jury trial.”- 5 - 2. The trial court erred in denying [appellant’s] request to waive the three days between the suppr ession hearing and trial.
3. The trial court erred in denying [appellant’s] Motion to Dismis s Indictment CR16-1080 because [ appellant] was not brought to trial within five (5) months from the date probable cause was found in the Portsmouth General D istrict Court in violation of § 19.2-243 of the Code of Vir ginia of 1950, as amended. A. Motion to Suppress When reviewing a court’s denialof a motion to suppress, we co nsider the evidence introduced at the suppression he aring and at trial, and we view that evidence in the light most favorable to the Commonwealth. B easley v. Commonwealth, 60 Va. App. 381, 385 n. 1, 728 S.E.2d 499, 501 n.1 (20 12). In evaluating the court’s determination, “we are ‘bound by the trial court’s findings of historical fact unle ss “plainly wrong,’” and we ‘gi ve due weight to the inferences drawn from those facts’ by the trial judge and law enforcement.” Sal ahuddin v. Commonwealth, 67 Va. App. 190, 202, 795 S.E.2d 472, 478 (2017) ( quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2 d 259, 261 (1997) ( en banc ))

. However, we review de novo the court’s application of defined legal standards to the particular facts of a case. Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S .E.2d 309, 311 (1996). Appellant asserts that he was taken into custody “at the begin ning of the encounter” with Officer Porter and therefore, any statements that he made to Of ficer Porter or Sergeant Johnakin were inadmissible. He contends that Officer Porter was require d to advise him of his Miranda rights before asking any questions. The Fifth Amendment to the Unit ed States Constitution guarante es that “[n]o person . . . shall be compelled in any crimina l case to be a witness against himself.” In Miranda, the United States Supreme Court applied this constitutional right against self-incrimination to individuals who, while in custody, were subjected to police interrogation. Mira nda, 384 U.S. at 478-79.- 6 - Under Miranda, before a susp ect in police custody may be questioned by law enforcement officers, the suspect must be war ned that he has the right to remain silent, that any statement he m akes may be used as evidence against him, and that he has a right to have an attorney, either retained or appointed, present to assist hi m. Dixon v. Commonwealth , 270 Va. 34, 39, 613 S.E.2d 398, 400 (200 5) (citing Miranda, 384 U.S. at 444). Statements obtained during a custodial interrogation wit hout Miranda warnings “generally will be subject to exclusion for most proof purposes in a crimi nal trial.” Anderson v. Commonwealth, 279 Va. 85, 90-91, 6 88 S.E.2d 605, 607 (2010) (qu oting Dixon, 270 Va. at 39, 613 S.E.2d at 400). However, “‘Miranda warnings’ ar e required only when a suspect is both in custody and subjected to interrogation.” Wat ts v. Commonwea lth, 38 Va. App . 206, 214, 562 S.E.2d 699, 703 (2002). The United States Suprem e Court has defined custody as a “‘formal arrest or restraint on freedom of movement’ of the degree associated with formal arres t.” Harris v. C ommonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) ( quoting Californ ia v. Beheler, 46 3 U.S. 1121, 1125 (1983)). Circumstances that factor into a determination of whe ther a suspect is “in custody” include: (1) the manner in which the individual is summoned by the polic e, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogati on, and (6) the extent to which the officers’ beliefs con cerning the potential culpability of the i ndividual being questioned were manif ested to the individual. Id. at 565, 500 S.E.2d at 262. “No single factor is dispositiv e of the issue.” Id. at 566, 500 S.E.2d at 262. See also Oregon v. Mathias on, 429 U.S. 492 , 494-96 (1977) (per curiam) (holding that a defendant, told he was a burglary suspect, was not in custody when he gave statements at a police station in a room with a closed door). Miranda warnings also are not m andated when a person is questi oned during a routine traffic stop or investigative stop pursuant to Terry v. Ohio, 3 92 U.S. 1 (1968). “[I]f there are- 7 - articulable facts supporting a r easonable suspicion that a pers on has committed a criminal offense, that person may be stopped in order to identify him, to qu estion him briefly, or to detain him briefly, while attempting to o btain additional information.” Hayes v. F lorida, 470 U.S. 811, 816 (1985) (emphasis added). Additionally, Miranda warnings are not requi red in “general questioning of citizens in the fact-finding pro cess.” Pruett v. Commonwealth, 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986) (quoting Mirand a, 384 U.S. at 477). Here, appellant’s contention tha t Officer Porter was required to advise him of his Miranda warnings immediately upon encount ering appellant and acquiring his identification card is without merit. The circumstances of this case demonstrate that appella nt was not in custody at that time. Officer Porter was alone when he initially approached appellant and made a point of telling appellant “nobody is in trouble.” He did not restrain appellan t or draw his firear m. Officer Porter testified that he spoke with appellant in a calm, conversationa l manner and the entire encounter lasted about twenty minutes, a relatively short duration. The encounter occurred in daylight, in a residential neighborhood, near a ppellant’s former girlfriend’s residence. Officer Porter testified that he was attempting to locate Craw ford’s gun, to return it to her . His questioning of appellant was in furtherance of that goal. Becau se there was no restraint on ap pellant’s freedom of movement to the degree associated with formal arrest, appellant was not in cust ody for purposes of Miranda when he made his initial statements to O fficer Porter. See Harris, 27 Va. App. at 565, 50 0 S.E.2d at 262 (quoting Beheler, 4 63 U.S. at 1125). Any detention of appellant was incidental to the officer’s inv estigation. He was attempting to diffuse the situation and ret urn the weapon to its rightful owner. It was not until Officer Porter learned that appellant was a co nvicted felon that he arrested a ppellant and placed him in custody. At that time, he advised appellant of his Miranda warnings, and appellant confessed that he took the gun from Crawford’s house so that he could “stash” it somewhere . Because Officer Porter was not- 8 - required to issue the Miranda warnings before inquiring about the location of the gun, the court did not err in denying appellant’s motion to suppress. B. Request to Waive the Three Da ys Between Suppression Motion and Trial Appellant contends that he was entitled to have both his suppr ession motion and trial heard on December 5, 20 16. Code § 19.2- 266.2 addresses the timing of certain defense motions, including a motion to suppress evidence. The statute requires that defendants raise these motions in writing with “notice given to opposing counsel not later than s even days before trial in circuit court.” Code § 19.2-266.2(B). Further, “[a] hearing on all su ch motions shall be held not later than three days prior to trial in circuit court, unless such period is waived by the accused, as set by the trial judge.” Id. In construing statutory l anguage, we conduct a de novo review. Cartagena v. Commonwealth, 68 Va. App . 202, 207, 807 S.E. 2d 223, 22 6 (2017). “The primary objective of statutory construction is to determine legislative intent.” Ph elps v. Commonwealth , 275 Va. 139, 142, 654 S.E.2d 9 26, 927 (2008). An appe llate court interprets a statute “with r eference to its subject matter, the object sought to be attained, and the legis lative purpose in enacting it.” Esteban v. Commonwealth, 266 Va . 605, 609, 587 S.E.2 d 523, 526 (2003). Code § 19.2-266.2 requires criminal defendants to follow certa in procedures to assert their constitutional rights. See Arri ngton v. Commonwealth, 53 Va. A pp. 635, 639-41, 6 74 S.E.2d 554, 556 (2009). For example, a defen dant may not make a mid-trial motion to suppress or otherwise assert a constitutiona l violation without a biding by the statut e’s requirements for writing and filing a motion before trial. See, e.g. , Upchurch v. Commonwealth, 31 V a. App. 48, 53, 521 S.E.2d 290, 292 (1999) (holding that a defend ant may not contest probable c ause for arrest during trial). The legislative purpose of Code § 19.2-266.2(B) is not merely to enable a defendant to assert constitutional rights. The statute also serves “legitim ate state interests in protecting against- 9 - surprise, harassment, and undu e delay.” Arrington, 53 Va. App. at 640, 674 S.E.2 d at 556 (quoting Michigan v. Lucas, 500 U.S. 14 5, 152-53 (1991)). Additionally, the procedural requirement that a motion to suppress be h eard not later than three days before tr ial allows the Commonwealth to exercise its statutory right to an interlocutory appeal of an a dverse decision by the court pursuant to Code § 19.2-398. See Upchurch, 31 Va. App. at 53, 521 S.E.2d a t 292 (“The justif ication for the requirement of a pretrial suppre ssion motion is readily apparen t in light of the Commonwealth’s limited right to appeal an adverse suppression ruling.”). Appellant contends that the language of Code § 19.2-266.2(B) g rants him the unilateral authority to schedule the suppre ssion motion on t he day of tria l. He is mistaken. In Virginia, “[t]he conduct of the trial is committed to the discretion of the tria l court.” Watkins v. Commonwealth, 229 Va. 469, 484, 33 1 S.E.2d 422, 433 (1985). Code § 19.2-266. 2(B) not only requires suppression hearings to take place three days before trial, but also states that the hearing is to be “set by the trial judge.” Although a defendant ma y waive the thr ee-day period un der Code § 19.2-266.2(B), the ultimate authority for setting th e pre-trial hearing rests with the trial judge. Nothing in the statute grants a defendant the right to have a suppression hearing take place on the same day as the trial. Therefore, the court did not err in denying appellant’s request to have the matters both heard on the same day. C. Speedy Trial When considering a statutory sp eedy trial claim, we “give defe rence to the trial court’s findings of fact, but review the trial court’s ‘statutory inter pretations and legal conclusions de

novo. ’” Brown v. Commonwea lth, 57 Va. App. 381, 390, 702 S.E.2d 582 , 586 (2010) (quoting Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). The Commonwealth bears the burden of demonstrating that a delay in commencing tr ial is excused under Code- 10 - § 19.2-243. Wallace v . Commonwealth, 65 Va. App. 80, 88, 774 S .E.2d 482, 486 (20 15), aff’d, 292 Va. 1, 798 S.E.2d 595 (2016). Code § 19.2-243 provides that an accused who is continuously i n custody must be tried for a felony offense within five mont hs from the date of the prelimin ary hearing in district court. However, the statute also provides certain excusable reasons fo r the Commonwealth’s “failure to try” the accused within the statutory period. The speedy trial period is tolled when delay is caused: [b]y continuance granted on the m otion of the accused or his co unsel, or by concurrence of the accuse d or his counsel in such a motio n by the attorney for the Commonwealth , or by the failure of the acc used or his counsel to mak e a timely objection to such a motion by t he attorney for the Commonwealth. Code § 19.2-243(4). Delays attr ibutable to a defendant will no t be counted in determining whether the Commonwealth complie d with the statutory speedy trial mandate. O’Dell v. Commonwealth, 234 Va. 672, 681, 364 S .E.2d 491, 496 (1988). Appellant’s preliminary hearing concluded on August 19, 2016, and the five-month speedy trial requirement began to run the following day. See Wallace, 65 Va. App. at 89, 774 S.E.2d at 486. Barring any delay attribut able to appellant, the Commonwe alth was required to bring the case to trial by January 19, 2017. Appellant contends that the seve nty days between the December 5 motion to suppress and the trial d ate of February 13 should be charged to the C ommonwealth, and therefore, he was not tried with in the timeframe specified by C ode § 19.2-243. We disagree. While appellant disputes that he acquiesced to a continuance of the December 5 trial date, his contention is be lied by the record. Although the telephone conference call on November 28 was not recorded, the court entered an order on Dec ember 8, continuing the case from December 5 to March 9 “[o]n mot ion of the defense for good caus e shown.” Appellant’s counsel signed the order “I ask for this.”- 11 - Despite the fact that appellant subsequently moved to advance the trial date and amend the continuance order to reflect hi s objection, he co nceded that he originally did not object to the continuance. Counsel stated, “Specifically, I didn’t object st renuously at all to Judge Melvin’s direction that the matter be continued and that the continuance be charged to the [d]efendant.” Appellant’s counsel also acknowl edged that he “took actions signing an order continuing the matter to March, and clearly tha t was without the [d]efendant’s knowledge and nor was the [d]efendant aware of the ramifi cations.” However, appellant’s lack of acquiescence in his counsel’s motion to continue is immaterial . “Defense coun sel may . . . r equest or concur in a continuance without the consent or presence of a defendant and a defendant will be bound by co unsel’s assent to the delay.” Shearer v. Commonw ealth, 9 Va. App . 394, 402, 388 S.E.2d 828, 832 (1990). Neither the facts of this case nor the law support appellant’s position that the Commonwealth should be charged f or the delay in bringing the matter to trial. Appellant filed a motion to suppress. When the court denied that motion on Decem ber 5, appellant’s counsel and the assistant Commonwealth’s attorney obtained a March 9 trial date from the docket clerk. There is no record of appellant objecting at the time the matter was contin ued from December 5 until March 9, and in fact, appellant signed an order requesting the continuan ce. For these reasons, we find that the court did not err in denying appellant’s motion to dismiss the indictment for a speedy trial violation.
CONCLUSION For the reasons set forth above , we affirm appellant’s convict ion for possession of a firearm as a convicted felon. Affirmed.