COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, McClanah an and Senior Judge Fitzpatrick Argued at Salem, Virginia

SHERMAN RICKY JONES MEMORANDUM OPINION ∗ BY v. Record No. 2390-06-3 JUDGE ELIZABETH A. McCLANAHAN FEBRUARY 19, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO Humes J. Franklin, Jr., Judge John I. Hill (Poindexter, Schorsch, Jones & Hill, P.C., on brief), for appellant. Craig W. Stallard, Assistant Attorn ey General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Sherman Ricky Jones appeals his convicti ons of murder and use of a firearm in commission of a felony alleging the violation of his right to a speedy trial under the United States and Virginia Constitutions and a violation of his Miranda rights. We affirm the judgment

of the trial court. I. Speedy Trial Sherman Jones was arrested and placed into custody on charges of first-degree murder

and use of a firearm in commission of a fel ony in December 2004. He waived his right to a preliminary hearing and was i ndicted on those charges on Ma rch 14, 2005. The Commonwealth determined it needed to try one of his codefenda nts, Aimee Jacques, first, to obtain his testimony

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - before trying Jones a nd another codefendant. 1 Jacques’ trial was scheduled for a date in June 2005, and Jones’ trial was scheduled, w ithout objection, for August 1 and 2, 2005. 2 Jacques’ June trial resulted in a hung ju ry. The court scheduled a new trial for Jacques on the dates

scheduled for Jones’ trial and continued Jones’ trial to September 27 and 28, 2005. 3 The

Commonwealth moved to nolle prosequi the indictments against Jones, and the motion was granted by the court on July 11, 2005. 4 The Commonwealth re-indic ted Jones that same day. Jacques’ August trial also resulted in a hung jury. As a result, the court continued the Jones trial to November 22 and 23, 2005. On September 9, 2005, Jones moved to dism iss his indictments pursuant to Code § 19.2-243, 5 the speedy trial statute. Jones argued the time period for bringing him to trial

should run from the date of the first indictme nt, March 14, and the failure to prosecute him

1 At the hearing on Jones’ motion to di smiss on speedy trial grounds, the prosecutor explained he assumed Jacques would assert his Fi fth Amendment privilege and refuse to testify at Jones’ trial if the charges against Jacques were unresolved.

2 Sherman Jones and Tony Jones were scheduled to be tried together.

3 The order granting the continuance reflects that the cases were continued on the joint motion of the Commonwealth and th e defendant. On appeal, Jones contends he did not have an opportunity to object to the motion.

4 The record reflects that the Commonwealth made this motion after codefendant Tony Jones filed a motion to dismiss on speedy tria l grounds and because, due to the hung jury, it could not try both Jacques and th e Jones defendants within the fi ve-month time frame set forth in the speedy trial statute.

5 Code § 19.2-243 provides, in pertinent part, that [w]here a district court has found th at there is probable cause to believe that an adult has committe d a felony, the accused, if he is held continuously in custody thereafter, shall be forever discharged from prosecution for such offense if no trial is commenced in the circuit court within five months. . . . If there was no preliminary hearing in the district court, or if such preliminary hearing was waived by the accused, the commencement of the running of the five . . . months . . . shall be from the date an indictment or presentment is found against the accused.- 3 - within the five-month time period following the date of his indict ment violated the speedy trial

statute. 6 The court denied the motion finding good cause for the motion to nolle prosequi the original indictments and no prosecutorial misc onduct, concluding that the five-month period ran from the date of the second indictment, July 11. In November, seven days before trial was to begin, Jones moved the court to dismiss his prosecution on the basis of his cons titutional right to a speedy trial. 7 Counsel, arguing on behalf of Jones, explained that he did not argue a violation of his constitutional right at the prior hearing because the issue was “not ripe yet when we firs t argued [a violation of the statutory right].” The court denied this motion and granted the Commonwealth’s motion to try all three codefendants together. 8 The court tried Jones and the other two codefendants on November 22 and 23, 2005, before a jury that convicted Jone s of murder and use of a firearm in the commission of a felony. Jones argues the Commonwealth’s 352-day delay in bringing him to trial violated his right to a speedy trial under the Sixth Amendment to the United States Constitution and Article I, Section 8 of the Virginia Constitution. 9 Jones’ argument, however, assumes we must take into consideration the time that elapsed under his original indictment.

6 Despite the fact that the dates for trial ha d previously been set for September, outside the five-month period, Jones did not demand a tria l but waited until after th at period had run to make his motion.

7 In September, Jones specifically declined to assert his constitutional right to a speedy trial and agreed to the November dates.

8 The court found good cause for the joint tr ials based on the Commonwealth’s argument that almost all of the forty witnesses subpoenaed would be the same for all three defendants and due to speedy trial concerns the Commonwealth had regarding Sherman Jones and Tony Jones.

9 The trial court’s order denying his motion to dismiss on the ground of the statutory right to speedy trial is not before us on appeal. Jones raised this issue in hi s petition for appeal but his appeal was denied on that issue.- 4 - In reviewing speedy trial guarantees 10 involving successive indictments for the same crime, the Supreme Court of Virginia has ruled that where there has been a nolle prosequi of the first indictment, a claim for violation of the cons titutional speedy trial right must relate only to the prosecution of the second indictment. Harris v. Commonwealth , 258 Va. 576, 520 S.E.2d 825 (1999). 11 Because the trial court granted the motion for nolle prosequi of the first indictment and found good cause to do so – a ruling not before us on appeal -- Jones’ “claim for a violation of his constitutional right to a sp eedy trial relates only to the prosecution of t

second indictment.” he

Id. at 586, 520 S.E.2d at 831. There were only four and a half months between Jones’ second indictment and trial. And Jones acknowledged to the trial court, there would be no constitutional speedy trial concern until the delay reached ten months. Indeed, as the Un ited States Supreme Court has said, the “lower [federal] courts have generally found postaccusation delay ‘presumptively prej udicial’ at least as it approaches one year.” Doggett v. United States , 505 U.S. 647, 652 n.1 (1992) (citations omitted); see also United States v. King , 909 F. Supp. 369, 372 (E.D. Va. 1995), aff’d , 110 F.3d 61 (4th Cir. 1997). Thus, the time between his sec ond indictment and his trial is well short of the

10 The speedy trial guarantees in the Unite d States and Virginia Constitutions are reviewed without distinction. See Holliday v. Commonwealth , 3 Va. App. 612, 615, 352 S.E.2d 362, 364 (1987); see also Fowlkes v. Commonwealth , 218 Va. 763, 764 n.2, 240 S.E.2d 662, 663 n.2 (1978). The Sixth Amendment to the United States Constitution provides, in pertinent part, that “in all criminal prosecutions, the accused sha ll enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. This right attaches upon a rrest or indictment, whichever occurs first. See United States v. MacDonald , 456 U.S. 1, 6-7 (1982). Article I, Section 8 of the Virginia Constitution grants the same right. In determinin g whether a defendant’s constitutional rights to a speedy trial have been violated, the United Stat es Supreme Court has id entified certain factors for a court to consider if the length of delay is “presumptively prejudicial.” Barker v. Wingo , 407 U.S. 514, 530 (1972). “Until there is some dela y which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. at 530.

11 The United States Supreme Court has rec ognized that “[o]nce ch arges are dismissed, the speedy trial guarantee is no longer applicable” in determin ing that the time period between dismissal of military charges and a subsequent civil indictment is not considered in determining a violation of speedy trial rights. MacDonald , 456 U.S. at 8. The issue of whether the military proceedings in that case triggered defendant ’s Sixth Amendment rights was not raised.- 5 - delay which courts have found presumptively pr ejudicial. Furthermore, Jones’ conviction

occurred within the limits of C ode § 19.2-243 and this Court has st ated that “[a] process which

results in a trial on the meri ts within the statutorily described time does not support a presumption of prejudice.” Sheard v. Commonwealth , 12 Va. App. 227, 231, 403 S.E.2d 178, 180 (1991). Until there is a delay that is presump tively prejudicial, there is no need to inquire into the other factors that go into the analysis of whether a violat ion of Jones’ c onstitutional right to a speedy trial has occurred. See supra , fn. 9. Therefore, the period between the second

indictment and Jones’ conviction was not a viola tion of his constitutional right to a speedy trial.

II. Miranda Rights After Jones was in custody and during an in terview with the investigating officer, Mike Wilhem, on December 6, 2005, Jones invoked his right to counsel. Subsequently he was taken to the magistrate’s office for booking. Officer Andrea Leavell, the processing officer for the Waynesboro Police Department, was charged with booking Leavell. Leavell allowed Jones to make some telephone calls and engaged in conversation with Jones regarding various subjects, including whether he had spoken to his mother, whether he knew certain individuals incarcerated in Buckingham, and how the facilities were th ere. During this conversation and while holding the warrants on which she was processing him, L eavell remarked that sh e would be scared to death to be charged with something like this and Jones responded, “I guess I was just in the wrong place at the wrong time.” Leavell did not follow-up and did not ask any questions about

Jones’ statement. Jones then asked her what ex actly he was charged with and how much time he could get. Prior to trial, Jones moved to suppr ess the statement he made regarding being in the wrong place at the wrong time arguing Leavell s ubjected him to a custodial interrogation in- 6 - violation of his Miranda rights. 12 The trial court denied the motion finding there was no interrogation and the statement was voluntary. Jones argues the trial court erred in denyi ng his motion to suppress because Officer Leavell subjected him to a custodial interrogati on after he invoked his right to counsel in

violation of his Miranda rights and his rights under the Fifth, Sixth, and Fourteenth

Amendments. 13 On appeal of a trial court’ s ruling on a motion to suppress, “the burden is upon [the appellant] to show that the ruling . . . constituted reversible error.” McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ) (citation and internal quotation marks omitted). We view the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to it all reasona ble inferences fairly deducible therefrom. See Commonwealth v. Spencer , 21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995). Although we give deference to the trial court’ s findings of fact, we review de novo whether the challenged evidence satisfied constitutional requirements. See Jackson v. Commonwealth , 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004). The Fifth Amendment provides that no “person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. C onst. amend V. And th e Fourteenth Amendment makes this privilege applicable to the states. See Malloy v. Hogan , 378 U.S. 1 (1964). In

Miranda v. Arizona , 384 U.S. 436 (1966), the United States Supreme Court formulated certain

12 In his motion to suppress, Jones attached a transcript of a recorded conversation between Jones and Leavell. He also references that transcript in his brief. However, it is clear from the record and confirmed at oral argument that the transcript was made of a conversation that took place on a later day and is not relevant.

13 Although appellant included a Sixth Amendmen t violation in his “ question presented,” he does not make any argument that his Sixth Amendment right to c ounsel was violated or cite to any authority to support a Sixth Amendment violati on. Therefore, we do not consider this issue on appeal. Rule 5A:20(c).- 7 - safeguards to protect the Fifth and Four teenth Amendments’ prohibition against self-incrimination. According to the Court, “w ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures

which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. One of the safeguard s formulated by the Court in

Miranda was to have counsel presen t during a custodial interrogati on. And when the accused has “expressed his desire to deal w ith the police only thr ough counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchan ges, or conversations with the police.” Edwards

v. Arizona , 451 U.S. 477, 484-85 (1981).

The Miranda safeguards only come into play when the accused is subjected to interrogation. Rhode Island v. Innis , 446 U.S. 291, 300-01 (1980). “Any statement given freely and voluntarily without any compelling influences is, of c ourse, admissible in evidence. The fundamental import of the privile ge while an individual is in custody is not whether he is allo wed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated . . . . Volunteered statements of any kind are not barred by the Fifth Amendment.”

Id. at 299-300 (quoting Miranda , 384 U.S. at 478) (emphasis in original). Interrogation, as conceptualized in Miranda , “must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300. It refers not only to ex press questioning, but also to any “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to e licit an incriminating response from the suspect.” Id. at 301. The police are not held accoun table for the unforeseeable results

of their words or actions. Id. at 301-02.- 8 - Applying these principles, we conclude the statement by Jones that he guessed he “was just in the wrong place at the wrong time” was no t made in response to an interrogation but was a voluntary statement. Certainly, Officer Leavell did not expressly questi on Jones. Her remark

that she would be scared to death to be faci ng the same charges was also not the “functional equivalent” of express questioning since it was no t “reasonably likely to elicit an incriminating response” from Jones. See id. at 301. In determining whether police conduct constitutes interrogation, we must keep in mi nd the purpose of the decisions in Miranda and Edwards in “preventing government officials from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment.” Arizona v. Mauro , 481 U.S. 520, 529-30 (1987). That purpo se was not implicated by the dialogue between Leavell and Jones in which Jones was not subject to any compelling influences by Leavell. Thus, the statement by Jones was voluntary and not the pr oduct of interrogation. Accordingly, the trial court did not err in denying the motion to s uppress and allowing the introduction of the testimony of Officer Leavell. For the foregoing reasons, the judgme nt of the trial court is affirmed.

Affirmed.