COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elde r and Bumgardner Argued at Rich mond, Virginia

TIMOTHY A. MITCHELL OPINION BY v. Record No. 0857-98-2 JU DGE SAM W. COLEMAN III AUGUST 31, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY Richard S. Bl anton, 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 Mitche ll was indicted for grand larceny of a tractor. Four years later, on April 10, 1998, Mitchell was convicted. On appeal, Mitchell conten ds the trial court erred by denying his motion to suppress an incriminating statement alle gedly obtained in violation of hi s Fifth Amendment privilege against self-incri mination. Mitchell also contends he was denied his statutor y right to a speedy trial. Fi nding no error, we affirm.
I. BACKGROUND A. Confession In 1989, Burley Co bb’s farm tractor wa s stolen from his residence in Prin ce Edward Coun ty, Virginia.In 1993, Charlotte County Deputy Sher iff Howard Hobgood arrested Timothy Mitc hell’s girlfriend af ter findin g stolen property in her home during a search for Mitchell, a su spect in a Charlotte Coun ty burglary. Sometime later, Mitchell turned himself in to au thorities in Charlotte Co unty, and Depu ty Hobgood interviewed him in jail regarding the Charlotte Coun ty burglary. Before doing so, Hobgoo d 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 Ho bgood started to take notes, but he never requested a lawyer and never stated that he woul d not talk to Hobgood. The following mo rning, Investigator Do nald Lacks interviewed Mitchell. Lacks agai n read Mitchell his Miranda rights. Mitchell responded, "I ai n’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 girlfr iend. Mitchell never requested a lawyer and conversed gene rally with the investigat or, 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 ha d attempted to get a statement from Mitchell but Mitchell had said he did not wish to speak to him. Jones then confirmed with Mitc hell that Lack s had read the Miranda warnings to him an d that Mitchell unde rstood his rights.

- 2 -Jones told Mitchell that he wanted to give him an opportunity to tell his side of the st ory. Mitchell responde d, "there is nothing I can tell y’all that you don’t alread y know . . . yo u-all got me; you know what I did." Mitchell talked about a prior conv iction and prior incarceration and talked in gene ral about his hist ory of stealing from various people. Later, he complained to the sheriff about the charges brough t against his gi rlfriend and as ked the sheriff to drop them. Jones replied that he could not drop the charges but that if she were found innocent thro ugh their inve stigation, the charges would be dropped. Jones told Mitc hell that his girlfriend’s guilt or innocence would have to be resolved by a

court. Later, Mitchell aske d Jones "if he could do anything to help himself." Jones told him if he had information ab out property stolen in Charlott e County, "it woul d be taken into consideration. " Mitchell subsequently admitted stealing Burley Cobb’s tractor. He ne ver stated that he want ed a lawyer and never stated that he did not want to talk to Jones. Mitc hell did most of the talking while Jones listened . Jones test ified that although Mitchell was angry, he was very calm an d willing to cooperate. Before trial, Mitchell moved to suppress his co nfession that he stole the trac tor, contending the offi cers had obtained the

- 3 -confession in vi olation of his Fifth Amen dment rights. The trial court denied the motion, and Mitchell appealed. B. Speedy Trial Following Mitc hell's indictment on April 19, 19 94, he was admitted to bail and re leased 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 "wai ves his Speedy Trial rights and joins in this Motion for Co ntinuance fr eely and voluntarily." Th is order did not set a tr ial date, and the court had not previo usly 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 continui ng the case and for the fi rst time set a trial date of March 21, 1995. Th e November 7 order, wh ich Mitchell and his attorney both endors ed, "waives hi s Speedy Trial rights and [states that he] joins in this Motion for Co ntinuance fr eely and voluntarily." On March 21, 1995, when the judge inquir ed if the parties were ready to proceed, Mitchell’s attorney requested a continuance due to a miscommunicati on between the defend ant and the attorney. Noting that the case had been co ntinued several ti mes in the past and had been pending fo r almost two years, Mitchell's attorney stated, "[w]e certainly would waive our right to a sp eedy 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 th at Mitchell "waives his/her Speedy Trial rights and joins in this Moti on for Continua nce freely and voluntarily." Mitchell endorsed the order, "I ASK FOR THIS." Thereafter, the trial court, by agreement of co unsel, 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 ye ar later, on Novemb er 27, 1996, police arrested Mitchell on the capias. On January 23, 1997, the court set tr ial for May 9, 1997. On May 9, 1997, despite assurances that he would obtain private counsel and be ready fo r trial, Mitchell appeared before the court without counsel. On May 9, the cour t appointed counsel and Mitchell endorsed an order as "I AS K FOR THIS," continuing the case on his moti on until June 18, 1997. The order st ates that Mitchell "fully unders tands 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, hear ings, and waiver s occurred. Ultimately, Mi tchell was tried on April 10, 1998. On the morning of tr ial, Mitchell filed a motion to dismiss on the ground that hi s trial had not commenced within nine months of his indictment as required by Code § 19 .2-243. The motion alleged that between in dictment on Ap ril 19, 1994, an d Brickhill’s appointment as counse l on May 9, 1997, 396 days of delay attributable to the Commonweal th had elapsed. Mitchell makes no claim in this appeal that the de lay after May 9, 1997, until his trial on April 10, 19 98, violated his stat utory speedy trial right. The cour t 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 felo ny offense is not continuously held in custody, he or she is forever disc harged 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, 34 9-50, 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 ma y request or concur in a cont inuance and simu ltaneously waiv e his statutory speedy trial rights, the two are se parate and distinct. A continuance has th e effect of ex cluding the time for the delay from the period attr ibutable to th e Commonwealth . A waiver, however, foregoes the accused's right to assert the speedy trial

- 10 -statute as a bar to pr osecution notwit hstanding the ef fect of the

statute. See id. at 267, 437 S.E.2d at 419. A gene ral waiver bars the defendant fr om raising a statutor y speedy trial claim regarding any dela y accrued before the waiver is re voked, if at all. A limited waiver, by its terms, will limit or specify the period to whic h it applies. Although the three orders 3 entered prio r to the May 9, 1997 order arguably are ge neral waivers th at would rema in in force until revoked, for purpos es of this opinion we need only consider the scope of the waiver of the May 9, 19 97 order. We hold that the wa iver language of th e May 9, 1997 order operated as a gene ral waiver that barred Mitchell from making any statutory spee dy trial claim with regard to dela ys preceding the entry of that order and thereafter until revocation of the waiver. 4 That order, sign ed by defendan t and defendan t’s counsel, states that the defe ndant’s motion for a continua nce also constitutes a wa iver of his st atutory speedy trial rights. Without that language, defendant’s moti on would have merely been for a continuanc e 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 waiv ed his right to make a statutory sp eedy trial claim for the dela ys preceding the waiver and until such time as the waiver ceased to be effective. Accordingly, because Mitchell waived his right on Ma y 9, 1997 to claim a statutory sp eedy trial defense, the trial cour t did not err in denyin g Mitchell’s motion to dismiss in which he alleged the Common wealth exceeded the statutory spee dy trial period between Ap ril 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/ S EEN AND AGREED /s/ T. A. Mitchell

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