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. 

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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 

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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 

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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))). 

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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 

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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 

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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. 

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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 

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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. 

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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.

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 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 

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 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 

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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 

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