Mitchell v. Com.

• Decision Date: 31 August 1999
• Docket Number: Record No. 0857-98-2.
• Citation: 518 S.E.2d 330,30 Va. App. 520
• Parties: Timothy A. MITCHELL v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

518 S.E.2d 330

30 Va. App. 520

Timothy A. MITCHELL v. COMMONWEALTH of Virginia.

Record No. 0857-98-2.

Court of Appeals of Virginia, Richmond.

August 31, 1999.

Michael J. Brickhill (Michael J. Brickhill, P.C., on brief), Appomattox, for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN, ELDER and BUMGARDNER, JJ.

COLEMAN, Judge.

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. 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 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 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

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 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 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...