Kelly Daniel Bass v. Commonwealth of Virginia , 70 Va. App. 522 ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges Beales and Malveaux
Argued at Richmond, Virginia
PUBLISHED
KELLY DANIEL BASS
OPINION BY
v. Record No. 0769-18-2 JUDGE RANDOLPH A. BEALES
JULY 9, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
Donald C. Blessing, Judge
Jason Moore for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Appellant Kelly Daniel Bass was convicted of object sexual penetration under Code
§ 18.2-67.2(A)(1), forcible sodomy under Code § 18.2-67.1(A)(1), aggravated sexual battery
under Code § 18.2-67.3(A)(1), and indecent liberties with a child under Code § 18.2-370(A)(4).
On appeal, Bass contends that the trial court erred in denying his post-trial motion to dismiss
“based on a violation of his speedy trial rights”; failing to “delineate [its] ruling as to dates and
specific reasons for its findings regarding the speedy trial issues”; denying his post-trial motion
for a retrial “based on the malfunctioning telephone connecting appellant and counsel” during
the child’s closed-circuit television testimony; and denying his motion to suppress his
confession.
I. BACKGROUND
Procedural History and Facts Relevant to Speedy Trial
After waiving a preliminary hearing, on September 27, 2016, Bass was indicted for object
sexual penetration, two counts of forcible sodomy, aggravated sexual battery, indecent liberties
with a child, and production of child pornography, each involving Bass’s eight-year-old cousin,
D.B.1 Bass was held in continuous custody from the date of the indictment until his trial on July
11, 2017.
On the same day that the indictments were returned, Bass appeared in the Circuit Court of
Cumberland County to set a trial date. The Commonwealth’s Attorney informed the trial court
that she and Bass’s trial counsel, Roger Stough, had “agreed on a trial date of December 12,
2016.” The trial court entered an order which stated that Bass’s case would be “continued to
December 12, 2016” and that the continuance was on Bass’s motion.2
On November 1, 2016, the parties appeared before the trial court on the Commonwealth’s
motion for D.B. to testify at trial via closed-circuit television. The trial court granted the motion
after Bass, both individually and through his counsel, represented to the trial court that he did not
object to D.B. testifying in this manner.
On December 1, 2016, Stough, on Bass’s behalf, moved for a continuance of the
December 12, 2016 trial date because Bass had been admitted to Central State Hospital. Bass’s
motion to continue was heard on December 12, 2016. The trial court granted the motion and
entered an order continuing the case until January 24, 2017, for the case “to be set” for trial.
On January 24, 2017, Bass’s counsel represented to the trial court that the hospital had
extended Bass’s 30-day hold to up to 60 days. As a result of Bass’s continued stay at the
1
We use initials, instead of the child’s name, in an attempt to better protect her privacy.
2
The September 27, 2016 written order was a form order that states, “It is ordered that
this matter be continued to _____________ at _____ a.m./p.m.” The clerk wrote the date of
December 12, 2016, and the time of the hearing (9:30 a.m.) in the empty blanks. The clerk also
checked a box below this statement indicating that the case would be continued “for a bench
trial” and, below that, checked another box indicating that the matter had been continued on the
defendant’s motion. It is undisputed, however, that September 27, 2016, was the date when the
parties appeared to first set the case for trial, and the record shows that there had been no trial
date set and no continuances of the trial date at the time of this September 27, 2016 order.
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hospital, Bass’s counsel asked “for March 21st to be an evaluation date to see whether we can set
a trial date.” At the conclusion of the hearing, the trial court entered an order stating that the
matter would be continued to March 21, 2017, “for a bench trial.” The order also reflects that
the continuance was made on Bass’s motion.
The parties appeared before the trial court again on the scheduled March 21, 2017 date,
where Stough informed the trial court that Bass had been released from Central State Hospital
and that he no longer consented to the victim testifying by closed-circuit television. In addition,
Stough told the trial judge that Bass “now wants to object to a continuance to get his right to a
speedy trial started.” Stough stated, “[Bass] has agreed to continuances in the past, he wants to
object to that continuance today.” With the agreement of the parties, the trial court set a date to
hear motions, including Bass’s motion to vacate the order allowing D.B. to testify by
close-circuit television, for April 10, 2017. The trial court also set trial for July 11, 2017, after
counsel for both parties confirmed their availability for that date. Stough told the trial court,
“I’m good with that day.” However, he also stated, “Judge, on any order that is entered I need to
object to the continuance just to get my client’s rights to a speedy trial started.” The March 21,
2017 written order continuing the trial to July 11, 2017, reflects that Bass objected to the
continuance and that he was not waiving his right to speedy trial.
At the April 10, 2017 hearing on motions, Stough argued Bass’s motion to vacate the
order permitting the victim to testify by closed-circuit television, which the trial court denied.
Stough notified the trial court that he intended to file additional motions, and the trial court set
another motions date for May 23, 2017. At the conclusion of the April 10, 2017 hearing, Stough
informed the trial judge that the order needed to reflect that he objected to the continuance based
on speedy trial and that he did not want Bass “agreeing to a continuance order and potentially
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waiving a right to speedy trial.”3 That prompted the trial judge to ask Stough, “But you agreed to
the trial date?” and Stough responded, “I agreed to the trial date, but that is within the speedy
trial timeframe.” The trial judge then said, “I understand. So if we have to push the trial out we
can deal with it on whatever date.” The written order contains a notation by the trial judge
indicating that Bass objected to the continuance “to preserve speedy trial rights.”
Motion to Suppress
During a custodial interview with Deputy Sheriff Dennis Ownby of the Cumberland
County Sheriff’s Office on March 18, 2016, after being read his Miranda rights, Bass confessed
to sexually molesting D.B.
On May 1, 2017, Bass moved to suppress this confession, arguing that he had made an
unequivocal request for an attorney during the interview. The trial court heard the motion on
May 23, 2017. The trial judge listened to an audio recording of the confession which was
entered into evidence and made part of the record on appeal.
At the hearing on the motion, Stough argued that approximately eight and one-half
minutes into the interview, Bass made an unequivocal request for counsel when he said, “Is there
any way uh I could have um like a an attorney or something present or a lawyer or something
and um maybe a like a mental health professional?”4 On the audiotape, Detective Ownby
responded to Bass, stating, “I don’t have them here, if you want an attorney here, that’s fine but I
can already tell you they’re going to tell you don’t tell anything, but that’s up to you. It’s up to
you.” A few moments later, Bass asked, “How should I start?” Then, approximately twelve and
3
The order “continued” the case for the additional motions to be heard on May 23, 2017.
It made no change to the July 11, 2017 trial date.
4
According to well-established principles of appellate review, we view the facts,
including the audio recording, presented at the motion to suppress in the light most favorable to
the Commonwealth because it prevailed on the motion to suppress in the trial court. See Beasley
v. Commonwealth, 60 Va. App. 381, 389 (2012).
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one-half minutes into the interview, Bass stated, “What difference would it make if I um waited
for like a lawyer and like a mental health professional?” and Ownby responded that he was not
required to get Bass a mental health professional. He also stated, “If you want a lawyer, we can
get you a lawyer but I can already tell you that they won’t let you tell us what happened . . . .
But it’s up to you, I’m not going to deny you your rights.” Bass then proceeded to make
incriminating statements amounting to a confession of the indicted charges.
At the hearing, Stough indicated that he was only relying on Bass’s first statement as a
basis for his motion to suppress. After listening to the audio recording of the interview, the trial
court denied the motion to suppress, finding that Bass’s words were “ambiguous questions about
wanting a lawyer.”
D.B.’s Testimony By Closed-Circuit Television
At appellant’s bench trial on July 11, 2017, D.B. testified by closed-circuit television in
accordance with the trial court’s prior ruling. Before she began her testimony, Stough informed
the trial court that he had been told by a state police officer, who was running the closed-circuit
system, that if Bass were to call Stough during the testimony, the whole courtroom would be able
to hear their conversation. To address the problem, Stough proposed that if Bass needed to speak
with him, Bass should raise his hand to get the trial judge’s attention and then Stough could leave
the witness room and meet with Bass. The trial judge explained the situation to Bass directly,
informing him of the importance of his being able to speak with his counsel and explaining that
the current configuration of the phone system would prevent those conversations from being
confidential. Therefore, the trial judge proposed that, if Bass wanted to speak with Stough
during D.B.’s testimony, he should “simply pick up [the] phone and say I need to speak to you”
and then they could meet. Stough agreed with this plan, noting that it “sounds great.” D.B.’s
testimony proceeded in accordance with this plan.
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At the conclusion of the bench trial, the court found Bass guilty of forcible sodomy,
object sexual penetration, aggravated sexual battery, and indecent liberties with a minor,5 and
entered its sentencing order on January 11, 2018.
Post-Trial Motions
On January 26, 2018, the trial court took up various post-trial pro se motions filed by
Bass, including a motion dealing with an allegation of ineffective assistance of counsel. Stough
also moved that he be permitted to withdraw as counsel and that the sentencing order be
suspended to allow new counsel to review the case. The trial court granted both motions,
removing Stough as counsel and suspending the sentencing order until April 2, 2018.
On April 11, 2018, Jason Moore, who was appointed to replace Stough as Bass’s counsel,
proceeded with two motions on Bass’s behalf – a motion for retrial based on the victim’s closed
circuit testimony because “the video conferencing phone between Mr. Stough and Mr. Bass
failed to operate” and a motion alleging Bass’s constitutional and statutory speedy trial rights had
been violated. On the first motion, Moore argued that the malfunctioning system denied him a
“contemporaneous and private conduit allowed between Counsel and the Defendant while
Counsel is in the testimony room,” which Moore argued was required by Code § 18.2-67.9. The
trial judge denied the motion, concluding that the communication method between Stough and
Bass satisfied the contemporaneous requirement and finding that Stough did not object and “by
his conduct and suggestions, acceded, joined in.”
After hearing some argument from counsel for both parties on Bass’s speedy trial motion,
the trial judge requested that the attorneys review and prepare their own calculations and
reconvene on April 24, 2018. On April 23, 2018, the trial court entered an additional order
5
At trial, Bass prevailed on a motion to strike one count of forcible sodomy. The
Commonwealth did not pursue the pornography charge.
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further suspending the imposition of Bass’s sentence until it “ruled on and entered an Order [on
the speedy trial motion] or April 27, 2018, whichever occurs first in time.”
When the parties appeared again before the trial court on April 24, 2018, the attorneys
argued their positions on the speedy trial matter. After hearing argument, the trial court found
that Bass’s speedy trial rights were not violated. In his ruling, the trial judge noted that he had
reviewed the law and found that under the “speedy trial statute” a defendant’s failure to make a
claim for a speedy trial violation until after judgment would result in a waiver. He found that in
Bass’s case, Bass failed to make a written motion regarding speedy trial on or before the trial
date, resulting in a waiver. In addition, the trial judge stated that he found that the
Commonwealth’s “timeline and argument is more persuasive” and that, with respect to any
constitutional violation, Bass had suffered “no prejudice in this case.”
Following the trial court’s oral ruling from the bench, Moore requested clarification as to
whether the trial court was counting September 27, 2016 to December 12, 2016 against Bass in
the speedy trial calculation. The trial judge did not specify whether or not he was counting this
time against Bass. Moore continued to object, “asking for a specific ruling on the time periods.”
However, the trial court declined to further expound upon its ruling.
On April 24, 2018, the trial court entered an order denying Bass’s motion to dismiss the
charges for lack of a speedy trial and lifted the suspension of the sentencing order. This appeal
followed.
II. ANALYSIS
Speedy Trial
Bass contends that the trial court erred when it failed to grant his post-trial motion to
dismiss the indictments based on a violation of his constitutional and statutory right to a speedy
trial. Bass asserts that the time between September 27, 2016 and December 12, 2016, and again
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between March 21, 2017 and July 11, 2017, should be attributed to the Commonwealth and that
the only timeframe in which the statute was tolled was between December 12, 2016 and March
21, 2017, when Bass sought continuances due to his admission into Central State Hospital.
According to Bass’s argument, he was tried well outside the five-month statutory requirement set
out in Code § 19.2-243. The Commonwealth makes several arguments in response to Bass’s
contention, including that the trial court did not err in denying Bass’s post-trial motion because
the motion was untimely under Code § 19.2-266.2 and Rule 3A:9.
Code § 19.2-266.2 states, in relevant part:
A. Defense motions or objections seeking . . . (ii) dismissal of a
warrant, information, or indictment or any count or charge thereof
on the ground that: (a) the defendant would be deprived of a
speedy trial in violation of the provisions of the Sixth Amendment
to the Constitution of the United States, Article I, Section 8 of the
Constitution of Virginia, or § 19.2-243; or (b) the defendant would
be twice placed in jeopardy in violation of the provisions of the
Fifth Amendment to the Constitution of the United States or
Article I, Section 8 of the Constitution of Virginia . . . shall be
raised by motion or objection.
B. Such a motion or objection in a proceeding in circuit court shall
be raised in writing, before trial. The motions or objections shall
be filed and notice given to opposing counsel not later than seven
days before trial in circuit court or, if made under clause (ii) of
subsection A, at such time prior to trial in circuit court as the
grounds for the motion or objection shall arise, whichever occurs
last. . . . The circuit court may, however, for good cause shown
and in the interest of justice, permit the motions or objections to be
raised at a later time.
The plain language of Code § 19.2-266.2 requires defendants – absent good cause – to
make motions for dismissal of charges for constitutional and statutory speedy trial violations in
writing within the later of seven days before trial or as soon as the grounds for the motion arise
prior to trial. These requirements are not superfluous administrative hurdles. They “serve[ ]
legitimate state interests in protecting against surprise, harassment, and undue delay.” Arrington
v. Commonwealth, 53 Va. App. 635, 640 (2009) (quoting Magruder v. Commonwealth, 275 Va.
-8-
283, 300 (2008), vacated and remanded sub nom). See also Upchurch v. Commonwealth, 31
Va. App. 48, 53 (1999) (explaining that the time requirements of Code § 19.2-266.2 are
necessary to allow the Commonwealth to exercise its limited right to appeal).
In Williams v. Commonwealth, 57 Va. App. 750, 768 (2011), this Court held that a
defendant waived his double jeopardy objection when he failed to comply with Code
§ 19.2-266.2 by raising the objection in writing before trial or by proving good cause for its later
consideration. Code § 19.2-266.2 treats motions and objections for double jeopardy violations
similarly to motions and objections for speedy trial violations. Therefore, assuming no good
cause is shown, a defendant who fails to raise a written motion or objection seeking dismissal of
charges based on a violation of his speedy trial rights, waives that objection.
In this case, Bass did not move for dismissal of the charges against him based on the
violation of speedy trial until after his trial was completed and he had been found guilty.
Although the trial court listened to Bass’s post-trial motion, it did not find that Bass had proved
good cause for failing to bring the motion earlier. To the contrary, the trial judge affirmatively
stated that Bass waived his speedy trial objection by failing to raise it prior to trial. He stated, “I
think the failure to invoke the provisions of the statute until after final judgment is a waiver.”
Therefore, because Bass failed to timely file his motion (or prove good cause for such failure), he
waived his right to argue on appeal to this Court that his speedy trial right was violated.
Rule 3A:9 also prescribes timeliness requirements for motions and objections for speedy
trial violations. Rule 3A:9 states, in relevant part, as follows:
(b) The Motion Raising Defenses and Objections. – (1) Defenses
and Objections That Must Be Raised Before Trial. Defenses and
objections based on defects in the institution of the prosecution or
in the written charge upon which the accused is to be tried, other
than that it fails to show jurisdiction in the court or to charge an
offense, must be raised by motion made within the time prescribed
by paragraph (c) of this Rule. . . . Failure to present any such
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defense or objection as herein provided shall constitute a waiver
thereof. . . .
....
(c) Time of Filing Notice or Making Motion. – A motion referred
to in subparagraph (b)(1) shall be filed or made before a plea is
entered and, in a circuit court, at least 7 days before the day fixed
for trial, or, if the motion raises speedy trial or Double Jeopardy
grounds as specified in Code § 19.2-266.2A(ii), at such time prior
to trial as the grounds for the motion or objection shall arise,
whichever occurs last.
(Emphases added.)
Similar to Code § 19.2-266.2, Rule 3A:9 dictates that a motion that “raises speedy trial”
must be made “at least 7 days before the day fixed for trial, or . . . at such time prior to trial as the
grounds for the motion or objection shall arise, whichever occurs last.” Also similar to Code
§ 19.2-266.2, Rule 3A:9(d) permits the trial court to dispense with the waiver provisions of the
rule upon a showing of good cause.
“We have stated that ‘[t]he plain language of the Rule states that the requirements of
Rule 3A:9(b)(1) are mandatory, and “failure to raise such [defenses] properly is a waiver,” unless
“good cause” is shown.”’ Rambo v. Commonwealth, 51 Va. App. 418, 424 (2008) (quoting
Harris v. Commonwealth, 39 Va. App. 670 (2003) (en banc)). Although speedy trial is not
specifically referenced in subsection (b)(1) of Rule 3A:9, the language of subsection (c) indicates
that, except for permitting a motion for a violation of speedy trial to be filed later than seven
days before trial if the grounds for the motion have not arisen, speedy trial and double jeopardy
violations are also to be treated as waived if not timely brought. See Meyers v. Commonwealth,
No. 150962, at *7 (Va. Jan. 12, 2017) (“When a defendant objects to an indictment on ‘Double
Jeopardy grounds,’ he must file such objection by written motion before trial.”); Clay v.
Commonwealth, No. 0619-99-2, at *3 (Va. Ct. App. Sept. 5, 2000) (“Since appellant did not
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comply with the notice provisions of Rule 3A:9 and did not show ‘good cause,’ he has waived
the double jeopardy and Code § 19.2-294 defenses.”).
At oral argument before this Court, Bass’s counsel argued that Bass did make a pre-trial
objection to the speedy trial violation because, on the March 21, 2017 order, Bass had the trial
court note that he objected to the continuance on speedy trial grounds. The order itself states,
“SPEEDY Trial is NOT waived.”6 However, this written objection does not fulfill the
requirements of the statute or the rule because, when Bass made the motion, he was not seeking
“dismissal of. . . charge[s]” for which he was about to be tried. See Code § 19.2-266.2(A)(ii);
Rule 3A:9(c). The purpose of his written objection on March 21, 2017, was simply to ensure
that the time period between March 21, 2017, and his trial was not tolled for speedy trial
purposes.7 Therefore, because Bass did not seek dismissal of the charges against him with his
March 21, 2017 objection, he did not comply with the statute or rule.
6
The April 10, 2017 order also states that the “continuance” from that date was “objected
to by [defendant] to preserve speedy trial rights.”
7
Stough’s communications with the trial judge at the April 10, 2017 hearing make it
abundantly clear that Bass was not seeking dismissal of the charges against him at the time that
the March 21, 2017 or April 10, 2017 orders were entered. At the April 10, 2017 hearing,
Stough told the trial judge that he did not agree to the draft continuance order because the draft
order stated that the matter was “continued on motion of the defendant” and he did not want his
client “agreeing to a continuance order and potentially waiving a right to speedy trial.” That
statement prompted the judge, who recognized that the trial date had already been set to ask,
“But you agreed to the trial date?” Bass’s counsel responded, “I agreed to the trial date, but that
is within the speedy trial timeframe.” The trial judge then said, “I understand. So if we have to
push the trial out we can deal with it on whatever date.” Bass’s objection only alerted the
Commonwealth and the trial judge that he objected to those particular continuances to preserve
his objection in the event that the trial was continued beyond July 11, 2017.
In addition, Stough’s concession that July 11, 2017 was “within the speedy trial
timeframe” implicates the doctrine of approbate and reprobate and bars him from arguing on
appeal that July 11, 2017 fell outside of the speedy trial deadline. See Vay v. Commonwealth, 67
Va. App. 236, 263-64 (2017) (“The prohibition against approbation and reprobation forces a
litigant to elect a particular position, and confines a litigant to the position that she first
adopted.”) (quoting Matthews v. Matthews, 277 Va. 522, 528 (2009)).
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Trial Court’s Explanation for its Speedy Trial Ruling
Bass also argues that the trial court erred “in refusing to rule on appellant’s objection to
trial court’s failure to delineate trial court’s ruling as to dates and specific reasons for its findings
regarding the speedy trial issues.” He argues that the trial court’s refusal to rule on his objection
and clarify its reasoning for denying the speedy trial motion means, “the record lacks a coherent
ruling as to the breakdown of the speedy trial clock and the reasons for the court’s decision.”
“Absent a statutory mandate, such as that applicable in habeas corpus proceedings . . . a
trial court is not required to give findings of fact and conclusions of law.” Fitzgerald v.
Commonwealth, 223 Va. 615, 627 (1982). Here, the trial judge told Moore, Bass’s post-trial
counsel, that he would not give additional details for his ruling after he had already gone into
considerable explanation of his ruling from the bench. The trial court was certainly not required
to provide the litigants with a more detailed ruling than that already given in the eight and
one-half pages of transcript containing the trial court’s oral ruling in this case. Furthermore, the
trial judge did indeed provide several reasons for his decision, including his finding that Bass had
waived his speedy trial argument. We find no error by the trial court with regard to Bass’s
argument that the trial court did not provide an adequate ruling.
Malfunctioning Audio Equipment During Closed Circuit Testimony
Bass contends that the trial court erred by failing to grant his motion for “a new trial
based on the malfunctioning audio equipment during the closed-circuit testimony.” While Bass
agrees that D.B. was permitted to testify using close-circuit television pursuant to Code
§ 18.2-67.9, he contends that he was not “provided with a means of private, contemporaneous
communication with his attorney during the testimony” as required by Code § 18.2-67.9(D)
because of malfunctioning equipment. He also argues that this ruling “deprived appellant of his
right to counsel as allowed under the Sixth Amendment of the United States Constitution and
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violated his due process rights under the Fourteenth Amendment of the United States
Constitution.” However, we cannot reach the merits of Bass’s argument because he failed to
make a timely objection at trial, as required by Rule 5A:18.
“As a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection
in the trial court to preserve the issue on appeal. Not just any objection will do. It must be both
specific and timely—so that the trial judge would know the particular point being made in time to
do something about it.” Roadcap v. Commonwealth, 50 Va. App. 732, 741 (2007) (quoting
Thomas v. Commonwealth, 44 Va. App. 741, 750 (emphasis in original), adopted upon reh’g
en banc, 45 Va. App. 811 (2005)).
Here, when the trial judge learned that the phone system was broken, he proposed the
plan whereby Bass would “simply pick up this phone and say I need to speak to you” and if there
was any problem with that procedure, Bass could raise his hand to get the judge’s attention.
Stough, Bass’s trial counsel, did not object to the procedure and, in fact, actually told the trial
judge that the proposed plan “sounds great.” The trial judge also confirmed with Bass that Bass
understood the proposed procedure. Bass did not raise an objection until his post-trial “Motion
for Retrial” and, at the hearing on the motion, his post-trial counsel admitted that Stough had
agreed to the procedure. Therefore, because Bass did not make a timely objection to properly
preserve these issues and actually even agreed to the procedures used, Rule 5A:18 bars our
consideration of these arguments on appeal.8
Motion to Suppress
Bass argues that the trial court erred in denying his motion to suppress his confession
because he contends that he made a clear and unequivocal request for counsel when he made the
8
Bass does not ask this Court to consider his argument under Rule 5A:18’s ends of
justice exception, and this Court will not do so sua sponte. Widdifield v. Commonwealth, 43
Va. App. 559, 564 (2004) (en banc).
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following statement approximately eight minutes and thirty seconds into his interview with
Detective Ownby, prior to confessing to the crimes: “Is there any way uh I could have um like a
an attorney or something present or a lawyer or something and um maybe a like a mental health
professional?”
“The principle is now well-established that, pursuant to the Fifth Amendment of the
United States Constitution, law enforcement officers must inform a suspect in a custodial
interrogation of certain rights, including the right to remain silent and to have the assistance and
presence of legal counsel during the interrogation.” Stevens v. Commonwealth, 283 Va. 296,
302 (2012). “If a suspect waives his right to counsel after he has received Miranda warnings, the
police officers are free to interrogate him, but if the suspect requests counsel at any time during
the interrogation, the interrogation must cease until an attorney has been made available to the
suspect or the suspect reinitiates the interrogation.” Commonwealth v. Redmond, 264 Va. 321,
328 (2002). “The question whether a suspect actually invoked his right to counsel involves an
objective inquiry.” Commonwealth v. Hilliard, 270 Va. 42, 49 (2005). The demand must be
stated such that a “reasonable police officer under the circumstances would understand the
statement to be a request for counsel.” Id. “If, however, a suspect’s reference to an attorney is
either ambiguous or equivocal, such that a reasonable officer under the circumstances would
only have understood that the suspect might be invoking his right to counsel, the officer is not
required to stop questioning the suspect.” Id.
The question of “whether a suspect invoked his right to counsel presents a mixed
question of law and fact.” Id. This Court “must review the circuit court’s findings of historical
fact only for clear error, and . . . give due weight to inferences drawn from those factual
findings.” Redmond, 264 Va. at 327. Thus, under this standard of review, “the determination of
what [the defendant] actually said is a question of fact that we review only for clear error. . . .
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Whether those words are sufficient to invoke the right to counsel is a legal determination that we
review de novo.” Id. (alterations in original) (quoting United States v. Uribe-Galindo, 990 F.2d
522, 523 (10th Cir. 1993)).
The trial court found that Bass’s words were a question – not a statement. The trial judge
also found that Bass was “asking a question but he is never really saying I wanted a lawyer here.
He is asking is there any way I can have an attorney.” (Emphasis added.) Therefore, we defer
to the trial court’s finding of fact that Bass’s words were in the form of a question and we review
the words themselves, in context, to determine if they were legally sufficient to support the trial
court’s conclusion.
We agree with the trial court’s conclusion that Bass’s request was not a clear and
unequivocal request for counsel. Deferring to the trial court’s findings that Bass’s words were a
question rather than a statement and that Bass was seeking to determine if there was “any way”
he could have an attorney, Bass’s question was more akin to a clarification of his rights, rather
than a demand for an attorney. See Redmond, 264 Va. at 330 (holding defendant’s questions,
“Can I speak to my lawyer? I can’t even talk to [a] lawyer before I make any kinds of comments
or anything?” could “at best . . . .be construed as a desire on his part to obtain more information
about his Miranda rights” and was not an unequivocal invocation of his right to counsel). See
also Hilliard, 270 Va. at 51 (concluding defendant’s question, “Can I have someone else present
too, I mean just for my safety, like a lawyer like y’all just said?” after his Miranda rights had
been read “was merely an inquiry requesting a clarification or affirmation of the rights that had
just been explained to him”). In addition, Bass’s words indicate uncertainty about whom he
might want present in the room. He asked about “an attorney or something” and also asked
about potentially having a mental health professional present. (Emphasis added.) Reviewed
under the proper objective inquiry, a reasonable officer under the circumstances would only have
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understood that Bass might have been invoking his right to counsel and, therefore, was not
obligated to stop questioning him because Bass’s statement was not only a question but was also
hardly an unambiguous request for an attorney. 9 Consequently, the trial court did not err in
denying Bass’s motion to suppress.10
III. CONCLUSION
In short, Bass failed to comply with the requirements of both Code § 19.2-266.2 and Rule
3A:9. Under the statute and also under the Rule, Bass was required to file a written motion or
objection to have the charges dismissed for speedy trial reasons at least seven days prior to trial,
but he did not file his motion until the trial had finished and after he had already been found
guilty. Bass did not show good cause for his failure to comply with these requirements, and the
trial court concluded that Bass had waived his speedy trial right because he did not bring this
motion earlier. We agree and find no error with the trial court’s denial of that motion. We also
find no error with the alleged lack of specificity in the trial court’s ruling on the speedy trial
issue. While the trial court was not obligated to give a detailed ruling, the trial court’s ruling
expresses several reasons for denying Bass’s motion, and covers over eight and one-half pages in
9
On appeal, Bass does not specify which statement to the police was the unambiguous
request for counsel. Bass’s trial counsel stated that he was relying only on the statement made
by Bass at the eight and one-half minute mark of the audio recording to support his motion to
suppress. However, the trial judge’s findings indicate that he considered both the statement at
the eight and one-half minute mark and the statement at the twelve and one-half minute mark.
Assuming Bass preserved an argument regarding the second statement, that statement was
certainly not an unambiguous request for counsel because Bass only asked what difference it
would make if he had counsel present – not that he wanted counsel present.
10
The Commonwealth also contends that Bass waived this argument by introducing
“evidence of the same character” when Bass testified in his own defense. Our Supreme Court
has “held that ‘[t]he rule is that “where an accused unsuccessfully objects to evidence which he
considers improper and then on his own behalf introduces evidence of the same character, he
thereby waives his objection, and we cannot reverse for the alleged error.’”” Zektaw v.
Commonwealth, 278 Va. 127, 134 (2009) (quoting Hubbard v. Commonwealth, 243 Va. 1, 9
(1992)). Because we conclude that the trial court did not err in denying the motion to suppress,
we need not reach this argument.
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the transcript, including specifically noting Bass’s waiver of the argument for failure to bring the
motion prior to trial.
Pursuant to Rule 5A:18, we do not address Bass’s argument regarding the malfunctioning
phone system during D.B.’s testimony. Not only did Bass not make a timely objection to the
alternate procedure, Bass’s trial counsel also participated in deciding on the procedure and
actually affirmatively agreed to it, saying that the procedure proposed “sounds great.”
Lastly, the trial court did not err in denying Bass’s motion to suppress his confession
because a reasonable police officer would not have understood his statement to be an
unambiguous request for counsel. His words were a question – not a statement – and they only
clearly expressed his desire to further clarify his right to have certain other individuals present in
the room. Because his question was ambiguous and equivocal, the trial court did not err in
denying the motion to suppress.
For all of these reasons, we affirm Bass’s convictions.
Affirmed.
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