Robert Lee Cooke v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Clements and Beales
Argued at Richmond, Virginia
ROBERT LEE COOKE
MEMORANDUM OPINION * BY
v. Record No. 1821-06-2 JUDGE JEAN HARRISON CLEMENTS
APRIL 29, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
James A. Luke, Judge Designate
Charles L. Weber, Jr., for appellant.
Josephine F. Whalen, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Robert Lee Cooke (appellant) was convicted of possession of a firearm by a convicted
felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in denying
his motion to suppress on the ground that the motion was not timely filed. Finding no error, we
affirm the trial court’s judgment and appellant’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
In connection with events occurring on the night of October 24, 2004, appellant was
charged with possession of a firearm by a convicted felon. 1 On February 21, 2006, appellant
moved to suppress statements he made to Special Agent Jon Cromer of the Virginia State Police
Bureau of Criminal Investigation while he was hospitalized, claiming that he was not given his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). 2
On February 28, 2006, the date set for trial, appellant moved for a continuance
contending that he had not waived the requirement that his motion to suppress be heard three
days before trial in accordance with Code § 19.2-266.2. Although appellant acknowledged that
he did not specifically request a motions hearing at least three days prior to trial, he argued that
he had submitted a letter to the trial court asking for a phone conference “about scheduling
motions” and “discussing a continuance.” In response, the trial court stated that it had taken the
position that a phone conference could not take place “in a criminal matter” because “it would
have to be in court with the defendant present.”
Subsequently, the trial court denied the continuance and refused to hear the motion to
suppress. 3 In resolving the matter, the trial court stated, as follows:
This case was set in December. We had a lengthy hearing with a
reporter present in December, and I understand you are—and you
filed all these things, and maybe it’s unfortunate that I am not a
resident judge but you[]all knew that. You certainly knew if you
came up with last[]minute things, what you are fishing for, in the
1
Pertaining to the same events occurring on October 24, 2004, appellant was tried
separately for maliciously shooting a police dog, breaking and entering, and grand larceny.
These matters are not before us on appeal.
2
In accordance with Code § 19.2-266.2, appellant filed the suppression motion not later
than seven days before trial.
3
The trial court, however, heard and ultimately denied the motion to suppress as to the
separately tried charges on April 5, 2006.
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eyes of the Court, was a continuance. The motion is denied. We’ll
go forward.
I don’t consider it timely filed. I think what I just said—I
know you brought something in and left it in the office, filed in
that very technical sense, but you knew it had to fail when you
filed it.
The trial court convicted appellant of possession of a firearm by a convicted felon. This
appeal followed.
II. ANALYSIS
On appeal, appellant contends that “[n]either [Code § 19.2-266.2] nor the Rules of the
Supreme Court of Virginia require[d] [him] to file a written notice for a hearing” to ensure the
motion to suppress was heard three days before trial. Thus, he concludes, the trial court erred in
denying his motion as untimely. We disagree.
“We utilize an abuse of discretion standard when reviewing the trial judge’s denial of
appellant’s motion to consider the suppression motion after the statutory deadline.” Upchurch v.
Commonwealth, 31 Va. App. 48, 52, 521 S.E.2d 290, 292 (1999). “‘In reviewing an exercise of
discretion, we do not substitute our judgment for that of the trial court. Rather, we consider only
whether the record fairly supports the trial court’s action.’” Harris v. Commonwealth, 258 Va.
576, 583, 520 S.E.2d 825, 829 (1999) (quoting Beck v. Commonwealth, 253 Va. 373, 385, 484
S.E.2d 898, 906 (1997)).
Code § 19.2-266.2 provides, in relevant part, as follows:
Defense motions or objections seeking (i) suppression of
evidence on the grounds such evidence was obtained 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 . . . protecting rights against
self-incrimination . . . 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 . . . . A hearing on all
such motions or objections shall be held not later than three days
prior to trial in circuit court, unless such period is waived by the
accused, as set by the trial judge. The circuit court may, however,
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for good cause shown and in the interest of justice, permit the
motions or objections to be raised at a later time.
(Emphases added). Thus, under Code § 19.2-266.2, criminal defendants are required to “take
certain procedural steps in order to exercise or vindicate” their constitutional rights. Magruder v.
Commonwealth, 275 Va. 283, 300, 657 S.E.2d 113, 121 (2008). “Such requirements are not
unconstitutional but ‘serve[] legitimate state interests in protecting against surprise, harassment,
and undue delay.’” Id. (quoting Michigan v. Lucas, 500 U.S. 145, 152-53 (1991)). Furthermore,
“[t]he justification for the requirement of a pretrial suppression motion is readily apparent in
light of the Commonwealth’s limited right to appeal an adverse suppression ruling.” Upchurch,
31 Va. App. at 53, 521 S.E.2d at 292.
Here, on the scheduled trial date, appellant sought a continuance for the purpose of
having his suppression motion timely heard. In doing so, he disregarded the procedural
requirement set forth in Code § 19.2-266.2 that a hearing on a suppression motion occur at least
three days before trial. Indeed, it is axiomatic that appellant, as the proponent of the motion to
suppress, had the burden to pursue the matter by requesting a hearing to ensure the motion was
timely heard before the trial date. In failing to comply with Code § 19.2-266.2, appellant waived
the opportunity to pursue his constitutional claim. Accordingly, we cannot say the trial court
abused its discretion.
III. CONCLUSION
For these reasons, we affirm the trial court’s judgment and appellant’s conviction.
Affirmed.
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