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COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Bumgardner Argued at Richmond, Virginia

TIMOTHY A. MITCHELL v. Record No. 0857-98-2 OPINION BY 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, On appeal, Mitchell contends the trial

Mitchell was convicted.

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 Finding no

was denied his statutory right to a speedy trial. error, we affirm. I. A. BACKGROUND 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. - 2 -

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." Cobb's tractor. Mitchell subsequently admitted stealing Burley He never stated that he wanted a lawyer and never Mitchell did most

stated that he did not want to talk to Jones. 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. court denied the motion, and Mitchell appealed. B. Speedy Trial

The 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 - 4 -

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 Over a year later, on November 27, 1996, police

continued.

arrested Mitchell on the capias. On January 23, 1997, the court set trial for May 9, 1997. 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 On

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

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 . . .

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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

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