                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Decker and O’Brien
UNPUBLISHED


              Argued at Norfolk, Virginia


              DEVIYON MARQUETTE NICHOLS
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0304-17-1                                    JUDGE MARY GRACE O’BRIEN
                                                                                   MARCH 20, 2018
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                             William S. Moore, Jr., Judge

                               W. McMillan Powers, Assistant Public Defender, for appellant.

                               David M. Uberman, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     A jury found Deviyon Marquette Nichols (“appellant”) guilty of possession of a firearm by

              a convicted felon, in violation of Code § 18.2-308.2. Appellant contends that the court erred in

              denying his motion to suppress statements he made to police, in failing to set his suppression motion

              on the day of trial, and in denying his motion to dismiss the indictment based on a speedy trial

              violation. Finding no error, we affirm.

                                                         BACKGROUND

                     On the afternoon of July 13, 2016, Crystal Crawford flagged down Officer Joseph Porter of

              the Portsmouth Police Department who was driving through her neighborhood. Crawford told

              Officer Porter that a man in her house refused to leave and “may have [her] gun.” While Officer

              Porter waited outside, Crawford confirmed that her gun was missing.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Officer Porter saw appellant leave Crawford’s home through a back door, carrying a laundry

basket of clothes. Appellant ran toward a parked car, and Officer Porter followed in his cruiser,

without activating his emergency equipment. Officer Porter pulled up to the car, where appellant

and Crawford were “yelling back and forth.” Appellant was telling Crawford, “You’re lying. I

don’t have your gun . . . It’s in the house.” Officer Porter asked appellant to step over to him and

provide his identification card; appellant complied. Officer Porter explained that Crawford reported

that appellant took her gun. He advised appellant, “Listen, nobody is in trouble. If you give me the

gun, that can be the end of it. Just give me the gun back.” Appellant responded, “Okay, I’ll give

you the gun.”

        Appellant told Officer Porter that the gun was inside the car parked next to them, and

Officer Porter subsequently recovered a 9mm handgun from the vehicle’s glove compartment. Two

other officers arrived at that point. One of them, Sergeant Kevin Johnakin, took appellant’s

identification card to check for any outstanding warrants while Officer Porter reviewed a police

database to ensure that the gun was not a stolen weapon. After the officers confirmed that neither

Nichols nor Crawford had any outstanding warrants and the gun was “legitimate,” Officer Porter

walked over to appellant to “cut him loose.” He told appellant that the “situation could have really

snowballed had you [driven] away with a stolen gun, but we were able to get it back.” Officer

Porter testified that he “was going to clear it as a disturbance, because [appellant] was returning the

property.”

        Sergeant Johnakin then told Officer Porter that appellant mentioned having a felony

conviction. Upon learning this information, Officer Porter handcuffed appellant, placed him in the

backseat of his cruiser, and advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966). Officer Porter told appellant, “Look, man, you need to be straight up with me; you need to

be honest.” Appellant responded, “All right. I took the gun, but I wasn’t trying to take it. I was

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really just trying to hide it. I was going to stash it somewhere or bring it back, but I saw you guys,

so I kept it.” Officer Porter charged appellant with possession of a firearm by a convicted felon.

        Officer Porter testified that, prior to making the arrest, his involvement with appellant lasted

approximately twenty minutes. He stated that during the encounter, he maintained a conversational

tone of voice and never touched appellant.

        Appellant remained in custody pending trial. Following a preliminary hearing on August

19, 2016, the grand jury indicted him on September 1, 2016. Trial was set for December 5, 2016.

        On November 23, 2016, appellant filed a motion to suppress his statements and the evidence

seized on the day of the incident. Counsel participated in a telephone conference with Judge

Kenneth Melvin on November 28. The telephone conference was not recorded, but the parties

agreed that during the conference, appellant asked to have his motion to suppress heard on

December 5, before proceeding with the trial on the same date. Judge Melvin denied the request,

set the suppression hearing for December 5, and told counsel that the trial would be continued on

appellant’s motion.

        On December 5, Judge William Moore heard and denied the suppression motion.

Following the ruling, counsel went to the docket clerk to obtain a trial date. Judge Moore entered an

order on December 8 containing the following language: “[O]n motion of [the] defense, for good

cause shown, it is [o]rdered that the trial of this case be continued from 12/5/16 to March 9, 2017.”

The order identified “good cause” as follows: “Defense counsel requested suppression to be heard

on date of jury trial. Judge Melvin denied [the] request.” Appellant’s counsel signed the order

below a line stating, “I ask for this.”

        Appellant filed a “Motion to Amend Continuance Order” and a “Motion to Advance Jury

Trial Date” on December 13, 2016. At a December 15 hearing, appellant’s counsel acknowledged

that he did not object to the language in the continuance order and stated, “I have made a number of

                                                  -3-
what I believe are errors . . . . Specifically, I didn’t object strenuously at all to Judge Melvin’s

direction that the matter be continued and that the continuance be charged to the [d]efendant.”

Appellant’s counsel further stated that he “took actions signing an order continuing the matter to

March, and clearly that was without the [d]efendant’s knowledge, nor was the [d]efendant aware of

the ramifications.” He “ask[ed] the [c]ourt to show for the record that the order entered [on

December 8] continuing the matter to March is over the [d]efense objection, strenuous objection, to

continuing the matter out.” The court stated “we’ll let this record reflect that the matter was

continued over the [d]efense objection, but will be held to run against the [d]efendant, because the

reason that the case had to be continued was one of the motions that the [d]efense had filed.”

        In requesting that the case be advanced from March 9, appellant noted that the speedy-trial

period would expire in January, but advised that he was available for trial on February 13. He

reiterated that he “would have to object to the continuance into February, because I believe

[appellant’s] speedy trial rights run in January.” Following the hearing, the court entered an order

that advanced the trial date from March 9 to February 13.1

        Appellant subsequently filed a motion to dismiss the indictment on January 27, 2017,

claiming a violation of his right to a speedy trial under Code § 19.2-243. The court denied the

motion.

                                             DISCUSSION

        Appellant asserts the following assignments of error:

                1. The trial court erred in denying [appellant’s] Motion to Suppress
                   [appellant’s] statements to Officer Porter because the statements
                   were made while [appellant] was in custody and he had not been
                   given his Miranda warnings in violation of [appellant’s] rights
                   under the Fifth and Fourteenth Amendments to the United States
                   Constitution.

        1
        The order incorrectly identified the Commonwealth as the movant but on the trial date of
February 13, the court entered a “Corrected Order of Amendment of Continuance Order Nunc Pro
Tunc” noting that “[c]ounsel for the [d]efendant moved for advancement of the jury trial.”
                                                 -4-
               2. The trial court erred in denying [appellant’s] request to waive the
                  three days between the suppression hearing and trial.

               3. The trial court erred in denying [appellant’s] Motion to Dismiss
                  Indictment CR16-1080 because [appellant] was not brought to
                  trial within five (5) months from the date probable cause was
                  found in the Portsmouth General District Court in violation of
                  § 19.2-243 of the Code of Virginia of 1950, as amended.

                                       A. Motion to Suppress

       When reviewing a court’s denial of a motion to suppress, we consider the evidence

introduced at the suppression hearing and at trial, and we view that evidence in the light most

favorable to the Commonwealth. Beasley v. Commonwealth, 60 Va. App. 381, 385 n.1, 728 S.E.2d

499, 501 n.1 (2012). In evaluating the court’s determination, “we are ‘bound by the trial court’s

findings of historical fact unless “plainly wrong,’” and we ‘give due weight to the inferences drawn

from those facts’ by the trial judge and law enforcement.” Salahuddin v. Commonwealth, 67

Va. App. 190, 202, 795 S.E.2d 472, 478 (2017) (quoting McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc)). However, we review de novo the court’s

application of defined legal standards to the particular facts of a case. Shears v. Commonwealth, 23

Va. App. 394, 398, 477 S.E.2d 309, 311 (1996).

       Appellant asserts that he was taken into custody “at the beginning of the encounter” with

Officer Porter and therefore, any statements that he made to Officer Porter or Sergeant Johnakin

were inadmissible. He contends that Officer Porter was required to advise him of his Miranda rights

before asking any questions.

       The Fifth Amendment to the United States Constitution guarantees that “[n]o person . . .

shall be compelled in any criminal case to be a witness against himself.” In Miranda, the United

States Supreme Court applied this constitutional right against self-incrimination to individuals who,

while in custody, were subjected to police interrogation. Miranda, 384 U.S. at 478-79.



                                                 -5-
                  Under Miranda, before a suspect in police custody may be
                  questioned by law enforcement officers, the suspect must be warned
                  that he has the right to remain silent, that any statement he makes
                  may be used as evidence against him, and that he has a right to have
                  an attorney, either retained or appointed, present to assist him.

Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005) (citing Miranda, 384 U.S. at

444). Statements obtained during a custodial interrogation without Miranda warnings “generally

will be subject to exclusion for most proof purposes in a criminal trial.” Anderson v.

Commonwealth, 279 Va. 85, 90-91, 688 S.E.2d 605, 607 (2010) (quoting Dixon, 270 Va. at 39, 613

S.E.2d at 400).

        However, “‘Miranda warnings’ are required only when a suspect is both in custody and

subjected to interrogation.” Watts v. Commonwealth, 38 Va. App. 206, 214, 562 S.E.2d 699, 703

(2002). The United States Supreme Court has defined custody as a “‘formal arrest or restraint on

freedom of movement’ of the degree associated with formal arrest.” Harris v. Commonwealth, 27

Va. App. 554, 564, 500 S.E.2d 257, 262 (1998) (quoting California v. Beheler, 463 U.S. 1121, 1125

(1983)). Circumstances that factor into a determination of whether a suspect is “in custody”

include:

                  (1) the manner in which the individual is summoned by the police,
                  (2) the familiarity or neutrality of the surroundings, (3) the number of
                  officers present, (4) the degree of physical restraint, (5) the duration
                  and character of the interrogation, and (6) the extent to which the
                  officers’ beliefs concerning the potential culpability of the individual
                  being questioned were manifested to the individual.

Id. at 565, 500 S.E.2d at 262. “No single factor is dispositive of the issue.” Id. at 566, 500 S.E.2d at

262. See also Oregon v. Mathiason, 429 U.S. 492, 494-96 (1977) (per curiam) (holding that a

defendant, told he was a burglary suspect, was not in custody when he gave statements at a police

station in a room with a closed door).

        Miranda warnings also are not mandated when a person is questioned during a routine

traffic stop or investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). “[I]f there are
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articulable facts supporting a reasonable suspicion that a person has committed a criminal offense,

that person may be stopped in order to identify him, to question him briefly, or to detain him briefly,

while attempting to obtain additional information.” Hayes v. Florida, 470 U.S. 811, 816 (1985)

(emphasis added). Additionally, Miranda warnings are not required in “general questioning of

citizens in the fact-finding process.” Pruett v. Commonwealth, 232 Va. 266, 271, 351 S.E.2d 1, 4

(1986) (quoting Miranda, 384 U.S. at 477).

        Here, appellant’s contention that Officer Porter was required to advise him of his Miranda

warnings immediately upon encountering appellant and acquiring his identification card is without

merit. The circumstances of this case demonstrate that appellant was not in custody at that time.

Officer Porter was alone when he initially approached appellant and made a point of telling

appellant “nobody is in trouble.” He did not restrain appellant or draw his firearm. Officer Porter

testified that he spoke with appellant in a calm, conversational manner and the entire encounter

lasted about twenty minutes, a relatively short duration. The encounter occurred in daylight, in a

residential neighborhood, near appellant’s former girlfriend’s residence. Officer Porter testified that

he was attempting to locate Crawford’s gun, to return it to her. His questioning of appellant was in

furtherance of that goal. Because there was no restraint on appellant’s freedom of movement to the

degree associated with formal arrest, appellant was not in custody for purposes of Miranda when he

made his initial statements to Officer Porter. See Harris, 27 Va. App. at 565, 500 S.E.2d at 262

(quoting Beheler, 463 U.S. at 1125).

        Any detention of appellant was incidental to the officer’s investigation. He was attempting

to diffuse the situation and return the weapon to its rightful owner. It was not until Officer Porter

learned that appellant was a convicted felon that he arrested appellant and placed him in custody.

At that time, he advised appellant of his Miranda warnings, and appellant confessed that he took the

gun from Crawford’s house so that he could “stash” it somewhere. Because Officer Porter was not

                                                  -7-
required to issue the Miranda warnings before inquiring about the location of the gun, the court did

not err in denying appellant’s motion to suppress.

            B. Request to Waive the Three Days Between Suppression Motion and Trial

        Appellant contends that he was entitled to have both his suppression motion and trial heard

on December 5, 2016. Code § 19.2-266.2 addresses the timing of certain defense motions,

including a motion to suppress evidence. The statute requires that defendants raise these motions in

writing with “notice given to opposing counsel not later than seven days before trial in circuit

court.” Code § 19.2-266.2(B). Further, “[a] hearing on all such motions 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.” Id.

        In construing statutory language, we conduct a de novo review. Cartagena v.

Commonwealth, 68 Va. App. 202, 207, 807 S.E.2d 223, 226 (2017). “The primary objective of

statutory construction is to determine legislative intent.” Phelps v. Commonwealth, 275 Va. 139,

142, 654 S.E.2d 926, 927 (2008). An appellate court interprets a statute “with reference to its

subject matter, the object sought to be attained, and the legislative purpose in enacting it.” Esteban

v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003).

        Code § 19.2-266.2 requires criminal defendants to follow certain procedures to assert their

constitutional rights. See Arrington v. Commonwealth, 53 Va. App. 635, 639-41, 674 S.E.2d 554,

556 (2009). For example, a defendant may not make a mid-trial motion to suppress or otherwise

assert a constitutional violation without abiding by the statute’s requirements for writing and filing a

motion before trial. See, e.g., Upchurch v. Commonwealth, 31 Va. App. 48, 53, 521 S.E.2d 290,

292 (1999) (holding that a defendant may not contest probable cause for arrest during trial).

        The legislative purpose of Code § 19.2-266.2(B) is not merely to enable a defendant to

assert constitutional rights. The statute also serves “legitimate state interests in protecting against

                                                  -8-
surprise, harassment, and undue delay.” Arrington, 53 Va. App. at 640, 674 S.E.2d at 556 (quoting

Michigan v. Lucas, 500 U.S. 145, 152-53 (1991)). Additionally, the procedural requirement that a

motion to suppress be heard not later than three days before trial allows the Commonwealth to

exercise its statutory right to an interlocutory appeal of an adverse decision by the court pursuant to

Code § 19.2-398. See Upchurch, 31 Va. App. at 53, 521 S.E.2d at 292 (“The 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.”).

        Appellant contends that the language of Code § 19.2-266.2(B) grants him the unilateral

authority to schedule the suppression motion on the day of trial. He is mistaken. In Virginia, “[t]he

conduct of the trial is committed to the discretion of the trial court.” Watkins v. Commonwealth,

229 Va. 469, 484, 331 S.E.2d 422, 433 (1985). Code § 19.2-266.2(B) not only requires suppression

hearings to take place three days before trial, but also states that the hearing is to be “set by the trial

judge.” Although a defendant may waive the three-day period under Code § 19.2-266.2(B), the

ultimate authority for setting the pre-trial hearing rests with the trial judge. Nothing in the statute

grants a defendant the right to have a suppression hearing take place on the same day as the trial.

Therefore, the court did not err in denying appellant’s request to have the matters both heard on the

same day.

                                             C. Speedy Trial

        When considering a statutory speedy trial claim, we “give deference to the trial court’s

findings of fact, but review the trial court’s ‘statutory interpretations and legal conclusions de

novo.’” Brown v. Commonwealth, 57 Va. App. 381, 390, 702 S.E.2d 582, 586 (2010) (quoting

Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). The Commonwealth

bears the burden of demonstrating that a delay in commencing trial is excused under Code




                                                    -9-
§ 19.2-243. Wallace v. Commonwealth, 65 Va. App. 80, 88, 774 S.E.2d 482, 486 (2015), aff’d, 292

Va. 1, 798 S.E.2d 595 (2016).

        Code § 19.2-243 provides that an accused who is continuously in custody must be tried for a

felony offense within five months from the date of the preliminary hearing in district court.

However, the statute also provides certain excusable reasons for the Commonwealth’s “failure to

try” the accused within the statutory period. The speedy trial period is tolled when delay is caused:

                [b]y continuance granted on the motion of the accused or his counsel,
                or by concurrence of the accused or his counsel in such a motion by
                the attorney for the Commonwealth, or by the failure of the accused
                or his counsel to make a timely objection to such a motion by the
                attorney for the Commonwealth.

Code § 19.2-243(4). Delays attributable to a defendant will not be counted in determining whether

the Commonwealth complied with the statutory speedy trial mandate. O’Dell v. Commonwealth,

234 Va. 672, 681, 364 S.E.2d 491, 496 (1988).

        Appellant’s preliminary hearing concluded on August 19, 2016, and the five-month speedy

trial requirement began to run the following day. See Wallace, 65 Va. App. at 89, 774 S.E.2d at

486. Barring any delay attributable to appellant, the Commonwealth was required to bring the case

to trial by January 19, 2017. Appellant contends that the seventy days between the December 5

motion to suppress and the trial date of February 13 should be charged to the Commonwealth, and

therefore, he was not tried within the timeframe specified by Code § 19.2-243.

        We disagree. While appellant disputes that he acquiesced to a continuance of the December

5 trial date, his contention is belied by the record. Although the telephone conference call on

November 28 was not recorded, the court entered an order on December 8, continuing the case from

December 5 to March 9 “[o]n motion of the defense for good cause shown.” Appellant’s counsel

signed the order “I ask for this.”




                                                - 10 -
       Despite the fact that appellant subsequently moved to advance the trial date and amend the

continuance order to reflect his objection, he conceded that he originally did not object to the

continuance. Counsel stated, “Specifically, I didn’t object strenuously at all to Judge Melvin’s

direction that the matter be continued and that the continuance be charged to the [d]efendant.”

       Appellant’s counsel also acknowledged that he “took actions signing an order continuing the

matter to March, and clearly that was without the [d]efendant’s knowledge and nor was the

[d]efendant aware of the ramifications.” However, appellant’s lack of acquiescence in his counsel’s

motion to continue is immaterial. “Defense counsel may . . . request or concur in a continuance

without the consent or presence of a defendant and a defendant will be bound by counsel’s assent to

the delay.” Shearer v. Commonwealth, 9 Va. App. 394, 402, 388 S.E.2d 828, 832 (1990).

       Neither the facts of this case nor the law support appellant’s position that the

Commonwealth should be charged for the delay in bringing the matter to trial. Appellant filed a

motion to suppress. When the court denied that motion on December 5, appellant’s counsel and the

assistant Commonwealth’s attorney obtained a March 9 trial date from the docket clerk. There is no

record of appellant objecting at the time the matter was continued from December 5 until March 9,

and in fact, appellant signed an order requesting the continuance. For these reasons, we find that the

court did not err in denying appellant’s motion to dismiss the indictment for a speedy trial violation.

                                           CONCLUSION

       For the reasons set forth above, we affirm appellant’s conviction for possession of a firearm

as a convicted felon.

                                                                                             Affirmed.




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