                                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.
                                           -2-
               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,
                                            -3-
               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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