                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Beales and Senior Judge Coleman
Argued at Chesapeake, Virginia


WILLY NAAR, JR.
                                                               MEMORANDUM OPINION * BY
v.     Record No. 2369-07-1                                    JUDGE RANDOLPH A. BEALES
                                                                      APRIL 14, 2009
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               James A. Cales, Jr., Judge

                 Anthony J. Nicolo (Ferrell, Sayer & Nicolo, P.C., on brief), for
                 appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Willy Naar, Jr., (appellant) was convicted of possession of a firearm by a convicted felon.

He appeals this conviction, arguing that the trial court erred when it prevented him from raising,

during his trial, an argument based on Miranda v. Arizona, 384 U.S. 436 (1966), to suppress a

statement that he made to the police. We find the trial court did not err here.

                                           BACKGROUND

       Appellant was charged with possession of cocaine, possession of a firearm while

possessing a controlled substance, and possession of a firearm by a convicted felon. Prior to

trial, appellant filed a written “Motion to Suppress,” asking generally that the court suppress all

of his statements to the police and all of the evidence seized by the police because of alleged

violations “of the Fourth, Fifth, or Sixth and Fourteenth Amendments.” The written motion did

not contain a more specific description of appellant’s arguments. At the hearing on this motion,

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appellant’s counsel described his motion as related to the “consent to search” given by appellant.

Appellant did not argue that the police violated the principles in Miranda during his suppression

hearing.

       At the hearing, Officer Ferrell testified that he and Officer Gilmore arrived at appellant’s

house at approximately 3:21 p.m. Appellant was sitting on the porch, and Azzaam Ashanti (a

codefendant) was working on a car parked at the house. The officers went up onto the porch and

began talking to appellant. As they stood there, the officers “smelled marijuana coming from the

house” through an open door. Officer Ferrell also saw someone moving around inside the house.

At this point, the officers told appellant that they were going to enter the house, do a protective

sweep, and then get a search warrant for the house. The police spent five to ten minutes

conducting the protective sweep, and then Officer Ferrell went to get a search warrant.

       While Officer Ferrell was gone, Officer Gilmore began talking to the men and obtained

permission to search without a warrant. Appellant signed a consent form, and Officer Ferrell

was informed that a warrant was no longer necessary. Officer Ferrell returned at “about 4:30,

4:35.” He then proceeded to “read the Miranda rights and placed everybody in handcuffs.”

Officer Ferrell did not ask appellant any questions after informing him of his Miranda rights, and

he did not know if another officer questioned appellant.

       At the conclusion of the suppression hearing, appellant argued for suppression of the

signed consent form. The trial court denied the motion, and the trial followed immediately. 1

       During appellant’s trial, Detective Deluca explained that he arrived at appellant’s home

“maybe [at] 4:00. I’m not sure of the exact time.” The Commonwealth then began to ask about

statements that appellant made to the detective. When the Commonwealth asked if appellant

“had been provided his Miranda warnings at the time you spoke to him,” the detective replied,

       1
        The parties and the trial court apparently agreed to hold the suppression hearing on the
same day as the trial. No party objected to this procedure.
                                                -2-
“As far as I was aware of, he was, yes.” At this point, appellant objected, arguing that the

evidence did not prove appellant was given his Miranda warnings prior to any questioning by the

detective.

       The trial court pointed out, “[T]here’s been no motion to suppress the statement,” and

ruled that Code § 19.2-266.2 precluded consideration of the issue. Appellant then asked the

court to apply the good cause exception in Code § 19.2-266.2. He claimed that the testimony of

Officer Ferrell and Detective Deluca was inconsistent with the discovery provided to him by the

Commonwealth. He contended that he did not raise a Miranda issue earlier because he relied on

the representations in that discovery.

       Appellant, however, did not provide the trial court with a copy of the discovery. Instead,

appellant described the discovery responses as follows:

               The investigative narrative which I have, which [the prosecutor]
               pointed out to me that he provided me in discovery, indicated that
               at approximately 16:40 Officer Ferrell read both the Defendants
               their rights from a personal card. A couple of pages after that there
               are notes by Detective Deluca. It has the same time. Actually it
               says military time, which is 16:40, the same thing. It says he
               responded and he spoke with my client.

                          *       *       *      *        *      *       *

               I mean I assumed, based on what I was given and the integrity of
               the officers as I know them, that it was going to flow, but I can’t
               anticipate a police officer’s testimony saying, you know, when I
               made these notes it was 16:40, but testifying today I can’t
               remember exactly what time it was.

       The trial court found that the good cause exception did not apply, and Detective Deluca

continued testifying. The detective explained that appellant told him that “there was a gun in the

back seat on the right side of the vehicle” that was parked in the driveway (a blue Infiniti), and

that the gun was unloaded. The police then “recovered that weapon” from the car.




                                                -3-
       At the conclusion of all the evidence, the trial court convicted appellant of possession of a

firearm by a convicted felon, but dismissed the other charges.

                                            ANALYSIS

       Appellant argues that he was caught by surprise when Detective Deluca’s testimony did

not coincide with the representations in the Commonwealth’s discovery responses. He claims

that the discovery materials indicated that the police advised appellant of his Miranda rights prior

to questioning him, but that the testimony at trial did not prove that appellant had been read his

Miranda rights prior to Detective Deluca’s questioning of him. He contends this inconsistency

constituted “good cause shown” 2 and, thus, the trial court should have waived the requirements

of Code § 19.2-266.2 that suppression motions, like the one here, be made and ruled upon prior

to trial. 3 We disagree and find the trial court did not err when it refused to apply the good cause

exception in Code § 19.2-266.2 to the circumstances here.

       Code § 19.2-266.2 requires that motions like the one here, asking the trial court to

suppress statements based on an alleged violation of a defendant’s “rights against

self-incrimination,” be made in writing. This code section also requires that such motions be

filed seven days before trial and requires that the hearing on such motions be held prior to the

trial. Code § 19.2-266.2(A)-(B). “The circuit court may, however, for good cause shown and in




       2
         We note that appellant does not address the phrase, “and in the interest of justice,” as
found in Code § 19.2-266.2(B), but argues only that the trial court should have found “good
cause” for his failure to raise the motion earlier. As the Commonwealth also does not address
this second prong of the exception, we need not and do not address it here.
       3
          Appellant does not argue that his written motion, which was timely filed and mentioned
the Fifth Amendment, preserved his Miranda argument such that the trial court was permitted to
address the issue under Code § 19.2-266.2, without consideration of good cause. Given that
appellant did not raise any argument regarding his Miranda rights during the suppression
hearing, we agree with appellant that his only avenue for raising this argument once the trial
began was to request that the court apply the exception to the requirements in Code § 19.2-266.2.
                                                -4-
the interest of justice, permit the motions or objections to be raised at a later time.” Code

§ 19.2-266.2(B).

               If the defendant does not exercise due diligence to discover
               relevant facts before trial and has not been misled by the
               Commonwealth or its witnesses or otherwise prevented by the
               Commonwealth from discovering relevant facts, ignorance of a
               witness’ testimony, especially a witness who reasonably could be
               expected to testify, does not constitute good cause for excusing the
               defendant from the requirements of Code § 19.2-266.2.

Upchurch v. Commonwealth, 31 Va. App. 48, 52, 521 S.E.2d 290, 292 (1999). “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.” Id. Given the good cause

exception has very strict requirements that a defendant must satisfy, and the standard of review

on appeal is very deferential to the trial court, appellant has a high hurdle to overcome in order to

succeed in this appeal.

       Here, appellant never presented to the trial court any of the discovery documents that he

claimed misled him about whether he was given his Miranda warnings before or after he made

the statement to the police about the gun in the car. Based on his representations at trial, those

documents indicated that Officer Ferrell read appellant his rights, but Detective Deluca asked

him questions. Nothing in appellant’s proffers indicates that the Commonwealth represented to

appellant that Detective Deluca had read the Miranda rights to appellant, that Deluca actually

knew whether or not appellant had been informed of those rights before Deluca began asking

appellant any questions, or even that Officer Ferrell informed appellant of his rights prior to

Detective Deluca’s questioning. According to appellant, the discovery responses, which are not

in the record, apparently told appellant that the officers each believed that they were talking to

appellant at 4:40 that afternoon.




                                                -5-
        The Commonwealth’s discovery responses did not misinform appellant. The failure to

argue this motion before trial happened because appellant apparently assumed after reading the

discovery responses that the Miranda rights were read to him prior to the questioning by

Detective Deluca, and because appellant apparently assumed that Officer Ferrell first read the

rights to the suspects at 4:40 p.m. and then Detective Deluca took the statement from appellant

during that same minute. However, the Commonwealth’s discovery, as proffered by appellant,

did not indicate the sequence of events that occurred at 4:40 p.m. Based on the proffered

representations in the discovery, appellant could have just as easily assumed that Detective

Deluca asked the questions first, and then Officer Ferrell “read the Miranda rights and placed

everybody in handcuffs.” The discovery documents, based on appellant’s representations of

them, did not explicitly or implicitly state that appellant was read his Miranda rights prior to

Detective Deluca’s questioning.

        Finally, appellant himself should have known whether he was read his Miranda rights

prior to making his statement to Detective Deluca, especially as Officer Ferrell handcuffed him

when he informed him of these rights. Given that his statement to Detective Deluca was

particularly incriminating – as it indicated that appellant knew where the gun was and that he

knew it was not loaded – one would expect that, in discussing the case with his counsel,

appellant would have informed his attorney about the sequence of events leading up to that

statement, regardless of the representations in the discovery. In addition, in reviewing the

discovery responses with his counsel, appellant should have informed his attorney that his

recollection of the events was inconsistent with the police reports and that he was not read his

Miranda rights prior to talking to Detective Deluca. “If the defendant does not exercise due

diligence to discover relevant facts before trial . . . ignorance of a witness’ testimony . . . does not




                                                 -6-
constitute good cause for excusing the defendant from the requirements of Code § 19.2-266.2.”

Upchurch, 31 Va. App. at 52, 521 S.E.2d at 292.

         Here, the Commonwealth’s discovery responses, as described to the trial court by

appellant’s counsel, did not necessarily mislead appellant. In addition, as appellant was the

person who either was, or was not, informed of his Miranda rights prior to making his statement,

he cannot claim ignorance of the fact that Detective Deluca was unsure about whether another

officer actually read appellant his Miranda rights. Appellant, as the person to whom the rights

were read and of whom the questions were asked, was in the best position to know whether to

raise this issue in a motion to suppress. In short, based on the circumstances noted above, we

agree with the trial court here that appellant did not establish that he had “good cause” for his

failure to argue, prior to the trial, a motion to suppress based on the detective’s alleged failure to

inform him of his Miranda rights prior to any interrogation. The trial court, consequently, did

not abuse its discretion in refusing to allow appellant to argue this motion during the middle of

his trial.

                                           CONCLUSION

         We find the trial court did not err in denying appellant’s request to apply the exception in

Code § 19.2-266.2. Therefore, we affirm appellant’s conviction for possession of a firearm by a

convicted felon.

                                                                                            Affirmed.




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