                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, McClanahan and Senior Judge Fitzpatrick
Argued at Salem, Virginia


SHERMAN RICKY JONES
                                                           MEMORANDUM OPINION ∗ BY
v.      Record No. 2390-06-3                            JUDGE ELIZABETH A. McCLANAHAN
                                                               FEBRUARY 19, 2008
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF WAYNESBORO
                              Humes J. Franklin, Jr., Judge

                  John I. Hill (Poindexter, Schorsch, Jones & Hill, P.C., on brief),
                  for appellant.

                  Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        Sherman Ricky Jones appeals his convictions of murder and use of a firearm in

commission of a felony alleging the violation of his right to a speedy trial under the United

States and Virginia Constitutions and a violation of his Miranda rights. We affirm the judgment

of the trial court.

                                            I. Speedy Trial

        Sherman Jones was arrested and placed into custody on charges of first-degree murder

and use of a firearm in commission of a felony in December 2004. He waived his right to a

preliminary hearing and was indicted on those charges on March 14, 2005. The Commonwealth

determined it needed to try one of his codefendants, Aimee Jacques, first, to obtain his testimony




        ∗
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
before trying Jones and another codefendant. 1 Jacques’ trial was scheduled for a date in June

2005, and Jones’ trial was scheduled, without objection, for August 1 and 2, 2005. 2 Jacques’

June trial resulted in a hung jury. The court scheduled a new trial for Jacques on the dates

scheduled for Jones’ trial and continued Jones’ trial to September 27 and 28, 2005. 3 The

Commonwealth moved to nolle prosequi the indictments against Jones, and the motion was

granted by the court on July 11, 2005. 4 The Commonwealth re-indicted Jones that same day.

Jacques’ August trial also resulted in a hung jury. As a result, the court continued the Jones trial

to November 22 and 23, 2005.

       On September 9, 2005, Jones moved to dismiss his indictments pursuant to Code

§ 19.2-243, 5 the speedy trial statute. Jones argued the time period for bringing him to trial

should run from the date of the first indictment, March 14, and the failure to prosecute him
       1
         At the hearing on Jones’ motion to dismiss on speedy trial grounds, the prosecutor
explained he assumed Jacques would assert his Fifth Amendment privilege and refuse to testify
at Jones’ trial if the charges against Jacques were unresolved.
       2
           Sherman Jones and Tony Jones were scheduled to be tried together.
       3
        The order granting the continuance reflects that the cases were continued on the joint
motion of the Commonwealth and the defendant. On appeal, Jones contends he did not have an
opportunity to object to the motion.
       4
         The record reflects that the Commonwealth made this motion after codefendant Tony
Jones filed a motion to dismiss on speedy trial grounds and because, due to the hung jury, it
could not try both Jacques and the Jones defendants within the five-month time frame set forth in
the speedy trial statute.
       5
           Code § 19.2-243 provides, in pertinent part, that

                 [w]here a district court has found that there is probable cause to
                 believe that an adult has committed a felony, the accused, if he is
                 held continuously in custody thereafter, shall be forever discharged
                 from prosecution for such offense if no trial is commenced in the
                 circuit court within five months. . . . If there was no preliminary
                 hearing in the district court, or if such preliminary hearing was
                 waived by the accused, the commencement of the running of the
                 five . . . months . . . shall be from the date an indictment or
                 presentment is found against the accused.

                                                 -2-
within the five-month time period following the date of his indictment violated the speedy trial

statute. 6 The court denied the motion finding good cause for the motion to nolle prosequi the

original indictments and no prosecutorial misconduct, concluding that the five-month period ran

from the date of the second indictment, July 11.

       In November, seven days before trial was to begin, Jones moved the court to dismiss his

prosecution on the basis of his constitutional right to a speedy trial. 7 Counsel, arguing on behalf

of Jones, explained that he did not argue a violation of his constitutional right at the prior hearing

because the issue was “not ripe yet when we first argued [a violation of the statutory right].”

The court denied this motion and granted the Commonwealth’s motion to try all three

codefendants together. 8 The court tried Jones and the other two codefendants on November 22

and 23, 2005, before a jury that convicted Jones of murder and use of a firearm in the

commission of a felony.

       Jones argues the Commonwealth’s 352-day delay in bringing him to trial violated his

right to a speedy trial under the Sixth Amendment to the United States Constitution and Article I,

Section 8 of the Virginia Constitution. 9 Jones’ argument, however, assumes we must take into

consideration the time that elapsed under his original indictment.


       6
         Despite the fact that the dates for trial had previously been set for September, outside
the five-month period, Jones did not demand a trial but waited until after that period had run to
make his motion.
       7
          In September, Jones specifically declined to assert his constitutional right to a speedy
trial and agreed to the November dates.
       8
         The court found good cause for the joint trials based on the Commonwealth’s argument
that almost all of the forty witnesses subpoenaed would be the same for all three defendants and
due to speedy trial concerns the Commonwealth had regarding Sherman Jones and Tony Jones.
       9
         The trial court’s order denying his motion to dismiss on the ground of the statutory right
to speedy trial is not before us on appeal. Jones raised this issue in his petition for appeal but his
appeal was denied on that issue.

                                                -3-
       In reviewing speedy trial guarantees 10 involving successive indictments for the same

crime, the Supreme Court of Virginia has ruled that where there has been a nolle prosequi of the

first indictment, a claim for violation of the constitutional speedy trial right must relate only to

the prosecution of the second indictment. Harris v. Commonwealth, 258 Va. 576, 520 S.E.2d

825 (1999). 11 Because the trial court granted the motion for nolle prosequi of the first

indictment and found good cause to do so – a ruling not before us on appeal -- Jones’ “claim for

a violation of his constitutional right to a speedy trial relates only to the prosecution of the

second indictment.” Id. at 586, 520 S.E.2d at 831.

       There were only four and a half months between Jones’ second indictment and trial. And

Jones acknowledged to the trial court, there would be no constitutional speedy trial concern until

the delay reached ten months. Indeed, as the United States Supreme Court has said, the “lower

[federal] courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as

it approaches one year.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992) (citations

omitted); see also United States v. King, 909 F. Supp. 369, 372 (E.D. Va. 1995), aff’d, 110 F.3d

61 (4th Cir. 1997). Thus, the time between his second indictment and his trial is well short of the

       10
           The speedy trial guarantees in the United States and Virginia Constitutions are
reviewed without distinction. See Holliday v. Commonwealth, 3 Va. App. 612, 615, 352 S.E.2d
362, 364 (1987); see also Fowlkes v. Commonwealth, 218 Va. 763, 764 n.2, 240 S.E.2d 662, 663
n.2 (1978). The Sixth Amendment to the United States Constitution provides, in pertinent part,
that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
U.S. Const. amend. VI. This right attaches upon arrest or indictment, whichever occurs first.
See United States v. MacDonald, 456 U.S. 1, 6-7 (1982). Article I, Section 8 of the Virginia
Constitution grants the same right. In determining whether a defendant’s constitutional rights to
a speedy trial have been violated, the United States Supreme Court has identified certain factors
for a court to consider if the length of delay is “presumptively prejudicial.” Barker v. Wingo,
407 U.S. 514, 530 (1972). “Until there is some delay which is presumptively prejudicial, there is
no necessity for inquiry into the other factors that go into the balance.” Id. at 530.
       11
          The United States Supreme Court has recognized that “[o]nce charges are dismissed,
the speedy trial guarantee is no longer applicable” in determining that the time period between
dismissal of military charges and a subsequent civil indictment is not considered in determining a
violation of speedy trial rights. MacDonald, 456 U.S. at 8. The issue of whether the military
proceedings in that case triggered defendant’s Sixth Amendment rights was not raised.
                                                -4-
delay which courts have found presumptively prejudicial. Furthermore, Jones’ conviction

occurred within the limits of Code § 19.2-243 and this Court has stated that “[a] process which

results in a trial on the merits within the statutorily described time does not support a

presumption of prejudice.” Sheard v. Commonwealth, 12 Va. App. 227, 231, 403 S.E.2d 178,

180 (1991). Until there is a delay that is presumptively prejudicial, there is no need to inquire

into the other factors that go into the analysis of whether a violation of Jones’ constitutional right

to a speedy trial has occurred. See supra, fn. 9. Therefore, the period between the second

indictment and Jones’ conviction was not a violation of his constitutional right to a speedy trial.

                                         II. Miranda Rights

       After Jones was in custody and during an interview with the investigating officer, Mike

Wilhem, on December 6, 2005, Jones invoked his right to counsel. Subsequently he was taken to

the magistrate’s office for booking. Officer Andrea Leavell, the processing officer for the

Waynesboro Police Department, was charged with booking Leavell. Leavell allowed Jones to

make some telephone calls and engaged in conversation with Jones regarding various subjects,

including whether he had spoken to his mother, whether he knew certain individuals incarcerated

in Buckingham, and how the facilities were there. During this conversation and while holding

the warrants on which she was processing him, Leavell remarked that she would be scared to

death to be charged with something like this and Jones responded, “I guess I was just in the

wrong place at the wrong time.” Leavell did not follow-up and did not ask any questions about

Jones’ statement. Jones then asked her what exactly he was charged with and how much time he

could get. Prior to trial, Jones moved to suppress the statement he made regarding being in the

wrong place at the wrong time arguing Leavell subjected him to a custodial interrogation in




                                                 -5-
violation of his Miranda rights. 12 The trial court denied the motion finding there was no

interrogation and the statement was voluntary.

       Jones argues the trial court erred in denying his motion to suppress because Officer

Leavell subjected him to a custodial interrogation after he invoked his right to counsel in

violation of his Miranda rights and his rights under the Fifth, Sixth, and Fourteenth

Amendments. 13

       On appeal of a trial court’s ruling on a motion to suppress, “the burden is upon [the

appellant] to show that the ruling . . . constituted reversible error.” McGee v. Commonwealth,

25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation and internal quotation

marks omitted). We view the evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences fairly deducible therefrom. See

Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995). Although we

give deference to the trial court’s findings of fact, we review de novo whether the challenged

evidence satisfied constitutional requirements. See Jackson v. Commonwealth, 267 Va. 666,

672, 594 S.E.2d 595, 598 (2004).

       The Fifth Amendment provides that no “person . . . shall be compelled in any criminal

case to be a witness against himself.” U.S. Const. amend V. And the Fourteenth Amendment

makes this privilege applicable to the states. See Malloy v. Hogan, 378 U.S. 1 (1964). In

Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court formulated certain


       12
          In his motion to suppress, Jones attached a transcript of a recorded conversation
between Jones and Leavell. He also references that transcript in his brief. However, it is clear
from the record and confirmed at oral argument that the transcript was made of a conversation
that took place on a later day and is not relevant.
       13
         Although appellant included a Sixth Amendment violation in his “question presented,”
he does not make any argument that his Sixth Amendment right to counsel was violated or cite to
any authority to support a Sixth Amendment violation. Therefore, we do not consider this issue
on appeal. Rule 5A:20(c).
                                             -6-
safeguards to protect the Fifth and Fourteenth Amendments’ prohibition against

self-incrimination. According to the Court, “without proper safeguards the process of in-custody

interrogation of persons suspected or accused of crime contains inherently compelling pressures

which work to undermine the individual’s will to resist and to compel him to speak where he

would not otherwise do so freely.” Id. at 467. One of the safeguards formulated by the Court in

Miranda was to have counsel present during a custodial interrogation. And when the accused has

“expressed his desire to deal with the police only through counsel, [he] is not subject to further

interrogation by the authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the police.” Edwards

v. Arizona, 451 U.S. 477, 484-85 (1981).

       The Miranda safeguards only come into play when the accused is subjected to

interrogation. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).

               “Any statement given freely and voluntarily without any
               compelling influences is, of course, admissible in evidence. The
               fundamental import of the privilege while an individual is in
               custody is not whether he is allowed to talk to the police without
               the benefit of warnings and counsel, but whether he can be
               interrogated. . . . Volunteered statements of any kind are not
               barred by the Fifth Amendment.”

Id. at 299-300 (quoting Miranda, 384 U.S. at 478) (emphasis in original). Interrogation, as

conceptualized in Miranda, “must reflect a measure of compulsion above and beyond that

inherent in custody itself.” Id. at 300. It refers not only to express questioning, but also to any

“words or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating response

from the suspect.” Id. at 301. The police are not held accountable for the unforeseeable results

of their words or actions. Id. at 301-02.




                                                -7-
       Applying these principles, we conclude the statement by Jones that he guessed he “was

just in the wrong place at the wrong time” was not made in response to an interrogation but was

a voluntary statement. Certainly, Officer Leavell did not expressly question Jones. Her remark

that she would be scared to death to be facing the same charges was also not the “functional

equivalent” of express questioning since it was not “reasonably likely to elicit an incriminating

response” from Jones. See id. at 301. In determining whether police conduct constitutes

interrogation, we must keep in mind the purpose of the decisions in Miranda and Edwards in

“preventing government officials from using the coercive nature of confinement to extract

confessions that would not be given in an unrestrained environment.” Arizona v. Mauro, 481

U.S. 520, 529-30 (1987). That purpose was not implicated by the dialogue between Leavell and

Jones in which Jones was not subject to any compelling influences by Leavell. Thus, the

statement by Jones was voluntary and not the product of interrogation. Accordingly, the trial

court did not err in denying the motion to suppress and allowing the introduction of the

testimony of Officer Leavell.

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                                                                    Affirmed.




                                               -8-
