Kelly Daniel Bass v. Commonwealth of Virginia
70 Va. App. 522
| Va. Ct. App. | 2019Background
- Kelly Daniel Bass was indicted (Sept. 27, 2016) on multiple sexual-offense charges involving his 8‑year‑old cousin and held in continuous custody until trial (July 11, 2017).
- Trial was initially set for Dec. 12, 2016; Bass requested continuances while hospitalized (Dec. 2016–Mar. 2017).
- On Mar. 21, 2017 the court set trial for July 11, 2017; the written order noted Bass objected to continuance to preserve speedy‑trial rights but did not seek dismissal then.
- Pretrial custodial interview (Mar. 18, 2016) produced a confession; Bass later moved to suppress, arguing he made an unequivocal request for counsel.
- At trial the child testified by closed‑circuit television; trial counsel agreed to an alternative procedure for private communication when the phone system operator warned the phone might not be confidential.
- After conviction, Bass filed post‑trial motions alleging statutory and constitutional speedy‑trial violations, a malfunctioning closed‑circuit phone denied confidential counsel communication, and suppression error; the trial court denied relief and the Court of Appeals affirmed.
Issues
| Issue | Bass's Argument | Commonwealth's / Trial Court's Argument | Held |
|---|---|---|---|
| Whether Bass’s statutory and constitutional speedy‑trial rights were violated | Periods Sept.27–Dec.12/Mar.21–Jul.11 should be charged to Commonwealth; trial occurred beyond Code § 19.2‑243 limits | Bass waived the claim by failing to file a written pretrial dismissal motion pursuant to Code § 19.2‑266.2 and Rule 3A:9; no good cause shown | Waiver; trial court correctly denied post‑trial dismissal |
| Whether trial court erred by not detailing dates/reasons for speedy‑trial ruling | Requested clearer breakdown of time calculations and reasons | No statutory requirement for additional findings; judge gave extensive oral ruling | No error; oral ruling was adequate |
| Whether malfunctioning closed‑circuit phone denied right to effective assistance / private communication with counsel | Malfunction prevented private, contemporaneous communication as required by Code § 18.2‑67.9(D) and Sixth Amendment | Issue not preserved: no contemporaneous objection at trial; trial counsel agreed to alternate procedure | Not reached on merits due to waiver under Rule 5A:18 |
| Whether confession should have been suppressed because Bass unequivocally requested counsel | Statements like “Is there any way… I could have… an attorney… or maybe a mental health professional?” were an unambiguous request for counsel | Statements were ambiguous questions seeking clarification; officer not required to stop questioning; trial court’s factual finding entitled to deference | Denial of suppression affirmed: request was ambiguous, not an unequivocal invocation of right to counsel |
Key Cases Cited
- Arrington v. Commonwealth, 53 Va. App. 635 (Va. Ct. App.) (speedy‑trial rule timing serves to prevent surprise and undue delay)
- Magruder v. Commonwealth, 275 Va. 283 (Va. 2008) (statutory timing requirements for pretrial motions serve legitimate state interests)
- Williams v. Commonwealth, 57 Va. App. 750 (Va. Ct. App.) (failure to comply with Code § 19.2‑266.2 waives double jeopardy objection)
- Redmond v. Commonwealth, 264 Va. 321 (Va. 2002) (defendant’s invocation of right to counsel is an objective inquiry; ambiguous references to counsel do not require cessation of questioning)
- Hilliard v. Commonwealth, 270 Va. 42 (Va. 2005) (questions seeking clarification of Miranda rights are not unequivocal invocations of counsel)
- Fitzgerald v. Commonwealth, 223 Va. 615 (Va. 1982) (trial courts are not generally required to make written findings of fact and conclusions of law)