THE CIRCUIT COURT OF CUMBERLAND COUNTY Donald C. Blessing,
Moore for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Beales and Malveaux
Argued at Richmond, Virginia
RANDOLPH A. BEALES, JUDGE
Kelly Daniel Bass was convicted of object sexual penetration
under Code § 18.2-67.2(A)(1), forcible sodomy under Code
§ 18.2-67.1(A)(1), aggravated sexual battery under Code
§ 18.2-67.3(A)(1), and indecent liberties with a child
under Code § 18.2-370(A)(4). On appeal, Bass contends
that the trial court erred in denying his post-trial motion
to dismiss "based on a violation of his speedy trial
rights"; failing to "delineate [its] ruling as to
dates and specific reasons for its findings regarding the
speedy trial issues"; denying his post-trial motion for
a retrial "based on the malfunctioning telephone
connecting appellant and counsel" during the child's
closed-circuit television testimony; and denying his motion
to suppress his confession.
History and Facts Relevant to Speedy Trial
waiving a preliminary hearing, on September 27, 2016, Bass
was indicted for object sexual penetration, two counts of
forcible sodomy, aggravated sexual battery, indecent
liberties with a child, and production of child pornography,
each involving Bass's eight-year-old cousin,
Bass was held in continuous custody from the date of the
indictment until his trial on July 11, 2017.
same day that the indictments were returned, Bass appeared in
the Circuit Court of Cumberland County to set a trial date.
The Commonwealth's Attorney informed the trial court that
she and Bass's trial counsel, Roger Stough, had
"agreed on a trial date of December 12, 2016." The
trial court entered an order which stated that Bass's
case would be "continued to December 12, 2016" and
that the continuance was on Bass's motion.
November 1, 2016, the parties appeared before the trial court
on the Commonwealth's motion for D.B. to testify at trial
via closed-circuit television. The trial court granted the
motion after Bass, both individually and through his counsel,
represented to the trial court that he did not object to D.B.
testifying in this manner.
December 1, 2016, Stough, on Bass's behalf, moved for a
continuance of the December 12, 2016 trial date because Bass
had been admitted to Central State Hospital. Bass's
motion to continue was heard on December 12, 2016. The trial
court granted the motion and entered an order continuing the
case until January 24, 2017, for the case "to be
set" for trial.
January 24, 2017, Bass's counsel represented to the trial
court that the hospital had extended Bass's 30-day hold
to up to 60 days. As a result of Bass's continued stay at
the hospital, Bass's counsel asked "for March 21st
to be an evaluation date to see whether we can set a trial
date." At the conclusion of the hearing, the trial court
entered an order stating that the matter would be continued
to March 21, 2017, "for a bench trial." The order
also reflects that the continuance was made on Bass's
parties appeared before the trial court again on the
scheduled March 21, 2017 date, where Stough informed the
trial court that Bass had been released from Central State
Hospital and that he no longer consented to the victim
testifying by closed-circuit television. In addition, Stough
told the trial judge that Bass "now wants to object to a
continuance to get his right to a speedy trial started."
Stough stated, "[Bass] has agreed to continuances in the
past, he wants to object to that continuance today."
With the agreement of the parties, the trial court set a date
to hear motions, including Bass's motion to vacate the
order allowing D.B. to testify by close-circuit television,
for April 10, 2017. The trial court also set trial for July
11, 2017, after counsel for both parties confirmed their
availability for that date. Stough told the trial court,
"I'm good with that day." However, he also
stated, "Judge, on any order that is entered I need to
object to the continuance just to get my client's rights
to a speedy trial started." The March 21, 2017 written
order continuing the trial to July 11, 2017, reflects that
Bass objected to the continuance and that he was not waiving
his right to speedy trial.
April 10, 2017 hearing on motions, Stough argued Bass's
motion to vacate the order permitting the victim to testify
by closed-circuit television, which the trial court denied.
Stough notified the trial court that he intended to file
additional motions, and the trial court set another motions
date for May 23, 2017. At the conclusion of the April 10,
2017 hearing, Stough informed the trial judge that the order
needed to reflect that he objected to the continuance based
on speedy trial and that he did not want Bass "agreeing
to a continuance order and potentially waiving a right to
speedy trial." That prompted the trial judge to ask
Stough, "But you agreed to the trial date?" and
Stough responded, "I agreed to the trial date, but that
is within the speedy trial timeframe." The trial judge
then said, "I understand. So if we have to push the
trial out we can deal with it on whatever date." The
written order contains a notation by the trial judge
indicating that Bass objected to the continuance "to
preserve speedy trial rights."
a custodial interview with Deputy Sheriff Dennis Ownby of the
Cumberland County Sheriff's Office on March 18, 2016,
after being read his Miranda rights, Bass confessed
to sexually molesting D.B.
1, 2017, Bass moved to suppress this confession, arguing that
he had made an unequivocal request for an attorney during the
interview. The trial court heard the motion on May 23, 2017.
The trial judge listened to an audio recording of the
confession which was entered into evidence and made part of
the record on appeal.
hearing on the motion, Stough argued that approximately eight
and one-half minutes into the interview, Bass made an
unequivocal request for counsel when he said, "Is there
any way uh I could have um like a an attorney or something
present or a lawyer or something and um maybe a like a mental
health professional?" On the audiotape, Detective Ownby
responded to Bass, stating, "I don't have them here,
if you want an attorney here, that's fine but I can
already tell you they're going to tell you don't tell
anything, but that's up to you. It's up to you."
A few moments later, Bass asked, "How should I
start?" Then, approximately twelve and one-half minutes
into the interview, Bass stated, "What difference would
it make if I um waited for like a lawyer and like a mental
health professional?" and Ownby responded that he was
not required to get Bass a mental health professional. He
also stated, "If you want a lawyer, we can get you a
lawyer but I can already tell you that they won't let you
tell us what happened . . . . But it's up to you, I'm
not going to deny you your rights." Bass then proceeded
to make incriminating statements amounting to a confession of
the indicted charges.
hearing, Stough indicated that he was only relying on
Bass's first statement as a basis for his motion to
suppress. After listening to the audio recording of the
interview, the trial court denied the motion to suppress,
finding that Bass's words were "ambiguous questions
about wanting a lawyer."
Testimony By Closed-Circuit Television
appellant's bench trial on July 11, 2017, D.B. testified
by closed-circuit television in accordance with the trial
court's prior ruling. Before she began her testimony,
Stough informed the trial court that he had been told by a
state police officer, who was running the closed-circuit
system, that if Bass were to call Stough during the
testimony, the whole courtroom would be able to hear their
conversation. To address the problem, Stough proposed that if
Bass needed to speak with him, Bass should raise his hand to
get the trial judge's attention and then Stough could
leave the witness room and meet with Bass. The trial judge
explained the situation to Bass directly, informing him of
the importance of his being able to speak with his counsel
and explaining that the current configuration of the phone
system would prevent those conversations from being
confidential. Therefore, the trial judge proposed that, if
Bass wanted to speak with Stough during D.B.'s testimony,
he should "simply pick up [the] phone and say I need to
speak to you" and then they could meet. Stough agreed
with this plan, noting that it "sounds great."
D.B.'s testimony proceeded in accordance with this plan.
conclusion of the bench trial, the court found Bass guilty of
forcible sodomy, object sexual penetration, aggravated sexual
battery, and indecent liberties with a minor,  ...