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Bass v. Commonwealth

Court of Appeals of Virginia

July 9, 2019

KELLY DANIEL BASS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY Donald C. Blessing, Judge

          Jason 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

          OPINION

          RANDOLPH A. BEALES, JUDGE

         Appellant 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.

         I. Background

         Procedural History and Facts Relevant to Speedy Trial

         After 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, D.B.[1] Bass was held in continuous custody from the date of the indictment until his trial on July 11, 2017.

         On the 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.[2]

         On 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.

         On 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.

         On 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 motion.

         The 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.

         At the 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."[3] 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."

         Motion to Suppress

         During 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.

         On May 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.

         At the 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?"[4] 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.

         At the 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."

         D.B.'s Testimony By Closed-Circuit Television

         At 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.

         At the 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, [5] ...


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