Devita Latoria Jones v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
DEVITA LATORIA JONES
MEMORANDUM OPINION * BY
v. Record No. 1433-98-1 JUDGE SAM W. COLEMAN III
MAY 18, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. &
Associates, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Devita Latoria Jones was convicted in a bench trial of
conspiracy to commit robbery, two counts of attempted robbery, and
use of a firearm in the commission of attempted robbery. Jones
contends that the trial court erred by denying her motion to
suppress a statement obtained from her in violation of her Fifth
Amendment privilege against self-incrimination. Additionally, she
contends that the trial court erred by allowing a victim witness
to testify about his understanding of ambiguous language spoken
during the robbery. Finding no error, we affirm.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
BACKGROUND
On appeal from a trial court’s ruling on a motion to
suppress, we view the evidence in the light most favorable to the
prevailing party and grant to it all reasonable inferences fairly
deducible therefrom. See Harris v. Commonwealth, 27 Va. App. 554,
561, 500 S.E.2d 257, 260 (1998).
Jones and three other individuals lured two motorists into an
“inspection station” under the pretext of seeking automotive
assistance. Once there, two of the individuals drew weapons in an
attempt to rob the motorists. The victims fled amidst gunfire.
On April 11, 1997, Detective Cox learned that Jones, who was
already in custody, wanted to speak with him. Believing that
Jones had invoked her Fifth Amendment right to counsel during a
March 26, 1997 custodial interrogation, Cox reminded Jones that
the Miranda rights read to her on March 26, 1997 were still in
effect, and asked her if she wanted to proceed with a discussion.
When Jones responded by requesting information about the charges
against her, Cox replied that she was being held on robbery
charges. He again reminded her that she had invoked her right to
an attorney and suggested that she seek the advice of her
attorney. Cox then explained that he agreed to meet with her
because he thought she had something to tell him and that if she
did not, he would leave.
As he turned to leave, she asked whether he wanted to show
her some pictures. Cox replied that he did not, but he told Jones
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that if she wanted to look at some pictures he could oblige her.
Jones began crying and said she did not know whether to contact an
attorney. 1 Cox told her to call her attorney if she desired.
Jones then stated she would look at some police photographs.
Jones identified from a photographic array one of the perpetrators
of the attempted robbery with which she was later charged. Jones
explained to Cox how the individual had instructed her to lure the
motorists into the trap.
At trial, Inocencio Albrincoles, a victim of the attempted
robbery, testified that one of the individuals who was brandishing
a firearm at him stated, “What’s up? What’s up now?” The
Commonwealth asked Albrincoles, “[w]hat did you perceive that to
mean?” Over Jones’s objection, the trial court admitted the
witness’ response, which was that “whatever we had, they wanted.”
ANALYSIS
In a pretrial suppression motion, Jones argued that Cox
obtained the incriminating statement in violation of her Fifth
Amendment right against self-incrimination. Jones contended that
Cox failed to honor scrupulously the Miranda rights she had
properly invoked in March. We review the trial court’s findings
of historical fact for “clear error,” but we review de novo the
trial court’s application of defined legal standards to those
1
The officer gave two different representations of her
statement: “I don’t know if I need my attorney,” and “I don’t
know if I should talk to my attorney.”
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facts. See Shears v. Commonwealth, 23 Va. App. 394, 398, 477
S.E.2d 309, 311 (1996).
On appeal, Jones argues that the Commonwealth failed to
establish that the police officers informed Jones of her Miranda
rights in her initial March 26, 1997 interview. In the
suppression hearing, Officer Cox testified that at the April 11,
1997 meeting where he obtained the statement that Jones sought to
suppress, he explained to Jones that the Miranda rights that had
been explained to her in March were still in effect. 2 Jones
contends that the evidence only proves that Cox told her in April
that officers had read Miranda rights to her in March, but the
Commonwealth did not prove that the officers had in fact explained
the Miranda rights to her.
However, at the suppression hearing, Jones never asserted
that the evidence should be suppressed because the officers
failed to read Miranda rights to her. In fact, during the
suppression arguments, counsel for Jones conceded that the
2
Detective Cox made the following statements:
“I advised her that she was read her Miranda rights on the
March date and that she was still under those Miranda rights.”
“I advised her that her Miranda warning that was read to
her on the March incident –- that that Miranda warning was still
in effect.”
“I advised her –- I said the Miranda warning that you were
read the night the other detectives talked to you is still in
effect.”
“I advised her that she had invoked her right to an
attorney.”
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officers had read Jones her Miranda rights in March. Counsel
argued that the police officers “didn’t re-advise her of her
Miranda rights, so these weren’t fresh in her mind.” (Emphasis
added). Furthermore, he stated, “we don’t know what condition
she was in on March 26th when the Miranda rights were read to
her, but he did not re-advise her.” (Emphasis added).
Having conceded in the suppression hearing that “on
March 26, Miranda rights . . . were read to her,” Jones may not
now argue on appeal that on March 26, Miranda rights were not read
to her. Jones preserved for appeal only those issues that she
raised at the suppression hearing. See Rule 5A:18; Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
“The main purpose of [Rule 5A:18] is to
afford the trial court an opportunity to
rule intelligently on the issues presented,
thus avoiding unnecessary appeals and
reversal. In addition, a specific,
contemporaneous objection gives the opposing
party the opportunity to meet the objection
at that stage of the proceeding.”
Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488
(1998) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d
164, 167 (1991)). We find that Jones is procedurally barred
from raising on appeal, for the first time, the issue of whether
officers properly explained the Miranda rights to her on
March 26.
Jones did, however, preserve for appeal the issue of
whether Officer Cox honored Jones’s previously invoked Fifth
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Amendment rights. A defendant who has “expressed his desire to
deal with the police only through counsel 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); see
Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (finding valid
waiver after accused reopened dialogue by inquiring, “Well what is
going to happen to me now?”); Harrison v. Commonwealth, 244 Va.
576, 582-83, 423 S.E.2d 160, 164 (1992) (holding that appellant
initiated contact by asking police “what was going to happen to
him”). Jones concedes that she initiated the contact with Cox,
and we find that her conduct during the April meeting invited
discussion of the incident out of which the charges arose. See
Giles v. Commonwealth, 28 Va. App. 527, 535, 507 S.E.2d 102, 107
(1998).
The United States Supreme Court has made clear, however, that
once an accused has invoked her right to counsel, she does not
waive that right merely by initiating some contact with the police
in the absence of her counsel. The Commonwealth must prove that,
under the totality of the circumstances, the accused made a
knowing and intelligent decision to waive her right to have
counsel present. See Bradshaw, 462 U.S. at 1046; Quinn v.
Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997).
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Whether the defendant knowingly and intelligently waived her
right to counsel depends “upon the particular facts and
circumstances surrounding the case, including the background,
experience, and conduct of the accused.” Johnson v. Zerbst, 304
U.S. 458, 464 (1938). After the police officers read Jones the
Miranda rights in March, she invoked her right to counsel. Two
weeks later, Jones, of her own volition, requested to speak to
Officer Cox in the absence of counsel. Cox reminded Jones that
the Miranda rights that the officers had read to her earlier were
still in effect, and he inquired whether she still wanted to talk
to him. When she proceeded to inquire about the charges against
her, he again reminded her that she had invoked her right to an
attorney and that she should speak with the attorney. He further
advised her that she could contact an attorney before proceeding.
Nevertheless, Jones, who had a prior felony charge and experience
with the criminal justice system, decided to proceed without
counsel. Although she cried during the interrogation, Officer Cox
testified that she appeared “fine” and asked “intelligent
questions.” We find from this evidence that Jones knowingly,
intelligently, and voluntarily waived her previously invoked right
to counsel and that she did not again invoke the right to counsel
during the meeting with Cox. Accordingly, the trial court did not
err in denying Jones’s motion to suppress her statements.
Jones next contends that the trial court erred in allowing
Albrincoles, one of the victims, to testify as to his
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understanding of the statement made by one of the robbers
brandishing a firearm: “What’s up? What’s up now?” Albrincoles
responded: “Basically what it meant was that whatever we had,
they wanted -– to put it in layman’s terms.” Jones contends that
the question called for inadmissible lay opinion.
“The admissibility of evidence is within the broad discretion
of the trial court, and the ruling will not be disturbed on appeal
in the absence of an abuse of discretion.” Blain v. Commonwealth,
7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). The elements of
common law robbery include the taking of a victim’s property
“against his will . . . by violence or by putting him in fear.”
Chappelle v. Commonwealth, 28 Va. App. 272, 274, 504 S.E.2d 378,
379 (1998). Thus, a robbery can occur where the robber takes the
victim’s property without actual violence, but by the use of
intimidation. See e.g., Jordan v. Commonwealth, 2 Va. App. 590,
597, 347 S.E.2d 152, 156 (1986).
To take or attempt to take by intimidation
means willfully to take, or attempt to take,
by putting in fear of bodily harm.
Intimidation results when the words or
conduct of the accused exercise such
domination and control over the victim as to
overcome the victim’s mind, and overbear the
victim’s will, placing the victim in fear of
bodily harm.
Bivins v. Commonwealth, 19 Va. App. 750, 752-53, 454 S.E.2d 741,
742 (1995) (internal quotation marks and citation omitted).
The challenged testimony tended to prove the victim’s state
of mind -- specifically whether or not he was intimidated by the
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statement. Whether the perpetrators intimidated the victim was
relevant to whether they took direct steps to effectuate a
robbery. The testimony was, therefore, properly admissible as an
“opinion” or “impression” drawn from an observed fact that
explained how the witness responded or reacted to the observed
fact. See Lafon v. Commonwealth, 17 Va. App. 411, 420-21, 438
S.E.2d 279, 285 (1993). The statement, “what’s up, what’s up
now,” taken in context with the robber brandishing a firearm at
the victim, could have been intended to intimidate the victim.
The trial court did not err by admitting the testimony for the
purpose of proving that the statement, and meaning that the victim
derived from it, intimidated the victim.
Finding that the trial court did not err in denying the
motion to suppress, or in admitting the contested statement, we
affirm the convictions.
Affirmed.
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