Dawain Hopkins, s/k/a Dawain Russell Hopkins v. CW ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
DAWAIN HOPKINS, S/K/A
DAWAIN RUSSELL HOPKINS
MEMORANDUM OPINION * BY
v. Record No. 0502-00-1 JUDGE RICHARD S. BRAY
MAY 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Michael F. Fasanaro, Jr. (Abrons, Fasanaro &
Sceviour, on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dawain Hopkins (defendant) entered conditional guilty pleas
in the trial court to indictments charging murder in the first
degree and conspiracy to commit murder, preserving his right to
appeal the denial of his motion to suppress certain inculpatory
statements made to police. Accordingly, defendant maintains
before this Court that such statements were the product of a
custodial interrogation, unattended by the requisite Miranda
warnings, and erroneously admitted into evidence. We disagree and
affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
When a motion to suppress is reviewed on
appeal, the burden is on the appellant to
show that the ruling, when the evidence is
considered in the light most favorable to
the Commonwealth, constituted reversible
error. We review the trial court's findings
of historical fact only for "clear error,"
but we review de novo the trial court's
application of defined legal standards, such
as "reasonable suspicion" and "custodial
interrogation," to the particular facts of a
case.
Ford v. Commonwealth, 28 Va. App. 249, 255, 503 S.E.2d 803, 805
(1998) (internal citations omitted).
Viewed accordingly, the instant record discloses that
Virginia Beach Detective Shawn W. Hoffman, while investigating
the disappearance of Troy Wilson, spoke with defendant's sister
and learned defendant and Kevin Potts had information pertinent to
the "missing person report." Defendant's mother was privy to the
conversation, and Hoffman sought and obtained her permission to
speak with defendant, then age sixteen, before locating him
shortly thereafter at Potts' home.
Hoffman asked defendant "if he would accompany [him] to
police headquarters as we could talk with one another in regards
to the disappearance of Troy Wilson," adding that his mother had
authorized the interview. Defendant replied, "he did not have a
- 2 -
problem doing that." Prior to leaving the residence, defendant
"was advised . . . that he was not under arrest" and, during the
ten minute trip to headquarters, "was not restrained in any
fashion" and "sat in the front seat of [the] unmarked" and
unlocked police vehicle.
En route, defendant volunteered that "he had last seen" Troy
Wilson "two weeks prior," when he and Potts purchased marijuana
from him. Upon arrival, Hoffman advised defendant, "we had
information that he . . . and Mr. Potts [were] somehow involved
. . . in the disappearance of Troy Wilson." Defendant then
"indicated . . . he would tell . . . what happened," and he and
Hoffman, accompanied by Detective Byrum, proceeded to "interview
room . . . 138." Hoffman again advised defendant "he was not
under arrest [and] . . . was free to leave" and began a videotaped
interview at approximately 3:30 p.m. 1
The video depicts a small, Spartan room, furnished with a
table and three chairs. Defendant and Hoffman were initially
seated at opposite ends of the table but, as the interview
progressed, Hoffman drew closer to defendant, moving his chair
along the table. Byrum was seated beside defendant but soon left
the room and did not return. During the interview, defendant
explained to Hoffman that Potts, a close friend, had murdered
Wilson, after Wilson threatened to "shoot" defendant as a result
1
The videotape was reviewed by both the trial court and
this Court.
- 3 -
of an unpaid drug debt. Defendant recalled Potts had jokingly
mentioned killing Wilson to protect defendant, but insisted he did
not solicit Potts to commit the crime, did not page or otherwise
summon Wilson to the fatal rendezvous with Potts, and was not
present during commission of the offense. Defendant did, however,
admit assisting Potts in moving and burying the corpse
approximately two weeks following the murder.
As the interview progressed, defendant's fear of
incarceration as a consequence of his involvement with Potts
became apparent, and Hoffman's responses to defendant's related
questions included "I don't know about that," "I can't guarantee
anything" and "Nobody's going to Beaumont or anything." Defendant
asked, "Do I get to go home tonight?" and Hoffman answered, "We're
going to see about that," and, later, "We're working on that,
alright?" to a similar inquiry. When defendant commented, "Well,
I just want to go home tonight," Hoffman responded, "Okay. Hold
tight for a few minutes." Subsequently, the following exchange
occurred between defendant and Hoffman:
Defendant: But I can't leave though.
Hoffman: You could leave, but I think
you wanted [sic] to sit here
and tell me what happened.
You certainly could leave.
Defendant: Yeah, but ain't gonna help me
in court. 'Cause I know I'm
gonna be in court for this,
ain't I?
Hoffman: Possibly . . .
Defendant: What I'm saying, I'm going to
get locked up though, huh?
- 4 -
Hoffman: I don't know that. I honestly
don't know that.
After approximately forty minutes, at "about 1610 or 1615
hours," the audio/visual capability available in room 138 was
required by another officer, and the interview was relocated to
room 136. While changing rooms, defendant was offered "anything
to eat or drink" and permitted to use the restroom, unaccompanied
and without restraint. Hoffman and defendant then "talked about
the case a little bit more," "basically rehashing" the earlier
discussion, and defendant agreed to "accompany [Hoffman] out to [a
nearby] housing area and show [Hoffman] where he had buried the
body."
Hoffman, Byrum and defendant traveled in an unmarked police
car, with defendant "direct[ing] . . . where to drive" while
riding, unrestrained in the front seat of the car. On arrival,
defendant indicated the locations "where . . . Potts told him the
incident happened," he first observed Wilson's corpse "covered
with leaves," he and Potts buried Wilson and the two disposed of
the murder weapon. Defendant walked freely to and about the area
and was once separated from the detectives by a "chain link fence
and row of bushes."
At the conclusion of the site visits, Hoffman reminded
defendant he was not under arrest and "asked . . . if he would
accompany [them] back to police headquarters so we could continue
our interview." Defendant agreed and, upon return to the station,
- 5 -
was again permitted to use the restroom, unaccompanied and
unrestrained.
Returning to room 136, Hoffman inquired, "one more time[,]
who actually paged Troy Wilson on the day of the murder." In
response, defendant admitted that he, not Potts, had paged Wilson,
because "he knew if he got him over there that [Potts] was going
to kill him." "At that point," Hoffman recalled, defendant "asked
. . . – told us he would like to go home," and Hoffman first
advised him that he was "in custody and . . . not free to leave."
This final exchange occurred at approximately 6:00 p.m., and
defendant was arrested for the subject offense shortly thereafter.
Hoffman testified that defendant had not previously implicated
himself in the murder of Wilson, "as far as actually being a
principal or participant," and he had not intended to arrest
defendant until he admitted summoning Wilson to the meeting with
Potts, fully aware of Potts' murderous intentions.
The evidence is uncontroverted that defendant was not
afforded Miranda warnings prior to arrest.
II.
It is well established that the safeguards of Miranda pertain
only to "custodial interrogation." Pruett v. Commonwealth, 232
Va. 266, 271, 351 S.E.2d 1, 4 (1986). In determining whether a
suspect is "in custody" for Miranda purposes, "'the ultimate
inquiry is simply whether there is a "formal arrest or restraint
on freedom of movement" of the degree associated with formal
- 6 -
arrest.'" Harris v. Commonwealth, 27 Va. App. 554, 564, 500
S.E.2d 257, 262 (1998) (quoting California v. Beheler, 463 U.S.
1121, 1125 (1983) (citation omitted)). "The situation must be
viewed from the vantage point of 'how a reasonable man in the
suspect's position would have understood his situation.'" Wass v.
Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987)
(quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). Factors
previously identified by this Court as pertinent to resolution of
a custody issue in the context of Miranda include
(1) the familiarity or neutrality of the
surroundings, (2) the number of police
officers present, (3) the degree of physical
restraint, (4) the duration and character of
the interrogation, (5) the presence of
probable cause to arrest, and (6) whether
the suspect has become the focus of the
investigation.
Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756,
759 (1989).
Here, in ruling "that this was not a custodial
interrogation" and overruling defendant's motion to suppress his
statements, the trial court found defendant "did, in fact,
voluntarily come down to the detective bureau with Detective
Hoffman" and willingly returned following the visit to the crime
scene. "Additionally," the court noted, defendant "was free to go
at that time" anytime and "was so advised more than once," was
permitted use of the restroom without restraint and unaccompanied
by police, and interviewed in an unlocked room. With reference to
- 7 -
the videotape, the court commented defendant "seem[ed] to be aware
of what was going on[,] . . . appeared . . . articulate,
intelligent, and . . . not . . . under the . . . influence of
. . . narcotics or . . . alcohol."
Guided by the factors relevant to resolution of the custody
issue and the findings of fact by the trial court, our independent
examination of the record confirms that a reasonable person,
situated like defendant, would not have considered himself under
arrest or otherwise restrained by police during the interview with
Hoffman. While defendant clearly raised the spectre of
incarceration, his concern was focused on the possibility of
punishment resulting from involvement with Potts, not custody
attendant to the interview. To the contrary, during the sessions
with Hoffman, defendant acknowledged his freedom to leave the
stationhouse and explained his decision to remain. Under such
circumstances, we conclude defendant was not then in custody, as
contemplated by Miranda.
Accordingly, the court correctly admitted the related
statements into evidence, and we affirm the convictions.
Affirmed.
- 8 -