Lois Eunice Roundtree v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Senior Judges Hodges, Overton and
Retired Judge Stephens ∗
Argued at Chesapeake, Virginia
LOIS EUNICE ROUNDTREE
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1686-99-1 JUDGE NELSON T. OVERTON
JUNE 6, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
B. Thomas Reed for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from her convictions of robbery, in violation of
Code § 18.2-58; abduction, in violation of Code § 18.2-47; use
of a firearm in the commission of a felony, in violation of Code
§ 18.2-53.1; and carjacking, in violation of Code § 18.2-58.1,
Lois Eunice Roundtree contends that the trial court erred in
denying her motion to suppress statements made in violation of
her right to remain silent and her right to counsel.
∗
Retired Judge J. Warren Stephens took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
In reviewing the trial judge's denial of Roundtree's motion
to suppress, "we view the evidence in the light most favorable
to [the Commonwealth], the prevailing party below, and we grant
all reasonable inferences fairly deducible from that evidence."
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). In our review, "we are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them." McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699 (1996)). We
consider de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officer unlawfully infringed
upon an area protected by the Fourth Amendment. See id.On the evening of January 2, 1999, Roundtree, Sean
Thompson, and Floyd Walker drove to a Virginia Beach nightclub,
where they spotted Chauncey Washington in the parking lot. They
decided to rob him. Roundtree lured Washington out of his
vehicle. Thompson, armed with a gun, and Walker then forced
Washington back into the car, in which the three men drove to a
bank ATM, followed by Roundtree.
Walker and Thompson then left with Washington and shot him.
As Roundtree was leaving the bank, she was stopped for speeding.
While stopped, a report describing Roundtree's car as involved
in an abduction was issued. Police detectives found suspicious
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sets of keys, blood splatters, gloves, and a .22 caliber round
in the car, and took Roundtree to the station for questioning.
At the station, Roundtree was apprised of her Miranda
rights. She repeatedly denied involvement in the crime, and
almost two hours into the questioning, she asserted her right to
remain silent, saying, "You read me my rights. You said I did
not have to talk with you. I do not want to talk to you." The
detective immediately left the room. For a time thereafter, the
detective periodically entered the room to offer Roundtree a
snack or beverage.
Three and a half hours after Roundtree asserted her right
to remain silent, two police detectives entered the
interrogation room and reminded Roundtree of her Miranda rights.
She acknowledged her comprehension of those rights. The
detectives said that they would like to resume talking to her,
and she acquiesced, talking with the police for the next four
hours.
Roundtree contends that the information communicated to the
police in the second interview was obtained in direct violation
of her constitutional right to remain silent.
"Miranda forbids continued interrogation of an individual
in custody after [s]he has invoked [her] right to remain
silent." Webber v. Commonwealth, 26 Va. App. 549, 557, 496
S.E.2d 83, 86 (1998) (citation omitted). Once such right is
invoked, however, there is no "per se proscription of indefinite
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duration upon any further questioning . . . ." Weeks v.
Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386 (1994).
Courts must examine five factors to determine whether a
subsequent questioning was proper. See Michigan v. Mosley, 423
U.S. 96, 104-06 (1975).
Suggesting a case-by-case approach to
determine that continued questioning was
appropriate after an initial refusal to
answer questions, the Mosley court mentioned
five factors that related to the evidence in
that case. First, whether defendant "was
carefully advised" before the initial
interrogation "that he was under no
obligation to answer any questions and could
remain silent if he wished." Second,
whether there was an immediate cessation of
the initial interrogation, and no attempt to
persuade defendant to reconsider his
position. Third, whether the police resumed
questioning "only after the passage of a
significant period of time." Fourth,
whether Miranda warnings preceded the second
questioning. Fifth, whether the second
interrogation was limited to a crime that
had not been the subject of the earlier
interrogation.
Weeks, 248 Va. at 471, 450 S.E.2d at 386 (citations omitted).
Detective Cox testified that he read Roundtree the Miranda
rights from a standard card. She acknowledged that she
understood these rights, stated that she had received twelve
years of education, and denied any drug or alcohol use. She
does not contend that she knowingly and voluntarily waived her
rights initially. Two hours after questioning commenced,
Roundtree invoked her right to remain silent. At that time,
detectives, clearly respecting that invocation, ceased
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questioning and left the room, without attempting to persuade
Roundtree to change her mind. Several hours later, after
returning to the room only to make sure Roundtree was
comfortable, detectives resumed questioning. At that time, the
detectives reminded Roundtree of her Miranda rights, of which
she acknowledged affirmatively her understanding. Finally,
police initially questioned Roundtree about her involvement in
an abduction. Details of the incident were sketchy, and only
later did police find out about Washington's injuries. "[T]he
mere fact that the second interview involved some of the same
subject matter discussed during the initial interview does not
render the confession constitutionally invalid." Id. at 471,
450 S.E.2d at 387.
When these factors are applied to the present case, no
violation of Roundtree's constitutional rights occurred. The
record clearly supports the findings that Roundtree knew her
rights and voluntarily waived them and that the police did not
coerce Roundtree's cooperation, but rather fully respected her
invocation of those rights.
As for Roundtree's contention that her statements were made
in violation of her right to counsel, we find that Roundtree did
not adequately preserve this issue for appeal. "No ruling of
the trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefor at the time of the ruling . . . ." Rule 5A:18. See
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also Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d
630, 631 (1991). This rule extends to claimed errors that deny
constitutional rights. "We refuse to address the constitutional
question because the defendant did not raise it in the trial
court." Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405
S.E.2d 438, 441 (1991).
The judgment of the trial court is affirmed.
Affirmed.
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