Doris Lucress v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
DORIS LUCRESS
v. Record No. 2638-94-1 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA JULY 2, 1996
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
Gerard T. Schafer (Schafer & Russo, P.C., on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Doris Lucress (appellant) appeals from a judgment of the
Circuit Court of the City of Virginia Beach (trial court) that
approved jury verdicts convicting her of two counts of abduction
in violation of Code § 18.2-47, two counts of robbery in
violation of Code § 18.2-58, and use of a firearm in the
commission of a felony in violation of Code § 18.2-53.1. On
appeal, appellant argues that the trial court erred in refusing
to suppress (1) a statement she made to the police and (2) a
witness's voice identification of appellant. Appellant asserts
that the statement was involuntarily given and that the
identification was impermissibly tainted. Finding no error, we
affirm the judgment of the trial court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Facts
The trial court having denied the motion to suppress, we
view the evidence in the light most favorable to the trial
court's decision. Brown v. Commonwealth, 15 Va. App. 1, 7, 421
S.E.2d 877, 881 (1991). Viewed accordingly, the record discloses
that on July 25, 1993, Patricia Marie Steele (Steele) and Kathryn
Martin Henshaw (Henshaw) were working at the Linen Warehouse (the
store) in Virginia Beach. Robbin Marlar (Marlar), the store's
security guard, was also working that day. At approximately 6:00
p.m., closing time, the last customer left the store, and all the
employees, except Steele, Henshaw, and Marlar, left the building
by 6:25 p.m. The doors of the building were secured and Henshaw
and Steele began the process of totaling the day's receipts.
Steele took the money from the cash registers back to the
cash office and locked the door. Steele put the money away while
Henshaw was coming back to the office. Marlar told Steele she
could "unlock the door now. There's no one else here." Steele
said "No," that it was store policy to keep the door locked at
all times. Steele did open the door, however, to let Henshaw
into the office. Steele and Henshaw began to "double-check" the
day's figures to make sure they were correct.
While Steele was sitting with her back to the door, working
on re-checking the figures, she heard the door open and heard
Marlar say "this is where you work . . . I've never been in
here." As Steele turned to answer Marlar, she saw a gun coming
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over Marlar's shoulder and heard a voice say, "Give me the
money." Steele froze for a second and then began to concentrate
on the person with the gun to get as detailed a description of
her as she could. The person holding the gun was a woman
"disguised completely from head to toe." Henshaw knew it was a
woman because of the voice. Steele also knew the person was a
woman because of her "size and build . . . . Plus the main reason
. . . was the voice." The woman told Steele and Henshaw to turn
around and face the wall, which they did, and then told Marlar,
"Give me the money. Give me the money." Marlar told the woman
she did not have the money "and the person again said, 'Give me
the money.'"
Steele asked the woman if it was okay for her to get up and
get the money from the safe. The woman responded, "Of course."
Steele opened the safe and handed the woman seven bags which
contained approximately $8,000. The woman then told Marlar to
handcuff Steele. Marlar handcuffed Steele's hands behind her
back and then was given a second pair of handcuffs to handcuff
Henshaw. Next, the woman gave Marlar a roll of duct tape and
told her to tape Steele's and Henshaw's eyes and mouths shut.
Marlar taped Steele's eyes and mouth first. Steele then heard
the woman tell Marlar to put the tape across Henshaw's eyes and
mouth. Next, the woman instructed Marlar to tape Henshaw's
ankles and told Steele to lie face down on the floor. Marlar
taped Steele's and Henshaw's ankles together. The woman told
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Marlar to get Henshaw's keys. Marlar removed the keys, and
Steele heard the woman tell Marlar "You're coming with me," at
which time the two left. Before leaving, the woman told them,
"If you move or try anything, I'll kill the security guard."
Steele and Henshaw managed to free themselves, and Henshaw
called the police.
At approximately 7:35 p.m. that evening appellant and Marlar
were apprehended a few miles from the store. They were in
Marlar's car. Marlar was driving and appellant was a passenger.
Contraband from the robbery and instruments similar to those
used to effectuate the robbery were found throughout the car.
Sergeant William B. Robertson (Robertson), a Virginia Beach
Police Department Investigator, arrived at the scene at
approximately 7:45 p.m. and advised appellant that she was being
"detained in connection with a robbery at [the store]" and
advised her of her Miranda rights. Appellant stated that she
understood her rights and that she wanted to make a statement.
Appellant was not questioned at the time and was told that she
would be questioned at the police station.
At 10:35 p.m. that evening, Officer Patrick Allen Lewis
(Lewis) and Robertson interviewed appellant at the police
station. Lewis told appellant that she was going to be charged
with two counts of robbery, two counts of abduction, and one
count of use of a firearm. Appellant acknowledged that she had
been advised of her rights. Appellant confessed to committing
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the crime with Marlar.
On August 3, 1993, nine days after the robbery, appellant's
bond hearing was held. Steele was present. Appellant appeared
at the hearing in an orange uniform, and she was shackled at the
feet. When Steele first saw appellant, she was not sure if she
was the robber. As soon as Steele heard appellant's voice,
however, she knew that appellant was the person who had committed
the robbery and identified her as such.
Appellant filed a motion to suppress (1) the statements
appellant made to the police at the station and (2) Steele's
voice identification of appellant. A suppression hearing was
held on May 3, 1994.
With respect to the interrogation, the trial court ruled
that Robertson fully advised appellant of her Miranda rights, and
that appellant "understood those rights and agreed to answer
questions posed to her by the officers." The trial court
rejected appellant's argument that she had been coerced into
making a statement, holding as follows:
Having had the opportunity to view the
defendant on this the videotape, to hear her
testimony today, the testimony of the
officers, it's clear to me that any statement
she ultimately made was made knowingly and
voluntarily and without any threat, without
any duress, without any coercion on the part
of the officers and that it was the product
of a free mind.
With respect to the voice identification, at the suppression
hearing, on cross-examination, Steele stated that she first
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thought the robbery might be some kind of test by the security
company and, therefore, she was paying particular attention to
every detail to get as much information as she could. Steele
paid attention to appellant's voice during the robbery and felt
immediately after the robbery that if she ever heard the voice
again she would be able to identify it. The trial court denied
appellant's motion to suppress Steele's voice identification of
appellant.
Statement to Police
Miranda warnings "ensur[e] that a suspect knows that he may
choose not to talk to law enforcement officials, to talk only
with counsel present, or to discontinue talking at any time. The
Miranda warnings ensure that a waiver of these rights is knowing
and intelligent . . . ." Colorado v. Spring, 479 U.S. 564, 574
(1987). One of the "purposes of the safeguards prescribed by
Miranda [is] . . . as much as possible to free courts from the
task of scrutinizing individual cases to try to determine, after
the fact, whether particular confessions were voluntary." May v.
Commonwealth, 3 Va. App. 348, 354-55, 349 S.E.2d 428, 431 (1986).
Here, the trial court found, and appellant does not deny,
that after being Mirandized she knowingly and voluntarily
consented to make a statement to the police. Nevertheless,
appellant alleges that certain statements made by the
interrogating officers at the beginning of her interview vitiated
her previously given consent. Appellant relies upon Collazo v.
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Estelle, 940 F.2d 411 (9th Cir. 1991), to support her argument.
Her reliance is misplaced. In Collazo, after being advised of
his rights, the defendant asked to speak with a lawyer. Instead
of providing him with one, the interrogating officers proceeded
to discourage the defendant from exercising that right.
Thereafter, after a few hours' deliberation, the defendant
decided not to retain a lawyer, re-initiated contact with the
officers, was again Mirandized, and confessed. Id. at 413-14.
The Ninth Circuit held that it was impermissible to advise one of
their constitutional rights and then discourage them from
exercising them. Id. at 417. The defendant's subsequent waiver
under Miranda was invalid and the court suppressed his
confession. Id. at 419-20. Here, appellant did not refuse to
make a statement and then agree to do so only after being
encouraged not to exercise that right; rather, appellant
voluntarily consented to make a statement and, thereafter, the
officers made statements which she alleges were coercive. Logic
dictates that appellant could not be coerced to do something that
she had already agreed to do. Therefore, no constitutional error
occurred.
Voice Identification
Due process is violated if the pretrial identification
procedure is "so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification."
Simmons v. United States, 390 U.S. 377, 384 (1968). If an
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identification procedure is deemed impermissibly suggestive, it
must be determined "whether [the] identification[] . . . w[as]
nevertheless so reliable that no substantial likelihood of
misidentification existed." Wise v. Commonwealth, 6 Va. App.
178, 184, 367 S.E.2d 197, 201 (1988) (citing Neil v. Biggers, 409
U.S. 188, 198 (1972)). The factors to be considered in making
this determination are: (1) the opportunity of the witness to
view the criminal at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the witness's prior
description of the criminal; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. Id. at
184-85, 367 S.E.2d at 201.
The application of these factors to this case demonstrates
that no substantial likelihood of a misidentification of
appellant by Steele existed. Here, Steele had the opportunity to
hear appellant speak several times during the robbery. Steele
had a heightened degree of attention during the robbery because
she believed it may have been a security exercise. Although not
asked to provide a detailed description of appellant's voice
prior to the identification, Steele had previously identified the
voice of the robber as belonging to a woman. Steele stated that
when she heard appellant speak at the bond hearing she
immediately knew appellant was the robber. Finally, nine days
passed between the time of the robbery and the identification;
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this is not an impermissibly long period of time. See
Commonwealth v. Vanderlin, 580 A.2d 820 (Pa. Super. 1990) (11
days between perpetration and identification); see also Fogg v.
Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968) (victim
identified defendant at preliminary hearing more than two months
after the crime).
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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