James Edgar Talbert, III v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia
JAMES EDGAR TALBERT, III
MEMORANDUM OPINION * BY
v. Record No. 2145-01-2 JUDGE JERE M. H. WILLIS, JR.
JULY 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Matthew P. Geary for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
James Edgar Talbert, III, was convicted in a bench trial of
second-degree murder, in violation of Code § 18.2-32; use of a
firearm during the commission of a murder, in violation of Code
§ 18.2-53.1; and possession of a firearm by a convicted felon, in
violation of Code § 18.2-308.2. On appeal, he contends that the
trial court erred (1) in partially denying his motion to suppress
evidence; (2) in convicting him of second-degree murder; (3) in
convicting him of using a firearm during the commission of murder;
and (4) in convicting him of possession of a firearm by a
convicted felon. We affirm the judgment of the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND
A. THE SHOOTING
On May 10, 2000, Talbert went to Derrell Farrow's apartment
to pick up some mail. Knowing the neighborhood to be a
high-crime area frequented by drug dealers and having been
robbed twice in that area, he placed a handgun in his back
pocket. Talbert was a previously-convicted felon.
Arriving at Farrow's apartment, Talbert collected his mail
and began looking at some photos that Farrow had taken. While
he was looking at the photos, Farrow made sexual advances toward
him, attempting to fondle his genital area. Talbert told Farrow
to stop. Farrow then asked to perform oral sex on him. Talbert
refused and pulled the handgun out of his back pocket.
Struggling for the weapon, the two men fell onto a sofa.
The handgun discharged, and Farrow suffered a fatal gunshot
wound to the chest. Talbert fled the apartment and drove to
Shana Harvey's apartment on North 35th Street. Before entering
her apartment, he discarded the handgun.
From Harvey's apartment, Talbert contacted the Richmond
Police Department and reported that he had witnessed Farrow's
shooting. He offered to provide information. Soon thereafter,
Detectives Joyce Payne and Lloyd Redford arrived at Harvey's
apartment.
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B. POLICE INVESTIGATION AND INTERVIEW
When the detectives arrived, they asked Talbert what had
happened. According to Detective Redford:
[Talbert] told me that he had been to visit
a friend. While he was in there, he was in
the back bedroom, he heard a knock at the
door, two gentlemen came in, and he heard
one of them tell the victim, give it up.
Another one appeared in the doorway of the
back bedroom, scuffled with him, one of them
tried to take the ring off his finger, and
he got away and ran out the door.
Talbert told the detectives that while fleeing, he heard a
gunshot. He then jumped into his truck and drove away.
Detective Redford went to Farrow's apartment and then
returned to Harvey's apartment. The detectives asked Talbert
and Harvey to accompany them to the police station to put their
statements on tape. Detective Payne told Talbert that he did
not have to go to the station. Detective Payne said, "this is
totally on your own, if you would like to come down." Talbert
and Harvey agreed to go and rode with the detectives to the
police station.
At the police station, Harvey was interviewed first.
During her interview, which lasted twenty to thirty minutes,
Talbert waited outside the interview room, where he was watched
by a uniformed officer. Talbert's interview began at
approximately 5:00 a.m. The detectives asked him initially
whether he minded talking with them. He replied, "ok."
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The interview room was small and was equipped with a round
table and four chairs. Talbert sat at the table. Initially,
the door was closed. Detectives Payne and Redford and Sergeant
Walker questioned Talbert for approximately an hour and a half
to two hours. At various times Talbert was questioned by one,
two, or all three officers and the door was open. At no time
was he told he was not free to leave.
While questioning Talbert, the police began to doubt his
story because of inconsistencies between his account and the
physical evidence. Talbert said four men struggled in the
apartment, but the damage was inconsistent with that claim.
Talbert also said he ran out the apartment's back door, but
there were no fingerprints on the back door. Approximately
halfway through the interview, Detective Payne began considering
whether Talbert should be a suspect.
The officers told Talbert repeatedly that what he was
saying did not match the evidence and that he needed to be
truthful. About an hour into the interview, Detective Redford
decided Talbert was holding back something, but he didn't know
what.
After Talbert was told that the evidence suggested that
only he and Farrow had been in the apartment and that a gunshot
residue test would show that he fired the gun, he recanted his
story. He explained that the gun had discharged accidentally
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when he and Farrow were "scrambling" over it. The following
colloquy ensued:
Talbert: We got to talking when I got
there.
* * * * * * *
Talbert: Didn't want to[;] it wasn't
supposed to happen.
Redford: I'm sure it wasn't. What
happened?
Talbert: It accidentally went off.
Redford: The gun accidentally went off?
Won't nobody in there other than the two of
y'all right?
Talbert: Yeah. We won't gone be no
shooting, that ain't supposed to happen. We
was scrambling and he just squeezed my hand
and it went off.
At that point Talbert had not been advised of his Miranda
rights. 1
Talbert was then handcuffed. A gunshot residue test was
performed and questioning continued. Talbert told the police
that he had left the handgun at an abandoned house on North 35th
Street, near his girlfriend's apartment.
The police took Talbert and Harvey back to North 35th
Street. Their purpose was to take Harvey home and to locate the
handgun. As they were waiting for a key to the abandoned house
where Talbert said he had left the handgun, Harvey pointed to
Patrick Henley, who was walking down the street, and said he had
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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the handgun. Without being asked, Talbert confirmed this.
Henley fled and threw the handgun in a storm drain, from which
it was recovered. The police searched the abandoned house, but
found no weapon. Forensic tests identified the handgun
discarded by Henley as the weapon that killed Farrow.
C. TRIAL
On Talbert's pretrial motion, the trial court suppressed
his statements following the portion recited above. However, it
refused to suppress and received into evidence the recited
portion of his statements and the handgun. It ruled that the
handgun had been found as a result of Harvey's statement, not as
a result of Talbert's statement to police.
Talbert waived his right to a jury trial, testified, and
was convicted of second-degree murder, in violation of Code
§ 18.2-32; use of a firearm during the commission of murder, in
violation of Code § 18.2-53.1; and possession of a firearm by a
convicted felon, in violation of Code § 18.2-308.2.
II. MOTION TO SUPPRESS CONFESSION
"In reviewing a trial court's denial of a motion to
suppress, 'the burden is upon [the defendant] to show that the
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197 487 S.E.2d 259, 261 (1997)
(en banc) (citation omitted). Talbert contends that his Fifth
Amendment rights were violated when the police questioned him
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without informing him of his Miranda rights and that the trial
court erred in partially denying his motion to suppress all of
his statements to the police and the handgun.
"[T]he protection afforded by Miranda applies only when a
suspect is subjected to custodial interrogation." Webber v.
Commonwealth, 26 Va. App. 549, 557, 496 S.E.2d 83, 86 (1998).
In determining whether a person is in custody for Miranda
purposes, we inquire "how a reasonable man in the suspect's
position would have understood the situation." Berkemer v.
McCarty, 468 U.S. 420, 442 (1984). Whether a person is in
custody "depends on objective circumstances of the
interrogation, not on the subjective views harbored by either
the interrogating officers or the person being questioned."
Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257,
262 (1998).
In Burket v. Commonwealth, 248 Va. 596, 450 S.E.2d 124(1994), Burket was asked by police to accompany them to police
headquarters to assist with a double murder investigation.
While still at his residence, he was told that he was not under
arrest and that he was free to leave at any time. Forty minutes
into his interview at police headquarters, he was told falsely
that some children had seen him at the murder scene on the night
of the murders. He was also told that hair samples similar to
his were found at the victim's residence.
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Burket then admitted he was at the scene. He then said,
"I'm gonna need a lawyer." The investigator told him that he
was not under arrest and that he was free to leave. Burket then
stated that he had accidentally killed the victims. Again he
stated he thought he needed a lawyer. At that juncture, he was
arrested and advised of his Miranda rights for the first time.
Id. at 602-604, 450 S.E.2d at 128-29.
The Supreme Court held that Burket was not in custody until
his arrest. It highlighted the portion of his interview where
the officers advised him that he was not under arrest. It
concluded:
Burket was neither formally arrested nor
deprived of his freedom of movement until
after he stated later during the interview
that the murder "was an accident."
Accordingly, we hold that the detectives
were not required to advise Burket of his
Miranda rights when he stated, "I'm gonna
need a lawyer."
Id. at 606, 450 S.E.2d at 130.
In Harris v. Commonwealth, 27 Va. App. 554, 500 S.E.2d 257(1998), we held that Harris was not in custody despite the
presence of three police officers, one of whom had pointed his
gun at Harris for twenty minutes, during which time Harris was
not free to turn around or leave.
Harris was a passenger in a car that was stopped for
speeding and improper lane changes. During the stop, a Virginia
State Trooper asked and received consent from Harris for a
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pat-down search of his clothing. The search disclosed a
pipe-like device. The trooper then questioned Harris, asking
him whether he used the pipe to smoke crack. Harris replied
that he did not smoke crack. The trooper then asked where his
tobacco was located. Harris replied that it was in the car and
showed a tobacco pouch to the trooper. Looking into the pouch,
the trooper discovered a vial of crack cocaine. He then
arrested Harris and advised him of his Miranda rights.
In concluding that Harris was not in custody until he was
arrested, we said:
[a]mong the circumstances to be considered
when making a determination of whether a
suspect was "in custody" are (1) the manner
in which the individual is summoned by the
police, (2) the familiarity or neutrality of
the surroundings, (3) the number of officers
present, (4) the degree of physical
restraint, (5) the duration and character of
the interrogation, and (6) the extent to
which the officers' beliefs concerning the
potential culpability of the individual
being questioned were manifested to the
individual. No single factor is dispositive
of the issue.
Id. at 565, 500 S.E.2d at 262. We continued:
We conclude that [Harris] was not entitled
to Miranda warnings prior to the questioning
by Trooper Watts that led to the discovery
of the cocaine. At the time of Trooper
Watts' questioning, appellant's detention
had been transformed from one whose purpose
was to protect officer safety and maintain
the status quo during a traffic stop to a
Terry stop whose purpose was to investigate
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the appellant for suspected drug-related
criminal activity.
Id. at 567, 500 S.E.2d at 263.
As in Burket and Harris, Talbert was not in custody for
Miranda purposes until he admitted shooting Farrow and was
handcuffed. Until that time, his Fifth Amendment rights were
not violated. Although the police doubted his story, "[t]he
fact that the investigation had focused upon [Talbert] and had
become accusatory is not determinative of the question of
custody." Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d
135, 142 (1978). Talbert remained at the police station
voluntarily. He was not told that he could not leave. At
times, the door to the interview room was open. He was not
restrained. Only when he admitted shooting Farrow and was
arrested and handcuffed did his presence cease to be voluntary.
Until that time, no reasonable person in his situation would
have believed that he was not free to leave.
Furthermore, Talbert waived his Fifth Amendment rights when
he took the witness stand at trial. He admitted taking the
handgun to Farrow's apartment. He admitted presenting the
handgun to rebuff Farrow's sexual advances. He acknowledged
that Farrow was shot during the ensuing struggle. He testified
to everything that was included in the unsuppressed portion of
his statement to the police, including the location of the
firearm.
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III. MOTION TO SUPPRESS THE FIREARM
Talbert next contends that the trial court erred in
refusing to suppress the handgun, which he argues was obtained
as a result of unlawful questioning. We disagree.
At the time the handgun was recovered, the police had
returned Talbert and Harvey to North 35th Street. Talbert
contends that the police officers were going to the location
where he had told them the handgun was hidden. However, viewed
in the light most favorable to the trial court's ruling, the
evidence disclosed that the police were then taking Harvey home.
At that time, she saw Henley walking down the street and told
the officers that he had the handgun. The handgun was then
recovered.
In recovering the gun, the police relied on Harvey's
statement, not on the statements made by Talbert during his
questioning. Thus, the trial court did not err in admitting the
gun into evidence. See Murray v. United States, 487 U.S. 533,
542 (1988).
IV. SUFFICIENCY OF THE EVIDENCE
The fact that Talbert carried the handgun to Farrow's
apartment and produced it as a show of force supports a finding
of malice. Consequently, all the evidence, including Talbert's
own testimony, supports his conviction for second-degree murder,
from which flow his convictions for possession of a firearm by a
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convicted felon and use of a firearm during the commission of
murder.
The judgment of the trial court is affirmed.
Affirmed.
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