Marshall Lee Adair v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
MARSHALL LEE ADAIR
v. Record No. 0795-95-4 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 5, 1996
FROM THE CIRCUIT COURT OF BLAND COUNTY
Kenneth I. Devore, Judge Designate
Byron R. Shankman, for appellant.
Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
Following a jury trial in Bland County Circuit Court, the
appellant, Marshall Lee Adair, was convicted of eluding the
police. On appeal, Adair contends the trial court erred in
overruling his motion to suppress a statement he made to the
police and in failing to instruct the jury on reckless driving
and improper driving. Finding no error, we affirm the
conviction.
The relevant facts follow. Virginia State Trooper James
Timothy Graham was seated in his patrol car operating radar
equipment in Bland County when, a little after midnight, he
witnessed two vehicles pass his vehicle, travelling side by side
at ninety-three miles per hour. Graham immediately activated his
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
blue lights and siren and pursued the vehicles. As he did, the
driver of one of the vehicles, Matthew Morehead, pulled over.
Adair, driving the other vehicle, increased his speed and
continued driving with Graham in pursuit.
As Graham gave chase, he observed the lights of Adair's
vehicle extinguish. Graham continued following Adair,
periodically losing sight of the vehicle, until, coming around a
hump and curve in the road, Graham observed the vehicle wrecked
over an embankment at a private driveway where a friend of
Adair's lived.
When Graham arrived, Adair was trying to exit, and his
passenger, who had already exited, appeared primed to run.
Unfamiliar with the vehicle and its occupants, Graham drew his
weapon and advised the men to stop. Graham had Adair exit the
vehicle. Alone and concerned for his safety, Graham decided to
handcuff one of the men temporarily so he could check for
weapons. Graham handcuffed Adair and ordered both men to lie
down. After finding neither of the men possessed a weapon,
Graham released Adair from the handcuffs. At that point, three
or four other police officers arrived, one of whom summoned a
police dog.
Graham advised Adair that he had to investigate the
accident. Pursuant to the accident form he was required to
prepare, Graham asked Adair what caused the wreck. Adair
responded that
as I came out of the tunnel and Matt, and
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Matt Morehead, we got beside each other, we
got beside each [sic] and sped up racing, we
came and saw a car on the side of the road
and after we went down the road, I got off at
South Gap and went on 52, I panicked because
I seen you, seen your lights and I tried to
stop and the car went off the road.
As a result of his accident investigation, Graham issued Adair
four summonses for traffic violations.
Adair objected to the admission of his statement, arguing
that it was made in violation of his Miranda rights. However,
Graham testified that Adair was not under arrest at the time he
made the statement. Graham testified that his investigation
focused on the accident, not the violations, and that Adair was
free to leave at the end of the accident investigation. The
trial court overruled Adair's motion.
Graham was charged with "racing on highway (reckless)
driving" and "reckless driving (eluding) (police)." At the close
of the Commonwealth's evidence at trial, Adair made a motion to
merge the two charges into "one incident of reckless driving
rather than two." The court granted Adair's motion, but merged
the charges into "one charge of eluding the police."
In proffering jury instructions and verdict forms, the
Commonwealth made clear that it pursued only the charge of
"eluding the police." Adair did not object to the Commonwealth's
instruction, notwithstanding the fact that it did not state the
law on the reckless driving charge. Adair also failed to proffer
a defense instruction on the charge.
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Instead, Adair subsequently urged the trial court to submit
to the jury his proposed verdict form which reflected a finding
of "improper driving," a lesser included offense of the "reckless
driving/eluding police charge" charge. The Commonwealth
reiterated that it proceeded solely on the charge of eluding the
police, not the charge of reckless driving, and argued that
Adair's proffered verdict form was improper. The court declined
to accept Adair's verdict form and submitted the case to the jury
solely on the charge of eluding the police.
I
"Miranda warnings are required whenever a suspect is subject
to ``custodial interrogation.'" Cherry v. Commonwealth, 14 Va.
App. 135, 140, 415 S.E.2d 242, 244 (1992) (quoting Miranda v.
Arizona, 384 U.S. 436, 444 (1966)). Clearly, not every detention
constitutes "custody" for purposes of Miranda; rather, a person
is in "custody" once "``there is a formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.'" Id. at 140-41, 415 S.E.2d at 245 (quoting California
v. Beheler, 463 U.S. 1121, 1125 (1983) (other citation omitted)).
Whether a detention amounts to a custodial interrogation for
purposes of Miranda depends on all of the circumstances
surrounding the detention. Id. (citing Berkemer v. McCarty, 468
U.S. 420, 442 (1984)).
Miranda does not apply to a police officer's "general
questioning" in the course of the fact-finding process. Pruett
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v. Commonwealth, 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986), cert.
denied, 495 U.S. 940 (1990). Neither the location of the
interrogation nor the use of protective measures by police
officers for their safety and security will necessarily give rise
to a finding that the environment is custodial in nature. Id.;
Burket v. Commonwealth, 248 Va. 596, 605, 450 S.E.2d 124, 129
(1994), cert. denied, 115 S. Ct. 1433 (1995); Thomas v.
Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993),
aff'd on reh'g en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994)
(quoting United States v. Crittendon, 883 F.2d 326, 329 (4th Cir.
1989))(the use of handcuffs alone "``[does] not convert a stop and
frisk into an arrest so long as the methods of restraint used are
reasonable to the circumstances.'") Cf. Wass v. Commonwealth, 5
Va. App. 27, 34, 359 S.E.2d 836, 840 (1987)(police officers' use
of protective measures employed for their safety and security may
give rise to a custodial situation for Miranda purposes if they
"produce a coercive environment and restrict a suspect's freedom
of movement to the degree associated with a formal arrest").
Other factors the court may consider in determining whether
a person is subject to "custodial interrogation" are whether a
police officer informed the individual that he or she is not
under arrest, Wass, 5 Va. App. at 33, 359 S.E.2d at 840 (1987)
(quoting Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir.
1985)), and whether the individual knows or has been apprised of
the nature of the investigation. Cherry, 14 Va. App. at 139, 415
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S.E.2d at 244. The court may also consider the point at which
the suspect "becomes the focus of the investigation." Wass, 5
Va. App. at 33, 359 S.E.2d at 839.
In evaluating the various factors, "the situation must be
viewed from the vantage point of ``how a reasonable [person] in
the suspect's position would have understood his situation.'"
Novak v. Commonwealth, 20 Va. App. 373, 385, 457 S.E.2d 402, 408
(1995) (quoting Wass, 5 Va. App. at 32, 359 S.E.2d at 839) (other
citation omitted)). On review, this Court considers the evidence
in the light most favorable to the Commonwealth and will affirm
the trial court's findings unless unsupported by the record. Id.
The record in the case supports the trial court's finding
that Adair was not in custody at the time he made his statement.
It is not disputed that Graham detained Adair as a necessary
protective measure, that the detention was relatively minimal and
that it was kept in place only as long as necessary for Graham to
secure his safety. Cf. Wass, 5 Va. App. at 34, 359 S.E.2d at
1
840. Moreover, the handcuffs were removed before questioning
1
In Wass, the Court found that the suspect
was confronted by at least twelve officers,
all armed, some of whom were carrying
shotguns, arriving in two trucks and a
helicopter. The trucks were parked at the
driveway gate, and some of the officers
surrounded the house. Wass was ordered to
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began. Although Graham received backup from three or four other
officers, the evidence also supports the court's implicit finding
that the backup was insufficient to elevate Adair's detention to
(..continued)
secure his dogs. One was confined in a car,
and an officer threatened to kill the other
if Wass could not control him. Commander
Reynolds directed his officers to form an
"exterior perimeter" around the house. Two
more officers were stationed at the door of
the house, and while all of these steps were
taken to "prevent the second dog . . . from
coming back and possibly injuring one of the
officers," the record indicates that the
officers stayed in position after the
second dog had been secured. The record
portrays a situation in which the police
officers, through an impressive display
of force and manpower, seized control of
Wass's private residence and secured the
premises in a manner suggestive of a military
maneuver . . . . The atmosphere was exactly
the type of police dominated environment
described in Miranda.
Id.
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"custody." Id.
Moreover, the evidence shows that Adair was questioned as
the driver of the vehicle involved in a traffic accident, not as
a "criminal suspect." See Nash v. Commonwealth, 12 Va. App. 550,
404 S.E.2d 743 (1991). Graham never placed Adair under arrest,
and he informed Adair that he was investigating the accident.
Finally, even assuming Adair's Miranda rights were violated,
the erroneous admission of his statement was harmless beyond a
reasonable doubt. The evidence in the case establishes that
Adair raced down the highway ninety-three miles per hour and
refused to pull over when Graham activated his lights and siren.
Adair attempted to elude Graham by turning his lights off.
Morehead testified that he and Adair had been speeding side by
side down the highway passed Graham. He stated that Adair did
not stop when Graham activated his siren and flashing blue
lights. Based on this evidence, the jury could find Adair guilty
beyond a reasonable doubt.
II
Adair also contends that the trial court erred by failing to
instruct the jury on reckless driving and/or improper driving.
However, it is clear from the record that Adair failed to ask the
court for either a reckless driving or improper driving
instruction. For this reason, Adair is procedurally barred from
raising the issue on appeal. See Rule 5A:18.
Moreover, "an accused is not entitled to an instruction ``on
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an offense which is not a lesser included offense of the one with
which he or she is charged.'" Crump v. Commonwealth, 13 Va. App.
286, 290, 411 S.E.2d 238, 241 (1991) (quoting Taylor v.
Commonwealth, 11 Va. App. 649, 651, 400 S.E.2d 794, 795 (1991)).
The case was submitted to the jury solely on the charge of
"eluding the police." While improper driving may be a lesser
included offense of reckless driving, see Code § 46.2-869, 2 it is
not a lesser included offense of eluding a police officer. See
Shaw v. Commonwealth, 9 Va. App. 331, 334, 387 S.E.2d 792, 794
(1990) (reckless driving and eluding a police officer are
distinct offenses).
Accordingly, Adair's conviction is affirmed.
Affirmed.
2
Code § 46.2-869 provides, in part:
upon the trial of any person charged with
reckless driving where the degree of
culpability is slight, the court in its
discretion may find the accused not guilty of
reckless driving but guilty of improper
driving.
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