Kenneth Wayne Boothe, Jr. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia
KENNETH WAYNE BOOTHE, JR.
MEMORANDUM OPINION * BY
v. Record No. 1703-96-3 JUDGE JERE M. H. WILLIS, JR.
MAY 27, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
A. Dow Owens, Judge Designate
Charles F. Lincoln for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
On appeal from his conviction for aggravated sexual battery,
Kenneth Wayne Boothe, Jr. contends that the trial court erred in
refusing to suppress statements he made to the police.
Specifically, he argues that the trial court erred in finding:
(1) that he was not in custody at the time he made the
statements, (2) that he was properly advised of his Miranda
rights, and (3) that he did not request an attorney. Because we
find that Boothe was properly advised of his rights and did not
request an attorney, we affirm the conviction.
I.
At the time of the offense, Boothe lived with Norma Jean
Hall and her three-year-old daughter. On the evening of April
10, 1995, Hall's daughter complained that her "pee pee hurt[]."
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Susan McFail, a friend of Hall's, observed blood in the child's
vagina and noticed that the surrounding area was "real red."
Boothe, Hall, and McFail took the child to the emergency room at
10:50 p.m.
Upon arriving at the hospital, Boothe sat in the emergency
room and Hall accompanied her daughter to the examination room.
Police officers and social workers arrived shortly thereafter.
McFail talked with two police officers and a social worker in a
triage room adjacent to the emergency room. After she left the
room, Boothe went in to talk to the police. Boothe gave signed
statements to the police at three separate times: 1:20 a.m.,
3:35 a.m., and 4:20 a.m.
Officer O'Dell conducted the first interview. Officer
Sheffield, two social workers, and possibly another officer were
also present. Helen Frisbie, one of the social workers present,
had known Boothe for approximately ten years. Prior to asking
Boothe any questions, O'Dell explained to Boothe his Miranda
rights through a form which stated:
(a) You have the right to remain silent.
(b) Anything you say can be used against you
in court.
(c) You have the right to talk to a lawyer
for advice before we ask you any
questions and to have him with you
during questioning.
(d) If you cannot afford a lawyer one will
be appointed for you if you wish,
if you are charged with an offense.
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O'Dell orally explained the foregoing rights to Boothe and
further advised him, "At any time that he spoke with us, that he
could choose to stop, and he could choose at any point not to
answer any questions that we asked him. Or, at any point, he
could stop and ask for an attorney."
Boothe testified that he told O'Dell that he could not
afford a lawyer. O'Dell did not recall that statement. He
testified that Boothe never asked for a lawyer and never
expressed a desire to speak with a lawyer before answering
questions. O'Dell testified that had Boothe expressed a desire
to confer with a lawyer, all questioning would have stopped.
O'Dell testified that Boothe stated that he understood his
rights, had no further questions, agreed to talk to the officers
and then signed the waiver form. Boothe was not under arrest at
that time and was free to leave. Dr. Jeff Farrow, a
psychologist, testified that although Boothe was of borderline
intelligence, he was competent to stand trial and capable of
understanding advice of his Miranda rights.
In his first statement, Boothe denied that he had injured
the child. At the conclusion of the first interview, everyone
left the room. O'Dell went to check on the victim. Sheffield
went outside to smoke a cigarette. Boothe left the lobby and
joined Sheffield outside. While outside, Boothe expressed
concern to Sheffield about going to jail. Sheffield replied that
if Boothe had something else he wanted to say, they would listen.
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Boothe told Sheffield that "he may have accidentally touched the
child." Sheffield and Boothe then returned to the triage room.
At the beginning of the second interview, O'Dell informed
Boothe that he was not under arrest, that "[h]e was free to
leave" and that he was "free to not answer questions if he so
desired." Boothe acknowledged that he understood his rights and
stated that he wished to speak with the officers and social
workers. At this point, two social workers and three or four
police officers were present. Boothe gave a second statement at
3:35 a.m., admitting that he had accidentally touched the victim
while bathing her that morning.
O'Dell then left the room. Boothe and Sheffield remained,
discussing "vehicle mechanics or something of that nature."
During their conversation, Boothe told Sheffield that he "felt
better that he had gotten that off his mind," referring to his
statement that he accidentally touched the victim. Sheffield
told Boothe that if there was anything else he wanted to tell
them, they would be "glad to speak with" him. After Boothe told
Sheffield that "there may have been some more injury," Sheffield
contacted O'Dell.
A third statement was taken at 4:20 a.m. O'Dell again asked
Boothe if he understood his rights, and Boothe responded "yes."
Boothe, O'Dell, Frisbie, Sheffield, and another police officer
were present. In response to questioning directed primarily by
Frisbie, Boothe confessed to "touching" the victim on multiple
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occasions. He stated that he was admitting his conduct because
he feared it might lead eventually to "sexual activities."
Boothe was arrested after he gave the third statement.
II.
Assuming, without deciding, that Boothe was in custody when
he gave the statements, we hold that he was given proper and
adequate advice of his rights as required by Miranda v. Arizona,
384 U.S. 436 (1966). Miranda requires that before commencing a
custodial interrogation, the police must inform the suspect that
"he has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires." Miranda, 384 U.S. at 479. No precise form of recital
is required to satisfy the Miranda requirement. Duckworth v.
Eagan, 492 U.S. 195 (1989). A reviewing court need only inquire
whether the warning given reasonably conveyed understanding of
his rights to the suspect. California v. Prysock, 453 U.S. 355,
359 (1981).
The written and oral advice given Boothe satisfied the
Miranda requirement. See Poyner v. Commonwealth, 229 Va. 401,
405, 407-11, 329 S.E.2d 815, 820, 821-23 (1985), cert. denied,
474 U.S. 865 (1985). Boothe's acknowledgment that he understood
his rights, together with Dr. Farrow's testimony that Boothe was
capable of understanding his rights, supports the trial court's
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finding that Boothe did in fact understand his rights and gave
his statements voluntarily.
III.
Boothe next contends that his rights under Miranda were
violated because the police continued to question him after he
invoked his right to counsel. The record does not support this
contention. When Boothe stated that he could not afford an
attorney, O'Dell explained that he could request an attorney at
any time and the questioning would stop. Boothe never asked to
consult an attorney and never expressed the desire to consult an
attorney before answering questions.
In Edwards v. Arizona, 451 U.S. 477 (1981), the United
States Supreme Court prohibited police from continuing to
interrogate a suspect if he has "clearly asserted his right to
counsel." 451 U.S. at 485. Such an assertion must be "clear and
unambiguous" "to invoke the Edwards rule." Midkiff v.
Commonwealth, 250 Va. 262, 266, 462 S.E.2d 112, 115 (1995).
Boothe made no clear and unequivocal request for counsel.
See Davis v. United States, 512 U.S. 452 (1994). Rather, his
statement that he could not afford an attorney and the
accompanying explanation by O'Dell of his right to counsel
"sought to clarify one of the rights of which he had already been
advised." Poyner, 229 Va. at 410, 329 S.E.2d at 823.
Accordingly, there was no requirement that the police stop
questioning Boothe.
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The judgment of the trial court is affirmed.
Affirmed.
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