Brandon Keith Jones v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
BRANDON KEITH JONES
MEMORANDUM OPINION * BY
v. Record No. 1536-01-1 JUDGE LARRY G. ELDER
OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. &
Associates, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Brandon Keith Jones (appellant) appeals from his bench
trial convictions for murder, attempted robbery, conspiracy, and
use of a firearm in the commission of murder or attempted
robbery. On appeal, he contends the trial court's refusal to
suppress his statements to police was erroneous because he made
the statements during a custodial interrogation conducted before
he was informed of his Miranda rights. We hold, under the
totality of the circumstances, that appellant was not in custody
when he admitted, prior to being Mirandized, that he was present
at the scene when the charged crimes were committed and fled
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
with the perpetrator immediately thereafter. Therefore, we
affirm.
On appeal of a denial of a motion to suppress, we view the
evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), holds that "statements stemming from
custodial interrogation are inadmissible unless certain
procedural safeguards effective to secure the privilege against
self-incrimination are provided. Custodial interrogation is
'questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.'" Wass v.
Commonwealth, 5 Va. App. 27, 29-30, 359 S.E.2d 836, 837 (1987)
(quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). "[T]he
issue whether a suspect is 'in custody,' and therefore entitled
to Miranda warnings, presents a mixed question of law and fact
. . . ." Thompson v. Keohane, 516 U.S. 99, 102, 116 S. Ct. 457,
460, 133 L. Ed. 2d 383 (1995). "[W]e 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), but we
review de novo the trial court's application of defined legal
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standards to the particular facts of the case, Ornelas v. United
States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d
911 (1996).
In determining whether a suspect is in custody when
questioned, "[t]he totality of circumstances must be
considered." Wass, 5 Va. App. at 32, 359 S.E.2d at 839. "[T]he
question is not whether a reasonable person would believe he was
not free to leave, but rather whether a person would believe he
was in police custody of the degree associated with formal
arrest." 2 Wayne R. LaFave, Jerold H. Israel & Nancy J. King,
Criminal Procedure § 6.6(c), at 526 (2d ed. 1999). "The
determination 'depends on the 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) (quoting Stansbury v. California, 511 U.S. 318, 323,
114 S. Ct. 1526, 1529, 128 L. Ed. 2d 293 (1994)).
Appropriate factors for consideration include the nature of
the surroundings in which the questioning takes place, "the
number of police officers present, the degree of physical
restraint, and the duration and character of the interrogation."
Wass, 5 Va. App. at 32-33, 359 S.E.2d at 839. Further, "[a]n
officer's knowledge or beliefs may bear upon the custody issue
if they are conveyed, by word or deed, to the individual being
questioned. Those beliefs are relevant . . . to the extent they
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would affect how a reasonable person in the position of the
individual being questioned would gauge the breadth of his or
her 'freedom of action.'" Stansbury, 511 U.S. at 325, 114
S. Ct. at 1530 (quoting Berkemer v. McCarty, 468 U.S. 420, 440,
104 S. Ct. 3138, 3150, 82 L. Ed. 2d 317 (1984)) (other citations
omitted). Thus, where communicated to the suspect, the focus of
the investigation on that suspect, the existence of probable
cause to arrest that suspect, and "'"the extent to which [the
suspect] is confronted with evidence of guilt"'" are also
relevant factors for consideration. Wass, 5 Va. App. at 33, 359
S.E.2d at 839 (quoting United States v. Bautista, 684 F.2d 1286,
1292 (9th Cir. 1982) (quoting United States v. Booth, 669 F.2d
1231, 1235 (9th Cir. 1982))).
The fact that an officer has "[i]nform[ed] a suspect that
he is not in custody and is free to leave" is relevant in the
analysis but "does not necessarily mean that [the suspect] is
not in custody." Wass, 5 Va. App. at 34, 359 S.E.2d at 840
(holding such a statement had little impact where presence of
twelve armed officers to execute search warrant, officers'
manner of arrival, methods used to secure house, and threat to
kill suspect's dog, combined to require finding that reasonable
man in suspect's position would have felt he was not free to
leave). Conversely, "[e]ven a clear statement from an officer
that the person under interrogation is a prime suspect is not,
in itself, dispositive of the custody issue, for some suspects
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are free to come and go until the police decide to make an
arrest." Stansbury, 511 U.S. at 325, 114 S. Ct. at 1530.
The fact that the questioning occurs in a police station or
other "coercive environment" does not automatically render the
interrogation custodial and is simply a factor for inclusion in
the analysis of whether a reasonable person would have believed
he was in custody. See Oregon v. Mathiason, 429 U.S. 492, 495,
97 S. Ct. 711, 714, 50 L. Ed. 2d 714 (1977). Applying this
principle in Oregon v. Mathiason, the Court held a station house
interrogation was not custodial where the accused, a parolee,
came to the station voluntarily, despite the fact that he was
told, falsely, that his fingerprints had been found at the scene
of a burglary. Id. The Court reasoned:
Any interview by one suspected of a crime by
a police officer will have coercive aspects
to it, simply by virtue of the fact that the
police officer is part of a law enforcement
system which may ultimately cause the
suspect to be charged with a crime. But
police officers are not required to
administer Miranda warnings to everyone whom
they question. Nor is the requirement of
warnings to be imposed simply because the
questioning takes place in the station
house, or because the questioned person is
one whom the police suspect. Miranda
warnings are required only where there has
been such a restriction on a person's
freedom as to render him "in custody."
Id.
In a case similar to appellant's, the Ninth Circuit Court
of Appeals concluded a confession given during a station house
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interrogation also was not custodial. Thompson v. Keohane, 145
F.3d 1341, 1341 (9th Cir. 1998). Although the Ninth Circuit's
affirmance in Thompson was "without published opinion," id., the
United States Supreme Court detailed the relevant factual
findings and procedural history in an earlier published opinion
in which it determined only the proper standard for appellate
review and remanded to the Court of Appeals for application of
that standard. Thompson, 516 U.S. at 116, 116 S. Ct. at 467.
In Thompson, the defendant drove himself to the station
house at the request of police, "purportedly" to identify the
belongings of his former wife, who had been stabbed. 516 U.S.
at 102-03, 116 S. Ct. at 460-61. After Thompson identified the
items, he remained at headquarters for two more hours while two
unarmed troopers "continuously questioned him in a small
interview room and tape-recorded the exchange. . . . Although
[the troopers] constantly assured Thompson he was free to leave,
they also told him repeatedly that they knew he had killed his
former wife" and said that searches of his home and his truck
were then being conducted pursuant to a warrant. Id. at 103,
116 S. Ct. at 461. The trial court ruled that Thompson was not
"in custody" for Miranda purposes, id. at 105, 116 S. Ct. at
461-62, and the Ninth Circuit, on remand, presumably applying an
independent standard of review as directed by the Supreme Court,
see id. at 116, 116 S Ct. at 467, affirmed without published
opinion, see 145 F.3d 1341.
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We hold the circumstances in appellant's case were less
likely to lead a reasonable person to conclude he was in custody
than were the circumstances in Thompson. In appellant's case,
although appellant rode to the police station with Detective
Hoffman rather than driving his own vehicle as Thompson did,
Hoffman, unlike the troopers in Thompson, did not use a ruse to
get appellant to the police station and told appellant from the
outset of their encounter that his purpose in asking appellant
to accompany him was so that Hoffman could talk to him about an
incident that occurred in Virginia Beach. 1 Like in Thompson,
Hoffman told appellant repeatedly that he was not under arrest
and was free to leave at any time, both before they arrived in
the interview room and during the interview itself. See also
State v. Northrop, 568 A.2d 439, 444 n.7 (Conn. 1990) (in
Miranda "in custody" determination, minimizing impact of fact
that defendant had no automobile at police station and "was at
the mercy of the police for transportation," given absence of
evidence that police "would not have heeded the defendant's
request to depart at any time and drive him . . . home"). The
entire process, from when Detective Hoffman first telephoned and
1
The use of a ruse was relevant only to the extent that
Thompson may have become aware of it when the troopers began to
question him about his former wife's murder and then only
insofar as it would have impacted a reasonable person's
perception of whether he was in custody. The ruse itself, just
like the ruse Detective Hoffman employed in telling appellant
that his friend admitted he and appellant witnessed the
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met with appellant at his girlfriend's house until appellant was
read his Miranda rights in the interview room at the police
station, lasted only about two hours. See Thompson, 516 U.S. at
103, 116 S. Ct. at 461 (involving two-hour interview); Davis v.
Allsbrooks, 778 F.2d 168, 171 (4th Cir. 1985) (holding two-hour
interview was not excessive because it was "not a marathon
session designed to force a confession"). Appellant agreed to
Detective Hoffman's non-threatening requests for appellant to
accompany him at each stage during the process, and appellant
was not searched or restrained at any time. Detective Hoffman
reminded appellant on multiple occasions during the questioning
that appellant was not in custody and had come to the police
station "on [his] own."
Unlike in Thompson, in which the officers told Thompson
repeatedly that they knew he had killed his former wife,
Detective Hoffman said that appellant probably had been "in the
wrong place at the wrong time," that Hoffman was "not trying to
pin something on [appellant]," and that perhaps appellant's
fingerprint was on the victim's telephone because appellant had
tried to call for help after the shooting. Thus, unlike in
Thompson, Hoffman did not convey to appellant that Hoffman
believed him to be a suspect in the case. Appellant's knowledge
of his actual participation in the events was irrelevant to the
shooting, was irrelevant to the custody determination. See
Mathiason, 429 U.S. at 495-96, 97 S. Ct. at 714.
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determination, for "[t]he 'reasonable person' test presupposes
an innocent person." Florida v. Bostick, 501 U.S. 429, 438, 111
S. Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991) (applying principle
in evaluating whether suspect was illegally seized when he
consented to search). As soon as appellant admitted that one of
his companions was the shooter, he was given his Miranda rights.
Although the Supreme Court in Mathiason, 429 U.S. at 495,
97 S. Ct. at 714, and the trial court in Thompson, 516 U.S. at
104-05, 116 S. Ct. at 461, noted that the accused in each of
those cases was allowed to "leave the police station without
hindrance" at the completion of the interview in which he
confessed, we hold that this fact is without legal significance.
Manifestly, the period of time relevant to determining whether
an individual is in custody is the period before the individual
confesses involvement. As other courts have recognized, whether
a suspect is permitted to leave after confessing to a particular
crime has no bearing on whether his pre-confession presence was
custodial. See, e.g., Barfield v. Alabama, 552 F.2d 1114, 1118
(5th Cir. 1977) (holding fact that defendant in Mathiason was
allowed to leave police station after confessing was not a basis
for distinguishing it from Barfield's case and that
investigating officer "would have been derelict in his duty had
he allowed her to go free"); Roman v. State, 475 So. 2d 1228,
1231-32 (Fla. 1985) (holding that "[c]ertainly the noncustodial
atmosphere leading up to a confession and probable cause would
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thereby be expected to be converted to a custodial one" and that
the "occasions would be rare when a suspect would confess to
committing a murder and then be allowed to leave").
We hold the totality of the circumstances supports the
trial court's ruling that a reasonable person in appellant's
position would not have believed his "freedom of movement [had
been] curtailed to a degree associated with formal arrest" when
he admitted that he was present at the scene of the shooting and
fled with the perpetrator. Berkemer, 468 U.S. at 442, 104
S. Ct. at 3151. Thus, the trial court's refusal to suppress the
statements appellant made before and after being read his
Miranda rights was not error.
For these reasons, we affirm appellant's convictions.
Affirmed.
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