Beverly Ann Monroe v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia
BEVERLY ANN MONROE
v. Record No. 2604-92-2 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA MAY 2, 1995
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Peter D. Greenspun (Gary Moliken; Thomas Peter Mann;
Peter D. Greenspun & Associates, P.C., on briefs),
for appellant.
John H. McLees, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Beverly Ann Monroe was convicted in a jury trial of first-
degree murder and use of a firearm in the commission of a felony.
She was sentenced to twenty years in the penitentiary for the
murder and two years for the firearm conviction.
She raises five issues on appeal. She contends that the
trial court erred by: (1) failing to suppress her involuntary
statements to a police officer, (2) advising the jury that her
statements were voluntary, (3) admitting her statements taken in
violation of her Sixth Amendment right to counsel, (4) allowing
testimony of a witness to be admitted in evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963), and (5) denying her
motions to strike the evidence and to set aside the jury
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
verdicts. For the following reasons, we affirm the judgments of
the trial court.
On the morning of March 5, 1992, Roger de la Burde, was
found dead in his home on his estate in Powhatan County. He died
from a single gunshot wound to the head, inflicted by a large
caliber handgun, which was found beside de la Burde's hand. The
estimated time of his death was 10:35 p.m. on March 4, 1992.
Beverly Monroe, the appellant, had known de la Burde for
thirteen years. She had been his lover for eleven years. During
the investigation of de la Burde's death, it first appeared to
the authorities, based upon Monroe's words and actions, that when
she had arrived at de la Burde's home on the morning that he was
found dead, she had no prior knowledge that de la Burde might be
dead. However, on March 26, Monroe told a Virginia State Police
investigator that she remembered being at de la Burde's home on
the night he died and falling asleep opposite where de la Burde
was resting on a sofa. She told the officer she remembered being
suddenly awakened by a loud noise. Finding de la Burde dead on
the sofa, she said she left the house in shock.
On June 3, while meeting with the same investigator, she
recanted her earlier statement about being with de la Burde when
he died and said she thought her recollections were a dream.
Later, Monroe signed a written statement in which she again
acknowledged that she was present at de la Burde's home when she
heard a loud noise, awoke, and found de la Burde dead.
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I.
Monroe first contends that the trial court erred by
admitting the various statements that she made to the police
investigator on March 26 and June 3 because the statements were
involuntary.
At trial, Monroe filed the following motion to suppress the
statements:
This day came the Defendant, Beverly A.
Monroe, by counsel, and moved the Court to
suppress any and all statements that she made
to State Police Investigator David Riley on
the grounds that she was not advised of her
constitutional rights at a time when the
investigation had focused on her and the case
was in the accusatory stage, which was
contrary to the mandates of Miranda v.
Arizona, 304 U.S. 436 (1966), the Fifth and
Fourteenth Amendments of the Constitution of
the United States as well as Article I,
Section 8 of the constitution of the
Commonwealth of Virginia.
After the verdicts, Monroe moved to set aside the jury's
verdicts, which motion stated:
1. That the Court improperly overruled
the Motion to Suppress filed by the Defendant
and admitted the statement of Ms. Monroe
taken on June 3, 1992 when the investigation
was clearly in the accusatory stage and the
Defendant considered herself in custody and
at which time she was not advised of her
constitutional rights by Investigator David
Riley.
At trial when Monroe's statements were presented into
evidence, she again objected on the same ground set forth in the
written motions, which was that she was not informed of her
constitutional rights to counsel and to refuse to answer
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questions during a custodial interrogation.
Rule 5A:18 requires that objections to a trial court's
action or ruling be made with specificity in order to preserve an
issue for appeal. Campbell v. Commonwealth, 12 Va. App. 476,
489, 405 S.E.2d 1, 2 (1991). A trial court must be alerted to
the precise "issue" to which a party objects. See Neal v.
Commonwealth, 15 Va. App. 416, 422-23, 425 S.E.2d 521, 524-25
(1992). The objecting party has a duty "to state the grounds of
his objection so that the judge may understand the precise
question or questions he is called upon to decide. The judge is
not required to search for objections which counsel have not
discovered, or which they are not willing to disclose." Jackson
v. Chesapeake & Ohio Ry. Co., 179 Va. 642, 651, 20 S.E.2d 489,
492-93 (1942); Simmons v. Commonwealth, 6 Va. App. 445, 450, 371
S.E.2d 7, 10 (1988).
At trial, Beverly Monroe's motions and objections to the
statements were based solely upon the ground that the statements
were obtained during a custodial interrogation without being
apprised of her Miranda rights. Now, for the first time on
appeal, she argues that the statements were factually
involuntary. Whether an individual is in custody for the
purposes of Miranda is a distinct and separate issue from whether
a statement is made voluntarily. Because Monroe did not raise at
trial the issue whether the statements were voluntary, we will
not consider that question on appeal. Whether Monroe's statement
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was the "product of an essentially free and unconstrained
choice," that is, whether it was voluntary, was not raised. The
trial judge did not consider or rule upon that issue. Without
the issue having been raised, the Commonwealth had no reason or
opportunity to develop the evidence on that question. Thus, Rule
5A:18 precludes consideration of the issue of voluntariness of
the statement. No good cause exists, nor do the ends of justice
require that we address the question on appeal. See Mounce v.
Commonwealth, 4 Va. App. 433, 435-36, 357 S.E.2d 742, 744 (1987).
II.
The appellant next contends that the court improperly told
the jury that her statements to the police officer were
voluntary, rather than allowing the jury to consider and make
that determination. At trial, Monroe objected to the admission
into evidence of a statement, which was written by Detective
David M. Riley allegedly recounting Monroe's verbal account to
him, and signed by the appellant. The objections were that the
detective was "testifying in narrative form," that his testimony
and the statement were hearsay, and the signed document was not a
"statement" from the accused. The following exchange took place:
MR. JANUS: I think the objection should be
partially overruled on the representation she gave a
written statement.
I submit to the Court she did not give a written
statement.
THE COURT: Call it what you want, I am going to
let it come in. I think it's a statement, apparently
one that he wrote and she initialed or something.
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MR. JANUS: Yes, sir, he wrote it out asked her to
sign it. Told her.
THE COURT: We will have it before the jury and
they can call it what they would like. One written by
him, initialed by her or whether it is by her.
* * * * * * *
THE COURT: I don't think there is any reason to
go further without the jury being here. I understand
what the proffer is, and all the proffer has been to
all these things outlined to her, and she responded.
I think it's a statement, voluntary statement. I
have already ruled on that. It's admissible.
I want the witness to proceed.
The appellant contends that the trial judge's comment, "I
think it's a statement, voluntary statement," improperly
instructed the jury that they were required to find that Monroe's
statement was voluntary. The appellant did not, however, object
to the trial court's remarks. One purpose of the contemporaneous
objection rule is to enable trial courts to correct errors that
may occur during trial. See Mounce, 4 Va. App at 436, 357 S.E.2d
at 744. Although the appellant objected to the introduction of
the statement into evidence, she did not object to the trial
judge's comment.
On appeal, we consider only those issues for which a
contemporaneous objection is made, except for good cause shown or
when necessary to avoid a miscarriage of justice. Rule 5A:18;
Knight v. Commonwealth, 18 Va. App. 207, 216, 443 S.E.2d 165, 170
(1994). Because the appellant did not object to the trial
judge's comment, and because no good cause exists to consider the
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issue, nor must we do so to attain the ends of justice, we are
procedurally barred from reviewing whether the comment was
proper.
III.
Monroe next contends that she was denied her Sixth Amendment
right to counsel. She asserts that during the June 3 meeting
with Investigator Riley, the Commonwealth had moved beyond the
investigatory stage because the Commonwealth's attorney had made
the decision to indict her although no formal charges had been
lodged.
On June 3, 1992, Officer Riley arranged to meet with Beverly
Monroe at a park. Investigator Riley told her that the
Commonwealth's attorney was going to indict her. During this
meeting, Monroe gave the officer the statement which she contends
should have been suppressed because she contends it was made when
she was entitled to and denied counsel.
A defendant's Sixth Amendment right to counsel does not
attach until a prosecution is commenced "by way of formal charge,
preliminary hearing, indictment, information or arraignment."
Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 541
(1994) (quoting Brewer v. Williams, 430 U.S. 387, 398 (1977)). A
police officer arranging to meet with a suspect and informing the
suspect that she will be indicted on a future date does not
commence a criminal prosecution. Therefore, because no formal
prosecutorial proceeding had been initiated, no Sixth Amendment
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right to counsel existed.
IV.
Monroe next contends that the trial judge erred by admitting
into evidence the testimony of Zelma Smith, who testified that
Monroe had contacted her ten months before de la Burde's death to
inquire how Monroe could obtain an unregistered firearm. The
appellant contends that the testimony of Zelma Smith was
irrelevant and prejudicial and improperly admitted. We disagree.
Evidence must be relevant to be admissible. Hughes v.
Commonwealth, 16 Va. App. 576, 602, 431 S.E.2d 906, 922 (1993)
(Coleman, J., concurring and dissenting) (aff'd en banc, 18 Va.
App. 510, 446 S.E.2d 451 (1994)). In order to be relevant,
evidence must tend to prove a material fact or element of the
charged offense. Johnson v. Commonwealth, 2 Va. App. 598, 601,
347 S.E.2d 163, 165 (1986). Every fact, however remote or
insignificant, that tends to establish the probability or
improbability of a fact in issue is admissible. Epperly v.
Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982).
Evidence which is relevant is admissible unless its prejudicial
effect outweighs its probative value. Wilkins v. Commonwealth,
18 Va. App. 293, 298, 443 S.E.2d 440, 443 (1994) (en banc). The
decision of a trial court balancing probative value of evidence
against its prejudicial tendency will not be disturbed on appeal
absent a clear abuse of discretion. Ferrell v. Commonwealth, 11
Va. App. 380, 390, 399 S.E.2d 614, 620 (1990).
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Zelma Smith's testimony proved that within a time period
relatively close to when Roger de la Burde was murdered, and at a
time when Monroe had a reason or motive for wanting to do him
harm, she inquired from a relative stranger how and where she
could obtain an untraceable handgun. The evidence was relevant
because it showed that Monroe had a desire and had made an effort
to obtain a firearm for some purpose. The fact that Monroe
sought to obtain a deadly weapon that could not be traced to her
was relevant to prove that she attempted to obtain the means to
inflict death or serious bodily harm to another at a time when
she had a reason or motive for wanting to do so. The fact that
she was present at the time of de la Burde's death and had given
false and conflicting accounts of what occurred tends to enhance
the relevance of the evidence. The trial court did not abuse its
discretion by admitting the testimony of Zelma Smith that Monroe
attempted to purchase an untraceable, concealable handgun within
ten months of Roger de la Burde's murder.
Monroe next contends that Zelma Smith's testimony should
have been excluded because the Commonwealth failed to disclose
during discovery, in violation of Brady v. Maryland, 373 U.S. 83
(1963), the terms of a bargain between the Commonwealth and
Smith, a convicted felon, that she would not be prosecuted for
possessing a firearm.
No general constitutional right to discovery exists in a
criminal case. Weatherford v. Bunsey, 429 U.S. 545, 555 (1977).
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However, the Commonwealth has a duty to assure that justice is
served in prosecuting every criminal case, and in furtherance of
that duty, the Commonwealth must disclose to a defendant
exculpatory evidence which it has. Brady, 373 U.S. at 87. A
criminal prosecution is not a debate or an academic exercise, and
the state cannot withhold evidence that tends to exculpate or is
favorable to an accused. Id.
"Bias as a form of impeachment is considered exculpatory and
falls within the Brady requirement to disclose." United States
v. Bagley, 473 U.S. 667, 676 (1985). An agreement between a
witness and the prosecuting authorities shows a relationship that
has the potential for bias; therefore, proof of the terms of an
agreement between a witness and the Commonwealth is admissible
for that purpose. Moreno v. Commonwealth, 10 Va. App. 408, 415,
392 S.E.2d 836, 842 (1990).
Nevertheless, where there has been a failure to disclose
discoverable evidence, an appellant must affirmatively show how
he or she was prejudiced by the Commonwealth's failure to
disclose exculpatory evidence before the violation is reversible
error. Stotler v. Commonwealth, 2 Va. App. 481, 484, 346 S.E.2d
39, 40-41 (1986).
Late disclosure does not take on
constitutional proportions unless an accused
is prejudiced by the discovery violations
depriving him of a fair trial. So long as
exculpatory evidence is obtained in time that
it can be used effectively by the defendant,
and there is no showing that an accused has
been prejudiced, there is no due process
violation. It is the defendant's ability to
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utilize the evidence at trial, and not the
timing of the disclosure, that is
determinative of prejudice.
Moreno, 10 Va. App. at 417, 392 S.E.2d at 842. See Davis v.
Commonwealth, 230 Va. 201, 204-05, 335 S.E.2d 375, 377-78 (1985).
Beverly Monroe has made no showing as to how she was
prejudiced by the late disclosure at trial during Zelma Smith's
testimony of the fact that Zelma Smith had an agreement with the
Commonwealth that she would not be prosecuted for possessing a
firearm as a convicted felon. After the prosecutor elicited from
Smith the fact that she had an agreement with the Commonwealth
and the details thereof, the appellant did not object to Zelma
Smith's testimony. Insofar as the record indicates, Beverly
Monroe was able to utilize the exculpatory evidence elicited by
the Commonwealth concerning the terms of the agreement and the
fact that Smith was a convicted felon for the purposes of
impeachment, the same as had the evidence been produced during
discovery. See Robinson v. Commonwealth, 231 Va. 142, 152, 341
S.E.2d 159, 165 (1986). We do not condone discovery violations,
and when they occur, trial courts should impose appropriate
sanctions even when the violation does not require that evidence
be suppressed. However, nothing in the record leads us to
conclude that had the defense known earlier that Smith would be a
witness and known the terms of the agreement, the defense could
have used that evidence more effectively or meaningfully.
Accordingly, the record does not show that Monroe was prejudiced
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by the Commonwealth's failure to timely disclose the exculpatory
evidence.
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V.
Monroe contends that the evidence is insufficient as a
matter of law to support her convictions. When reviewing the
sufficiency of the evidence, an appeals court discards all
evidence of the accused in conflict with the credible evidence of
the Commonwealth and regards as true all credible evidence
favorable to the Commonwealth, according to it all reasonable
inferences that may be drawn therefrom. Parks v. Commonwealth,
221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450
U.S. 1029 (1981). The evidence is sufficient for the jury to
have concluded beyond a reasonable doubt that Roger de la Burde
was murdered and that Beverly Monroe was the murderer.
The jury necessarily found that de la Burde's death was a
homicide and not a suicide. Forensic experts testified that when
the handgun was fired, the muzzle of the gun was near, but not
touching, the far upper corner of de la Burde's forehead, so that
the bullet travelled in a downward trajectory. The medical
examiner testified that the wound was located in a place uncommon
for a self-inflicted suicide shot and that, due to the location
of the wound and the position of how the gun would have been
fired, most likely, de la Burde did not fire the weapon.
According to evidence of de la Burde's usual sleeping position,
his body was in the position as though he were sleeping when he
died.
Other evidence showed that de la Burde was excited about the
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possibility of fathering a child, that he was anxious to pursue a
real estate deal, and that he was arranging detailed meetings and
plans to take place in the days and weeks after he died. From
the evidence, the fact finder could conclude that de la Burde had
no reason or inclination to commit suicide and that his death was
a homicide, not a suicide.
The evidence also supported the jury's finding that Beverly
Monroe was the criminal agent who killed de la Burde. Monroe had
been intimately involved with de la Burde for eleven years before
his death. She recently had discovered that de la Burde was
having an affair with a younger woman. De la Burde, who had made
known his desire to have a male child, had drawn up a "baby
agreement," which he had discussed with the "other" woman who was
to have his son. Monroe discovered the existence of the
agreement. Ten months before de la Burde's murder, Monroe had
attempted to obtain an unregistered, concealable handgun.
Monroe admitted being at de la Burde's house at the time of
his death, but claimed she was asleep and awoke only upon hearing
the noise of the gun. She had given false and conflicting
statements about having been there when de la Burde was killed.
Monroe knew where de la Burde kept his handgun, the same gun with
which he was shot. She knew de la Burde had been considering
making a new will. On the day that the grounds keeper found de
la Burde's body, Monroe had appeared at de la Burde's home
indicating to the grounds keeper that she could not get de la
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Burde to answer his door and could not gain entry to the house.
Monroe told the grounds keeper that she had been unable to
telephone de la Burde from the stable because the door was
locked, but he testified that the door was never locked. The
evidence also showed that Monroe had a key to de la Burde's
house. The Commonwealth proved beyond a reasonable doubt that
the circumstances of time, place, motive, means, opportunity, and
conduct concurred in linking Beverly Monroe to the crime. See
Potts v. Commonwealth, 12 Va. App. 1093, 1097, 408 S.E.2d 256,
258 (1991). The evidence is sufficient to support the
appellant's convictions.
We affirm the appellant's convictions.
Affirmed.
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