Roy Lawrence Latta, Jr v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
ROY LAWRENCE LATTA, JR.
MEMORANDUM OPINION * BY
v. Record No. 1349-01-2 JUDGE G. STEVEN AGEE
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Robert R.
Meeks, Senior Assistant Public Defender, on
brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Roy Lawrence Latta, Jr. (Latta), was convicted in the
Lunenburg County Circuit Court of possession of cocaine with
intent to distribute, in violation of Code § 18.2-248, and
possession of marijuana with intent to distribute, in violation
of Code § 18.2-248.1(a)(1). Latta was sentenced to serve a term
of twenty-three months incarceration. On appeal, Latta contends
the trial court erred by (1) denying the motion to suppress his
confession and (2) finding the Commonwealth's evidence
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sufficient for conviction. For the following reasons we affirm
the judgment of the trial court. 1
I. MOTION TO SUPPRESS
Latta contends the trial court erred by denying his motion
to suppress the confession he made after his arrest in which he
admitted that he knowingly possessed the cocaine and marijuana
(the narcotics) discovered in a search of his home. Latta
contends the trial court should have suppressed his confession
because (1) he was subjected to interrogation after he invoked
his right to counsel and (2) his confession was a result of
coercion. We disagree and hold the trial court properly denied
the motion to suppress.
On appeal from a trial court's ruling on a motion to
suppress
[w]e view the evidence in the light most
favorable to the prevailing party, [the
Commonwealth in this case,] granting to it
all reasonable inferences fairly deducible
therefrom. We review the trial court's
findings of historical fact only for "clear
error," but we review de novo the trial
court's application of defined legal
standards to the particular facts of a case.
Harris v. Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257,
260 (1998). So viewed, the evidence supports the trial court's
1
As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
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findings that Latta, having waived his Miranda rights, did not
invoke his right to counsel and his confession was not coerced.
A. MIRANDA WAIVER AND RIGHT TO COUNSEL
Prior to the search of his home, Latta was advised of his
Miranda rights and signed a written waiver. Upon discovery of
the drugs and his arrest, Latta was twice advised orally of his
Miranda rights. Yet again, upon arrival at the police station,
Latta received two more Miranda warnings and signed two
additional written waivers.
It is clear that the arresting officers repeatedly informed
Latta of his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), and that Latta waived those rights prior to making his
confession. If, however, Latta invoked his right to have
counsel present during his interrogation, "a valid waiver of
this right cannot be established . . . even if he has been
advised of his rights." Quinn v. Commonwealth, 25 Va. App. 702,
711, 492 S.E.2d 470, 475 (1997) (citing Edwards v. Arizona, 451
U.S. 477, 484 (1981); Eaton v. Commonwealth, 240 Va. 236, 252,
397 S.E.2d 385, 395 (1990); Hines v. Commonwealth, 19 Va. App.
218, 221, 450 S.E.2d 403, 404 (1994)).
Latta contends he was subjected to interrogation after he
invoked his right to counsel and any waiver of that right is
invalid. We find no support in the record for this contention.
We find that Latta, having waived his Miranda rights, did not
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invoke his right to have counsel present and he voluntarily
waived his Miranda rights.
The invocation of the right to counsel must be clear and
unequivocal. Davis v. United States, 512 U.S. 452, 458-60
(1994); Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d
112, 115 (1995) (assertion must be "clear and unambiguous");
Eaton, 240 Va. at 253-54, 397 S.E.2d at 395-96 (holding that a
suspect must assert his right to counsel clearly). Latta
contends he invoked his right to counsel when he informed
Officer Vaughan that he was calling his lawyer while seated in
the police car. However, the trial court found that Latta did
not complete this call and never advised any officer that he
wanted to speak with an attorney.
Latta's action of simply telling a police officer that he
was calling his lawyer does not amount to a clear and
unequivocal request for counsel. See Midkiff, 250 Va. at
265-68, 462 S.E.2d at 114-15 (a suspect's remark during
interrogation that he was "scared to say anything without
talking to a lawyer" was held not to be a clear and unequivocal
invocation of the right to counsel).
B. VOLUNTARY CONFESSION
Latta also contends his confession was a result of coercion
and, for that reason, should have been suppressed. He alleges
Chief Dayton threatened to arrest his wife if he did not confess
to knowingly possessing the narcotics. The evidence in the
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record does not support this allegation, and we hold Latta's
confession was voluntarily made.
At trial, "[t]he Commonwealth has the burden to prove, by a
preponderance of the evidence, that a defendant's confession was
freely and voluntarily given." Bottenfield v. Commonwealth, 25
Va. App. 316, 323, 487 S.E.2d 883, 886 (1997). The
voluntariness issue is a question of law requiring an
independent determination on appeal. E.g., Wilson v.
Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992).
"In assessing voluntariness, the court must determine whether
'the statement is the product of an essentially free and
unconstrained choice by its maker, or . . . whether the maker's
will has been overborne and his capacity for self-determination
critically impaired.'" Roberts v. Commonwealth, 18 Va. App.
554, 557, 445 S.E.2d 709, 711 (1994) (quoting Stockton v.
Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984)
(internal quotations omitted)). In reviewing the trial court's
determination of voluntariness, "we are bound by the trial
court's subsidiary factual findings unless those findings are
plainly wrong." Wilson, 13 Va. App. at 551, 413 S.E.2d at 656.
Chief Dayton did inform Latta, during their conversation
prior to Latta's last waiver of rights, that since the narcotics
were found on property owned by both Latta and his wife, who
were both present at the search, it was possible that Latta's
wife could be charged. Latta's wife, therefore, could have been
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arrested in good faith for cause at that time. In addition,
Chief Dayton testified that he never told Latta that he would
arrest Latta's wife.
As there is no evidence that Chief Dayton's statement was
unjustified or made in bad faith, there is no evidence of
coercion. See Rogers v. Richmond, 365 U.S. 534 (1961). We,
therefore, hold Latta's ensuing confession was voluntarily made.
Accordingly, we affirm the decision of the trial court to
deny Latta's motion to suppress his confession.
II. SUFFICIENCY OF THE EVIDENCE
Latta also challenges the sufficiency of the evidence to
prove he possessed the narcotics discovered in his backyard. We
find the record reflects sufficient evidence to support the
trial court's findings and verdict.
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we view the evidence in the light most
favorable to the Commonwealth and accord to it all reasonable
inferences deducible therefrom." Glenn v. Commonwealth, 10
Va. App. 150, 153, 390 S.E.2d 505, 507 (1990). Absent evidence
the decision is "plainly wrong" or without support, we will
uphold the conviction. Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth,
6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
The evidence in this case was sufficient to convict Latta
who confessed to the knowing possession of the narcotics. We,
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however, recognize that the confession alone is not sufficient.
See Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.2d
212, 214 (1988) ("In Virginia an extrajudicial confession of an
accused that he committed the offense with which he is charged
is not, alone and uncorroborated, adequate proof of the corpus
delicti."). Where "the commission of the crime has been fully
confessed by the accused, only slight corroborative evidence is
necessary to establish the corpus delicti." Clozza v.
Commonwealth, 228 Va. 124, 133, 321 S.E.2d 273, 279 (1984)
(citing Campbell v. Commonwealth, 194 Va. 825, 833, 75 S.E.2d
468, 473 (1953)), (emphasis added), cert. denied, 469 U.S. 1230
(1985).
The narcotics were found in an overturned flowerpot at the
base of a tree in Latta's backyard. There is no evidence of
other residences near the location or that any other persons had
ready access to the yard. The evidence shows that the location
is frequently visited by the Latta family as an end of their
clothesline was tied to the tree, the children's toys were
scattered nearby, and a footpath runs from their vehicle parking
place to the tree. In addition, the obvious value of the
narcotics justifies an inference that someone did not abandon
them. See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d
877, 883 (1992).
The foregoing evidence and Latta's confession were
sufficient evidence to prove the corpus delicti, the knowing
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possession of the narcotics. Accordingly, we uphold the
judgment of the trial court and affirm Latta's convictions.
Affirmed.
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