Billy Ray Wilson v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge Humphreys and Senior Judge Bumgardner
Argued at Salem, Virginia
UNPUBLISHED
BILLY RAY WILSON
MEMORANDUM OPINION* BY
v. Record No. 1853-14-3 CHIEF JUDGE GLEN A. HUFF
NOVEMBER 3, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
M. Kevin Bailey (Andrew W. Childress; Pafford Lawrence &
Childress, PLLC, on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Billy Ray Wilson (“appellant”) appeals his convictions for driving as a habitual offender,
in violation of Code § 46.2-357, and driving while intoxicated (“DUI”), in violation of Code
§ 18.2-266. Following a jury trial in the Campbell County Circuit Court (“trial court”), appellant
was sentenced to 12 months’ incarceration and fined $2,500 for the DUI conviction, and to five
years’ incarceration for the habitual offender conviction. Appellant presents two assignments of
error on appeal:
1. The trial court erred in finding the evidence sufficiently proved
[appellant] was operating a vehicle as required by . . . Code
§ 46.2-357, or by . . . Code § 18.2-266 because no witness saw him
operating the SUV, and the driver of the car left the scene of the
accident.
2. The trial court erred in admitting a statement of [appellant]
which was obtained in violation of [appellant’s] right to remain
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
silent and right to counsel pursuant to the Fifth and Sixth
Amendments of the United States Constitution.
For the following reasons, this Court affirms appellant’s convictions.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
Around 10:00 p.m. on November 16, 2012, Brian Harris (“Harris”), an EMT with the
Lyn-Dan Heights Fire Department, along with EMTs Eric Spencer (“Spencer”) and Roy Sage
(“Sage”) of the Rustburg Volunteer Fire Department, arrived at the scene of a vehicle accident on
Depot Road in Campbell County. Upon arriving at the accident scene, they observed an overturned
Toyota 4 Runner SUV, and an unidentified woman informed Harris that a person was still inside the
vehicle. Further investigation revealed that appellant was the sole occupant of the SUV, and he was
on the driver’s side “hanging upside down . . . with his leg wrapped around the steering column.”
Sage entered the SUV and freed appellant’s leg, which allowed appellant to exit the vehicle through
one of the windows.
Appellant’s speech was slurred, and he was emanating an odor of alcohol. Initially, he did
not tell the rescue personnel his correct name. Additionally, he asked Sage if he could “tell them
[Sage] was driving.” Shortly thereafter, however, appellant told Spencer that “there was a female
driver that must have fled the scene.” Neither Spencer nor Harris saw any personal belongings that
suggested anyone other than appellant had been in the SUV.
Virginia State Trooper Todd Bullington (“Bullington”) was dispatched to the accident scene
around 10:30 p.m. When he arrived, appellant was lying on a backboard in an ambulance.
-2-
Bullington testified that appellant’s speech was slurred and that his eyes were glassy and bloodshot.
In response to Bullington’s questions, appellant stated that the vehicle was his and that he had
purchased it earlier that day. Appellant also stated that “some girl” had been the driver, but he was
not able to provide her name. When Bullington asked for appellant to take a preliminary breath test,
appellant said that he did not want to talk anymore, and Bullington did not question him further at
that time.
Bullington also spoke with Brandon Carter (“Carter”) at the accident site. Carter testified
that while he is not related to appellant, he nevertheless called him “dad” because “he’s kind of
raised me.” Carter knew that appellant was a habitual offender and was “not supposed to drive.” At
the scene of the accident, Carter told Bullington that he had not seen appellant driving that night
because he was not at home when appellant left in the SUV that evening. Additionally, Carter did
not mention to Bullington that there could have been another person driving the SUV that night.
After appellant was taken to a hospital, Bullington visited appellant to ask “a few follow-up
questions” about the accident. Appellant stated that he had not been driving the SUV and became
angry when Bullington asked who, then, had been driving, telling Bullington, “that’s your fucking
job, figure it out.” Bullington then placed appellant under arrest and advised him of his Miranda
rights. Bullington then began reading the implied consent form to appellant. As Bullington was
reading the form, appellant “was talking the whole time about how he didn’t want to talk to
[Bullington],” causing Bullington to stop and tell him, “I’m not asking you questions . . . I just . . .
have to read this to you.” Bullington testified at a pre-trial motion that “at some point” while he was
reading the form, appellant said, “I flipped the Jeep and you’re harassing me.” Then again, at
appellant’s trial, Bullington testified that appellant “blurted out something to the effect of, you’re
harassing me because I flipped my Jeep.” Bullington testified on cross-examination, however, that
he could not recall the exact words used by appellant.
-3-
At a pre-trial motion on November 25, 2013, appellant moved to suppress the statement he
made to Bullington while in the hospital that he had “flipped the Jeep.” Appellant argued that the
statement was obtained in violation of his “Fifth and Sixth and Fourteenth Amendment” rights. The
trial court denied the motion, finding that the statement was made voluntarily.
At appellant’s trial, on December 2, 2013, appellant presented two witnesses that testified
that a woman was driving the SUV on the night in question. First, Carter testified that he and
appellant had purchased the SUV from a man in Appomattox via Craigslist with the intention of
reselling it for a profit. Carter stated that they drove the vehicle back to Carter’s house, where some
friends had been invited over and they “started a fire and [were] out there drinking.” Carter testified
that appellant invited a woman named “Marie” to the party and that she arrived in a white, Ford
minivan. Carter previously did not know Marie, and described her as “short, chunky, [with] black
hair [and] glasses.” Carter testified that Marie wanted to test drive the SUV, so she and appellant
went to get more beer with Marie driving. Twenty to twenty-five minutes after they left, Carter said
that he heard sirens going past his house so he “went up Depot” until he saw the overturned SUV.
Carter testified that he did not see Marie again and that her van was not at his house the following
morning.
Dolly Bryant (“Bryant”) also testified that she had been at Carter’s house that evening and
that appellant introduced her to a girl named “Maria.” Bryant testified that Maria “had an accent,”
was “medium size,” and did not wear glasses. Additionally, Bryant testified that Maria’s hair was
blonde to brown. Bryant testified that Maria was driving when she and appellant left the house in
the SUV.
At the close of the evidence, appellant moved to strike both the DUI and habitual offender
charges. The trial court denied the motions, and, after closing arguments, the jury found appellant
guilty of both charges. This appeal followed.
-4-
II. ANALYSIS
A. Sufficiency of the Evidence
On appeal, appellant first contends that the trial court erred by denying his motions to
strike the Commonwealth’s evidence. Specifically, he argues that the evidence was insufficient
to prove that he was driving the SUV.
Our standard for reviewing the sufficiency of the evidence is firmly established:
[W]hen the sufficiency of the evidence is challenged on appeal, the
evidence and all reasonable inferences fairly drawn therefrom must
be viewed in the light most favorable to the Commonwealth. The
trial court’s judgment should be affirmed unless it appears that it is
plainly wrong or without evidence to support it.
Spencer v. Commonwealth, 238 Va. 275, 283, 384 S.E.2d 775, 779 (1989) (citations omitted).
Additionally, under this familiar standard of review, “[a]n appellate court does not ‘ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant question is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”
Id.
“Determining the credibility of witnesses . . . is within the exclusive province of the jury,
which has the unique opportunity to observe the demeanor of the witnesses as they testify.” Lea
v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993). Therefore, this Court
will not disturb the fact finder’s determination of the credibility of witness testimony unless, “as
a matter of law, the testimony is inherently incredible.” Walker v. Commonwealth, 258 Va. 54,
70-71, 515 S.E.2d 565, 575 (1999). Indeed, “[t]he living record contains many guideposts to the
truth which are not in the printed record,” and an appellate court, not having the benefit of these
-5-
guideposts, “should give great weight to the conclusions of those who have seen and heard
them.” Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955).
Appellant is correct in noting that both of the offenses for which he was convicted –
driving while intoxicated, in violation of Code § 18.2-266, and driving after being declared a
habitual offender, in violation of Code § 46.2-357 – required the Commonwealth to prove
beyond a reasonable doubt that appellant was the driver of the SUV. In the present case, the
evidence was sufficient to establish this fact. Specifically, when the EMTs arrived on the scene,
appellant was the only person found in the overturned SUV, and he was trapped with his leg
wrapped around the steering column so that his body was hanging on the driver’s side. See
Keesee v. Commonwealth, 32 Va. App. 263, 527 S.E.2d 473 (2000) (holding that evidence was
sufficient to prove the defendant had been operating the motor vehicle where defendant was the
only person in the car when police arrived at the scene of the accident and defendant was trapped
in the vehicle with his legs pinned under the steering wheel and dashboard).
Additionally, appellant made multiple statements that support his conviction. First, while
being questioned by Bullington in the hospital, appellant angrily “blurted out” that Bullington
was harassing him because he “flipped [his] Jeep,”1 implicitly admitting that he was the driver.
Moreover, appellant initially lied to the EMTs by giving them a false name. As, “[a] defendant’s
false statements are probative to show he is trying to conceal his guilt, and thus are evidence of
1
Appellant’s second assignment of error alleges that this statement was admitted in
violation of his Fifth and Sixth Amendment rights. When an appeal challenges both the
sufficiency of the evidence as well as the admissibility of certain evidence upon which the
conviction was based, Code § 19.2-324.1 requires this Court to consider “all the evidence
admitted at trial to determine whether there is sufficient evidence to sustain the conviction,”
including the evidence challenged on appeal. If this Court subsequently determines that the
challenged evidence was erroneously admitted and not harmless, the remedy is that “the case
shall be remanded for a new trial if the Commonwealth elects to have a new trial.” Code
§ 19.2-324.1.
-6-
his guilt,” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991), this
lie is further evidence that supports the determination that appellant was driving the SUV.
Accordingly, this Court holds that, from the above circumstances and statements, a
rational trier of fact could have found that appellant was driving the SUV.
B. Motion to Suppress Statement
Next, appellant contends that the trial court erred in admitting his statement into evidence
that he “flipped [his] Jeep.” Specifically, he argues that the statement was obtained in violation
of his rights under the Fifth and Sixth Amendments of the United States Constitution.
The Sixth Amendment right to counsel is “offense specific,” meaning that it does not
come into being until a criminal prosecution has begun, and it is limited by the extent of that
action. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). As such, the invocation of this right
“does not bar police initiated interrogation with respect to charges unrelated to those for which
counsel has been employed.” Jackson v. Commonwealth, 14 Va. App. 414, 416, 417 S.E.2d 5, 7
(1992). The Fifth Amendment right to counsel, on the other hand, provides a right to the
assistance of counsel at any “custodial interrogation” when it is invoked. Michigan v. Jackson,
475 U.S. 625, 629 (1985).
Appellant first argues that his statement in the hospital that he “flipped [his] Jeep” was
admitted in violation of the Fifth Amendment. The Fifth Amendment guarantees that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” Thus,
“[w]hen police interrogate a suspect in their custody, they must first give a Miranda warning
informing the suspect of the right to an attorney and the right to have that attorney present during
interrogation.” Commonwealth v. Quarles, 283 Va. 214, 220, 720 S.E.2d 84, 87 (2012)
(emphasis added) (citing Miranda v. Arizona, 384 U.S. 436, 469-73 (1966)). Statements made
by a suspect who is both in police custody and under police interrogation generally will be
-7-
suppressed if the suspect has not been first advised of his Miranda rights. See, e.g., Testa v.
Commonwealth, 55 Va. App. 275, 283 n.5, 685 S.E.2d 213, 217 n.5 (2009).
Once a suspect invokes these rights, “further discussions between the police and the
accused must [be] initiated by the accused.” Correll v. Commonwealth, 232 Va. 454, 462, 352
S.E.2d 352, 356 (1987). Notwithstanding, a suspect cannot “invoke his Miranda rights
anticipatorily, in a context other than custodial interrogation.” McNeil, 501 U.S. at 182 n.3.
Determining whether a person is in “‘custody depends on the objective circumstances of the
interrogation, not only the subjective views harbored by either the interrogating officers or the
person being questioned.’” Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting
Stansbury v. California, 511 U.S. 318, 323 (1994)). In making this determination, “[c]ourts must
examine ‘all of the circumstances surrounding the interrogation’ and determine ‘how a
reasonable person in the position of the individual being questioned would gauge the breadth of
his or her freedom of action.’” Id. (quoting Stansbury, 511 U.S. at 325). In Thompson v.
Keohane, 516 U.S. 99, 112 (1995), the United States Supreme Court offered the following
description of the Miranda test:
Two discrete inquiries are essential to the determination: first,
what were the circumstances surrounding the interrogation; and
second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the interrogation
and leave. Once the scene is set and the players’ lines and actions
are reconstructed, the court must apply an objective test to resolve
the ultimate inquiry: was there a formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest.
Turning to the present case, appellant was lying in an ambulance when Bullington
initially questioned him for two to three minutes regarding the accident. After Bullington asked
if appellant would take a preliminary breath test, appellant refused and stated that he did not
want to talk anymore. At this point, Bullington respected appellant’s request to terminate the
-8-
conversation. Notably, appellant had not yet been formally placed under arrest nor physically
detained in any way. Ramos v. Commonwealth, 30 Va. App. 365, 369, 516 S.E.2d 737, 740
(1999) (even “the mere presence of some physical restraint does not change a stop into a
custodial arrest”). As such, the circumstances of this case indicate that appellant was not in
custody at this time. See Harris v. Commonwealth, 27 Va. App. 554, 564, 566, 500 S.E.2d 257,
262, 262 (1998) (custodial status is determined on a case-by-case basis, with no single factor
being dispositive).
Consequently, appellant’s termination of the conversation did not constitute an
invocation of appellant’s Fifth Amendment right to counsel because a suspect cannot “invoke his
Miranda rights anticipatorily, in a context other than custodial interrogation.” McNeil, 501 U.S.
at 182 n.3. Accordingly, it was permissible for Bullington to reinitiate the conversation with
appellant after he was taken to the hospital.
During this conversation in the hospital, appellant became belligerent, which eventually
led to Bullington placing appellant under arrest and advising him of his Miranda rights. After
reading him his Miranda rights, Bullington began reading the “lengthy” implied consent law to
appellant, as he was required to do by Code § 18.2-268.3(B).2 While Bullington was attempting
2
Code § 18.2-268.3(B) provides that
[w]hen a person is arrested for a violation of § 18.2-51.4,
18.2-266, 18.2-266.1 or, subsection B of § 18.2-272 or of a similar
ordinance and such person refuses to permit blood or breath or
both blood and breath samples to be taken for testing as required
by § 18.2-268.2, the arresting officer shall advise the person, from
a form provided by the Office of the Executive Secretary of the
Supreme Court, that (i) a person who operates a motor vehicle
upon a highway in the Commonwealth is deemed thereby, as a
condition of such operation, to have consented to have samples of
his blood and breath taken for chemical tests to determine the
alcohol or drug content of his blood, [and] (ii) a finding of
-9-
to read the implied consent form, appellant “was talking the whole time about how he didn’t want
to talk to [Bullington],” causing Bullington to stop and tell him, “I’m not asking you questions . . . I
just . . . have to read this to you.” Nevertheless, while Bullington was reading the implied consent
form, appellant “blurted out something to the effect of, you’re harassing me because I flipped my
Jeep.”
“Even when otherwise applicable, Miranda bars from evidence only a suspect’s responses
to police interrogation and has no impact on a suspect’s volunteered statements.” Testa, 55
Va. App. at 283, 685 S.E.2d at 217. Indeed, “[v]olunteered statements of any kind are not barred
by the Fifth Amendment,” Miranda explained, “and their admissibility is not affected by our
holding today.” Miranda, 384 U.S. at 478. Moreover, even “‘a statement following a police
officer’s question may qualify as at least equivalent of being volunteered when it is
unresponsive.’” Testa, 55 Va. App. at 284, 685 S.E.2d at 217 (quoting 2 Wayne R. LaFave
Criminal Procedure § 6.7(d), at 792 (3d ed. 2007)). In this respect, if a suspect’s statement is
“not foreseeable, then it is volunteered.” Watts v. Commonwealth, 38 Va. App. 206, 217, 562
S.E.2d 699, 705 (2002) (citations omitted).
In the present case, even though appellant was placed under arrest and, therefore, in
custody, his statement that he “flipped [his] Jeep” was not in response to police interrogation.
Bullington was reading the informed consent form, as he was required by law to do, when
appellant “blurted out” the statement. As such, the statement was voluntary as it was not
responsive to any question propounded by Bullington, and its admissibility was not barred by the
Fifth Amendment.
unreasonable refusal to consent may be admitted as evidence at a
criminal trial . . . .
(Emphasis added).
- 10 -
Next, appellant contends that the statement was admitted into evidence in violation of his
Sixth Amendment right to counsel. “[T]he right to counsel granted by the Sixth . . .
Amendment[] means at least that a person is entitled to the help of a lawyer at or after the time
that judicial proceedings have been initiated against him – ‘whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.’” Brewer v. Williams, 430
U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1971)). Indeed, “‘the ‘core
purpose’ of the [Sixth Amendment right to] counsel guarantee is to assure aid at trial, when the
accused [is] confronted with both the intricacies of the law and the advocacy of the public
prosecutor.’” Hunter v. Commonwealth, 3 Va. App. 221, 224, 349 S.E.2d 154, 156 (1986)
(quoting United States v. Gouveia, 467 U.S. 180, 188-89 (1984)). Notwithstanding, the United
States Supreme Court has “‘extended’” the Sixth Amendment right to counsel “‘to certain
critical pre-trial proceedings,’” but this has been done “‘recognizing that at [these critical]
proceedings, the accused [is] confronted, just as at trial, by the procedural system, or by his
expert adversary, or by both.’” Id.
In the present case, appellant had been arrested, but adversarial judicial proceedings had
not begun. Indeed, the conversation between appellant and Bullington took place at a time when
appellant had not been charged and was not being confronted by the procedural intricacies or
expert adversaries of the judicial process. Consequently, admission of the statement did not
violate appellant’s rights under the Sixth Amendment.
III. CONCLUSION
For the foregoing reasons, this Court finds that the evidence was sufficient to establish
that appellant was the driver of the SUV and that the trial court did not err by admitting
appellant’s statement that he “flipped [his] Jeep.”
Affirmed.
- 11 -