Opinion
Record No. 0087-92-1
November 2, 1993
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH EDWARD W. HANSON, JR., JUDGE.
Robert F. Hagans, Jr. (J. Hugo Madison, on briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Baker and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Darnell Phillips (defendant) was convicted by a jury of malicious wounding, abduction with intent to defile, forcible sodomy and rape. Defendant argues on appeal that the trial court erroneously admitted into evidence his statement to police and that the evidence was insufficient to support the convictions. We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issues before the Court.
It is well established that the "Commonwealth bears the burden of proving by a preponderance of the evidence" that the accused knowingly, intelligently and voluntarily waived his "Miranda rights." Mills v. Commonwealth, 14 Va. App. 459, 468, 418 S.E.2d 718, 722-23 (1992). On appellate review, "[w]hether a confession is voluntary requires an independent examination of the totality of the circumstances to determine '[if] 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."'"Id. at 468, 418 S.E.2d at 723 (quoting Gray v. Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 873 (1987)). In undertaking this analysis, we must consider "the evidence in the light most favorable to the prevailing party" below, the Commonwealth in this instance. Id. Further, "we are bound by the trial court's subsidiary factual findings unless those findings are plainly wrong." Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992).
In execution of a search warrant for his person, defendant was taken into custody by Virginia Beach police and transported "down to . . . headquarters" at "about" 2:00 a.m. on the morning of August 10, 1990. Shortly after arrival, Detective Steven Kurrle explained to defendant that "he was [there] on a search warrant" and proceeded to photograph defendant, advise him of his "Miranda rights" in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and conduct a "perk kit exam." After acknowledging an understanding of his rights and executing an "Advisement of Rights Form," defendant initially denied any involvement in the offenses. However, during later questioning by Detective S.W. Hoffman, which began at approximately 5:35 a.m., defendant "confessed" within "five to seven minutes."
Prior to trial, defendant moved the trial court to suppress this statement to Hoffman. He complained that detectives "held [him] incommunicado for . . . four hours," questioning him in "relay fashion" while denying repeated requests for permission to telephone his parents and advise them "what was going on . . . so [he] could have a lawyer to speak for [him]." Defendant admitted receiving and understanding his Miranda rights and executing the related form but claimed that he acted in exhaustion and only after detectives promised him access to the telephone. Similarly, he maintains that discomfort, fatigue, "psychological pressure" and "police trickery and deceit," considered with his "individual characteristics," "leave no doubt" that his statements were "not the product of a rational intellect and a free will."
Characteristics cited by defendant included only his age at the time of arrest, eighteen, his tenth grade education, and his limited "prior experience with police."
On cross-examination, defendant acknowledged that he "never asked . . . to speak with a lawyer or to call a lawyer" but "merely . . . to use the telephone to call [his] mother." Detectives Kurrle and Tony Zucaro testified that defendant was questioned by Kurrle for "maybe twenty minutes" and by Zucaro for "probably twenty to thirty minutes." Zucaro described defendant as "not appear[ing] fatigued," being "fairly cooperative" and "speaking easily." Detective Hoffman found defendant "alert" and recalled that he began the disputed narrative statement within minutes after Hoffman entered the room. Finally, all three detectives denied any effort by defendant to terminate the interviews. Apart from defendant's testimony at the suppression hearing, there is no evidence of oppressive police conduct or other circumstances which suggests an impaired will or diminished intellectual capacity.
Based upon an independent examination of the record, viewed in the proper perspective, we, therefore, find that the trial court correctly concluded that the Commonwealth established a waiver of defendant's Miranda rights by a preponderance of the evidence and properly received the statement into evidence.
Defendant also challenges the convictions as "contrary to the law and the evidence." In reviewing the sufficiency of the evidence, "we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted). "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Assuming, without deciding, that this issue was properly saved for appeal, we find defendant's claim unconvincing. Forensic and other evidence corroborated the victim's identification and defendant's confession and provided ample proof to support the convictions.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.