Doris Lucress v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 2, 1996
• Docket: 2638941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Overton Argued at Norfolk, Virginia

DORIS LUCRESS

v. Record No. 2638-94-1 MEMORANDUM OPINION * BY JUDGE JOSEPH E. BAKER COMMONWEALTH OF VIRGINIA JULY 2, 1996

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH John K. Moore, Judge Gerard T. Schafer (Schafer & Russo, P.C., on brief), for appellant.

Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Doris Lucress (appellant) appeals from a judgment of the

Circuit Court of the City of Virginia Beach (trial court) that

approved jury verdicts convicting her of two counts of abduction

in violation of Code § 18.2-47, two counts of robbery in

violation of Code § 18.2-58, and use of a firearm in the

commission of a felony in violation of Code § 18.2-53.1. On

appeal, appellant argues that the trial court erred in refusing

to suppress (1) a statement she made to the police and (2) a

witness's voice identification of appellant. Appellant asserts

that the statement was involuntarily given and that the

identification was impermissibly tainted. Finding no error, we

affirm the judgment of the trial court.

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. Facts

The trial court having denied the motion to suppress, we

view the evidence in the light most favorable to the trial

court's decision. Brown v. Commonwealth, 15 Va. App. 1, 7, 421

S.E.2d 877, 881 (1991). Viewed accordingly, the record discloses

that on July 25, 1993, Patricia Marie Steele (Steele) and Kathryn

Martin Henshaw (Henshaw) were working at the Linen Warehouse (the

store) in Virginia Beach. Robbin Marlar (Marlar), the store's

security guard, was also working that day. At approximately 6:00

p.m., closing time, the last customer left the store, and all the

employees, except Steele, Henshaw, and Marlar, left the building

by 6:25 p.m. The doors of the building were secured and Henshaw

and Steele began the process of totaling the day's receipts. Steele took the money from the cash registers back to the

cash office and locked the door. Steele put the money away while

Henshaw was coming back to the office. Marlar told Steele she

could "unlock the door now. There's no one else here." Steele

said "No," that it was store policy to keep the door locked at

all times. Steele did open the door, however, to let Henshaw

into the office. Steele and Henshaw began to "double-check" the

day's figures to make sure they were correct.

While Steele was sitting with her back to the door, working

on re-checking the figures, she heard the door open and heard

Marlar say "this is where you work . . . I've never been in

here." As Steele turned to answer Marlar, she saw a gun coming

- 2 - over Marlar's shoulder and heard a voice say, "Give me the

money." Steele froze for a second and then began to concentrate

on the person with the gun to get as detailed a description of

her as she could. The person holding the gun was a woman

"disguised completely from head to toe." Henshaw knew it was a

woman because of the voice. Steele also knew the person was a

woman because of her "size and build . . . . Plus the main reason

. . . was the voice." The woman told Steele and Henshaw to turn

around and face the wall, which they did, and then told Marlar,

"Give me the money. Give me the money." Marlar told the woman

she did not have the money "and the person again said, 'Give me

the money.'" Steele asked the woman if it was okay for her to get up and

get the money from the safe. The woman responded, "Of course."

Steele opened the safe and handed the woman seven bags which

contained approximately $8,000. The woman then told Marlar to

handcuff Steele. Marlar handcuffed Steele's hands behind her

back and then was given a second pair of handcuffs to handcuff

Henshaw. Next, the woman gave Marlar a roll of duct tape and

told her to tape Steele's and Henshaw's eyes and mouths shut.

Marlar taped Steele's eyes and mouth first. Steele then heard

the woman tell Marlar to put the tape across Henshaw's eyes and

mouth. Next, the woman instructed Marlar to tape Henshaw's

ankles and told Steele to lie face down on the floor. Marlar

taped Steele's and Henshaw's ankles together. The woman told

- 3 - Marlar to get Henshaw's keys. Marlar removed the keys, and

Steele heard the woman tell Marlar "You're coming with me," at

which time the two left. Before leaving, the woman told them,

"If you move or try anything, I'll kill the security guard."

Steele and Henshaw managed to free themselves, and Henshaw

called the police.

At approximately 7:35 p.m. that evening appellant and Marlar

were apprehended a few miles from the store. They were in

Marlar's car. Marlar was driving and appellant was a passenger.

Contraband from the robbery and instruments similar to those

used to effectuate the robbery were found throughout the car.

Sergeant William B. Robertson (Robertson), a Virginia Beach

Police Department Investigator, arrived at the scene at

approximately 7:45 p.m. and advised appellant that she was being

"detained in connection with a robbery at [the store]" and

advised her of her Miranda rights. Appellant stated that she

understood her rights and that she wanted to make a statement.

Appellant was not questioned at the time and was told that she

would be questioned at the police station.

At 10:35 p.m. that evening, Officer Patrick Allen Lewis

(Lewis) and Robertson interviewed appellant at the police

station. Lewis told appellant that she was going to be charged

with two counts of robbery, two counts of abduction, and one

count of use of a firearm. Appellant acknowledged that she had

been advised of her rights. Appellant confessed to committing

- 4 - the crime with Marlar.

On August 3, 1993, nine days after the robbery, appellant's

bond hearing was held. Steele was present. Appellant appeared

at the hearing in an orange uniform, and she was shackled at the

feet. When Steele first saw appellant, she was not sure if she

was the robber. As soon as Steele heard appellant's voice,

however, she knew that appellant was the person who had committed

the robbery and identified her as such. Appellant filed a motion to suppress (1) the statements

appellant made to the police at the station and (2) Steele's

voice identification of appellant. A suppression hearing was

held on May 3, 1994.

With respect to the interrogation, the trial court ruled

that Robertson fully advised appellant of her Miranda rights, and

that appellant "understood those rights and agreed to answer

questions posed to her by the officers." The trial court

rejected appellant's argument that she had been coerced into

making a statement, holding as follows: Having had the opportunity to view the defendant on this the videotape, to hear her testimony today, the testimony of the officers, it's clear to me that any statement she ultimately made was made knowingly and voluntarily and without any threat, without any duress, without any coercion on the part of the officers and that it was the product of a free mind.

With respect to the voice identification, at the suppression

hearing, on cross-examination, Steele stated that she first

- 5 - thought the robbery might be some kind of test by the security

company and, therefore, she was paying particular attention to

every detail to get as much information as she could. Steele

paid attention to appellant's voice during the robbery and felt

immediately after the robbery that if she ever heard the voice

again she would be able to identify it. The trial court denied

appellant's motion to suppress Steele's voice identification of

appellant.

Statement to Police

Miranda warnings "ensur[e] that a suspect knows that he may

choose not to talk to law enforcement officials, to talk only

with counsel present, or to discontinue talking at any time. The

Miranda warnings ensure that a waiver of these rights is knowing

and intelligent . . . ." Colorado v. Spring, 479 U.S. 564, 574

(1987). One of the "purposes of the safeguards prescribed by

Miranda [is] . . . as much as possible to free courts from the

task of scrutinizing individual cases to try to determine, after

the fact, whether particular confessions were voluntary." May v.

Commonwealth, 3 Va. App. 348, 354-55, 349 S.E.2d 428, 431 (1986).

Here, the trial court found, and appellant does not deny,

that after being Mirandized she knowingly and voluntarily

consented to make a statement to the police. Nevertheless,

appellant alleges that certain statements made by the

interrogating officers at the beginning of her interview vitiated

her previously given consent. Appellant relies upon Collazo v.

- 6 - Estelle, 940 F.2d 411 (9th Cir. 1991), to support her argument.

Her reliance is misplaced. In Collazo, after being advised of

his rights, the defendant asked to speak with a lawyer. Instead

of providing him with one, the interrogating officers proceeded

to discourage the defendant from exercising that right.

Thereafter, after a few hours' deliberation, the defendant

decided not to retain a lawyer, re-initiated contact with the

officers, was again Mirandized, and confessed. Id. at 413-14.

The Ninth Circuit held that it was impermissible to advise one of

their constitutional rights and then discourage them from

exercising them. Id. at 417. The defendant's subsequent waiver

under Miranda was invalid and the court suppressed his

confession. Id. at 419-20. Here, appellant did not refuse to

make a statement and then agree to do so only after being

encouraged not to exercise that right; rather, appellant

voluntarily consented to make a statement and, thereafter, the

officers made statements which she alleges were coercive. Logic

dictates that appellant could not be coerced to do something that

she had already agreed to do. Therefore, no constitutional error

occurred. Voice Identification

Due process is violated if the pretrial identification

procedure is "so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification."

Simmons v. United States, 390 U.S. 377, 384 (1968). If an

- 7 - identification procedure is deemed impermissibly suggestive, it

must be determined "whether [the] identification[] . . . w[as]

nevertheless so reliable that no substantial likelihood of

misidentification existed." Wise v. Commonwealth, 6 Va. App.

178, 184, 367 S.E.2d 197, 201 (1988) (citing Neil v. Biggers, 409

U.S. 188, 198 (1972)). The factors to be considered in making

this determination are: (1) the opportunity of the witness to

view the criminal at the time of the crime; (2) the witness's

degree of attention; (3) the accuracy of the witness's prior

description of the criminal; (4) the level of certainty

demonstrated by the witness at the confrontation; and (5) the

length of time between the crime and the confrontation. Id. at

184-85, 367 S.E.2d at 201.

The application of these factors to this case demonstrates

that no substantial likelihood of a misidentification of

appellant by Steele existed. Here, Steele had the opportunity to

hear appellant speak several times during the robbery. Steele

had a heightened degree of attention during the robbery because

she believed it may have been a security exercise. Although not

asked to provide a detailed description of appellant's voice

prior to the identification, Steele had previously identified the

voice of the robber as belonging to a woman. Steele stated that

when she heard appellant speak at the bond hearing she

immediately knew appellant was the robber. Finally, nine days

passed between the time of the robbery and the identification;

- 8 - this is not an impermissibly long period of time. See

Commonwealth v. Vanderlin, 580 A.2d 820 (Pa. Super. 1990) (11

days between perpetration and identification); see also Fogg v.

Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968) (victim

identified defendant at preliminary hearing more than two months

after the crime).

For the foregoing reasons, the judgment of the trial court

is affirmed. Affirmed.

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