Lois Eunice Roundtree v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 6, 2000
• Docket: 1686991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Senior Judges Hodges, Overton and Retired Judge Stephens ∗ Argued at Chesapeake, Virginia

LOIS EUNICE ROUNDTREE MEMORANDUM OPINION ∗∗ BY v. Record No. 1686-99-1 JUDGE NELSON T. OVERTON JUNE 6, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Bonwill Shockley, Judge

B. Thomas Reed for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

On appeal from her convictions of robbery, in violation of

Code § 18.2-58; abduction, in violation of Code § 18.2-47; use

of a firearm in the commission of a felony, in violation of Code

§ 18.2-53.1; and carjacking, in violation of Code § 18.2-58.1,

Lois Eunice Roundtree contends that the trial court erred in

denying her motion to suppress statements made in violation of

her right to remain silent and her right to counsel.

∗ Retired Judge J. Warren Stephens took part in the consideration of this case by designation pursuant to Code § 17.1-400, recodifying Code § 17-116.01. ∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. In reviewing the trial judge's denial of Roundtree's motion

to suppress, "we view the evidence in the light most favorable

to [the Commonwealth], the prevailing party below, and we grant

all reasonable inferences fairly deducible from that evidence."

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991). In our review, "we are bound by the trial

court's findings of historical fact unless 'plainly wrong' or

without evidence to support them." McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing

Ornelas v. United States, 517 U.S. 690, 699 (1996)). We

consider de novo whether those facts implicate the Fourth

Amendment and, if so, whether the officer unlawfully infringed

upon an area protected by the Fourth Amendment. See id.

On the evening of January 2, 1999, Roundtree, Sean

Thompson, and Floyd Walker drove to a Virginia Beach nightclub,

where they spotted Chauncey Washington in the parking lot. They

decided to rob him. Roundtree lured Washington out of his

vehicle. Thompson, armed with a gun, and Walker then forced

Washington back into the car, in which the three men drove to a

bank ATM, followed by Roundtree.

Walker and Thompson then left with Washington and shot him.

As Roundtree was leaving the bank, she was stopped for speeding.

While stopped, a report describing Roundtree's car as involved

in an abduction was issued. Police detectives found suspicious

- 2 - sets of keys, blood splatters, gloves, and a .22 caliber round

in the car, and took Roundtree to the station for questioning.

At the station, Roundtree was apprised of her Miranda

rights. She repeatedly denied involvement in the crime, and

almost two hours into the questioning, she asserted her right to

remain silent, saying, "You read me my rights. You said I did

not have to talk with you. I do not want to talk to you." The

detective immediately left the room. For a time thereafter, the

detective periodically entered the room to offer Roundtree a

snack or beverage.

Three and a half hours after Roundtree asserted her right

to remain silent, two police detectives entered the

interrogation room and reminded Roundtree of her Miranda rights.

She acknowledged her comprehension of those rights. The

detectives said that they would like to resume talking to her,

and she acquiesced, talking with the police for the next four

hours.

Roundtree contends that the information communicated to the

police in the second interview was obtained in direct violation

of her constitutional right to remain silent.

"Miranda forbids continued interrogation of an individual

in custody after [s]he has invoked [her] right to remain

silent." Webber v. Commonwealth, 26 Va. App. 549, 557, 496

S.E.2d 83, 86 (1998) (citation omitted). Once such right is

invoked, however, there is no "per se proscription of indefinite

- 3 - duration upon any further questioning . . . ." Weeks v.

Commonwealth, 248 Va. 460, 471, 450 S.E.2d 379, 386 (1994).

Courts must examine five factors to determine whether a

subsequent questioning was proper. See Michigan v. Mosley, 423

U.S. 96, 104-06 (1975).

Suggesting a case-by-case approach to determine that continued questioning was appropriate after an initial refusal to answer questions, the Mosley court mentioned five factors that related to the evidence in that case. First, whether defendant "was carefully advised" before the initial interrogation "that he was under no obligation to answer any questions and could remain silent if he wished." Second, whether there was an immediate cessation of the initial interrogation, and no attempt to persuade defendant to reconsider his position. Third, whether the police resumed questioning "only after the passage of a significant period of time." Fourth, whether Miranda warnings preceded the second questioning. Fifth, whether the second interrogation was limited to a crime that had not been the subject of the earlier interrogation.

Weeks, 248 Va. at 471, 450 S.E.2d at 386 (citations omitted).

Detective Cox testified that he read Roundtree the Miranda

rights from a standard card. She acknowledged that she

understood these rights, stated that she had received twelve

years of education, and denied any drug or alcohol use. She

does not contend that she knowingly and voluntarily waived her

rights initially. Two hours after questioning commenced,

Roundtree invoked her right to remain silent. At that time,

detectives, clearly respecting that invocation, ceased

- 4 - questioning and left the room, without attempting to persuade

Roundtree to change her mind. Several hours later, after

returning to the room only to make sure Roundtree was

comfortable, detectives resumed questioning. At that time, the

detectives reminded Roundtree of her Miranda rights, of which

she acknowledged affirmatively her understanding. Finally,

police initially questioned Roundtree about her involvement in

an abduction. Details of the incident were sketchy, and only

later did police find out about Washington's injuries. "[T]he

mere fact that the second interview involved some of the same

subject matter discussed during the initial interview does not

render the confession constitutionally invalid." Id. at 471,

450 S.E.2d at 387.

When these factors are applied to the present case, no

violation of Roundtree's constitutional rights occurred. The

record clearly supports the findings that Roundtree knew her

rights and voluntarily waived them and that the police did not

coerce Roundtree's cooperation, but rather fully respected her

invocation of those rights.

As for Roundtree's contention that her statements were made

in violation of her right to counsel, we find that Roundtree did

not adequately preserve this issue for appeal. "No ruling of

the trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds

therefor at the time of the ruling . . . ." Rule 5A:18. See

- 5 - also Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d

630, 631 (1991). This rule extends to claimed errors that deny

constitutional rights. "We refuse to address the constitutional

question because the defendant did not raise it in the trial

court." Cottrell v. Commonwealth, 12 Va. App. 570, 574, 405

S.E.2d 438, 441 (1991).

The judgment of the trial court is affirmed.

Affirmed.

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