Alvarez Saucedo v. Commonwealth, Record No. 1440-18-3

• Decision Date: 29 October 2019
• Docket Number: Record No. 1440-18-3
• Citation: 71 Va.App. 31,833 S.E.2d 900
• Parties: Carlos Artur ALVAREZ SAUCEDO v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 31

833 S.E.2d 900

Carlos Artur ALVAREZ SAUCEDO

v.COMMONWEALTH of Virginia

Record No. 1440-18-3

Court of Appeals of Virginia, Lexington.

OCTOBER 29, 2019

Louis Kirk Nagy (The Law Office of Louis K. Nagy, PLC, on briefs), Harrisonburg, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General; Rachel L. Yates, Assistant Attorney General, on brief), for appellee.

Present: Judges O’Brien, AtLee and Athey

OPINION BY JUDGE MARY GRACE O’BRIEN

A jury convicted Carlos Artur Alvarez Saucedo ("appellant") of sodomizing a child under the age of thirteen, in violation of Code § 18.2-67.1(A)(1). The court imposed the jury sentence, eleven years of incarceration, with an additional forty years suspended, pursuant to Code § 18.2-67.1(B)(2). Appellant contends that the court erred in denying a pretrial motion to suppress statements he made to a detective. He also asserts that the court erred by admitting the complaining witness’ prior statements at trial and denying his motion to set aside the verdict based on insufficient evidence. For the following reasons, we affirm appellant’s conviction.

BACKGROUND

G.G., the complaining witness, is appellant’s stepdaughter. In 2013, when G.G. was in first grade, she told a school counselor that appellant had touched her vagina. However, when a social worker and police officer interviewed the child, she recanted her statement.

In 2017, when she was ten years old, G.G. attended a presentation at her elementary school about inappropriate touching. Afterwards, G.G. told Carlita Sheldon, a Child Protective Services employee, that when she was four or five years old, appellant laid on the bed where she was sleeping and licked her vagina. G.G. also said that appellant was drunk at the time. Sheldon obtained permission from G.G.’s mother to take G.G. to the Collins Child Advocacy Center for a forensic interview. Rhoda Miller, a Collins Center employee, conducted the interview, which was videotaped.

On April 19, 2017, Detective Mike Spiggle of the Harrisonburg Police Department interviewed appellant at the police station. Appellant was not in custody. Carlita Sheldon, who is fluent in Spanish, interpreted for appellant during the interview. Appellant denied the allegations and left.

Appellant agreed to return to the station on April 24, 2017 for a polygraph examination. Upon appellant’s arrival, Detective Spiggle and another interpreter, Ramon Ochoa, escorted appellant to the polygraph suite, demonstrated that the door was unlocked, and assured appellant that he was free to leave at any time. Appellant was not handcuffed, and he sat in the chair closest to the door. Detective Spiggle and Ochoa were the only other people in the room.

Detective Spiggle explained that he was investigating appellant for sodomizing a child. He remarked that if appellant touched G.G.’s vagina with his tongue, he "needed to get up and walk out of the room now." Appellant continued to speak with the detective and eventually stated that he "had been drinking that night and he mistook or ... confused [G.G.] for his wife." When asked if he recalled touching G.G.’s vagina with his tongue, appellant replied, "[P]robably, yes," and added, "I’m sure myself I will never do that again." Detective Spiggle left the room, and appellant wrote a statement.

After reviewing the statement with a prosecutor, Detective Spiggle requested more details from appellant. Appellant wrote a second statement in which he admitted that he touched G.G. with his hands and "maybe ... touch[ed] her with [his] tongue." Detective Spiggle placed appellant under arrest at that time.

Prior to trial, appellant moved to suppress his oral and written statements to Detective Spiggle. Although appellant acknowledged that he was not in custody during his initial interview on April 19, 2017, he contended that on April 24, 2017, when Detective Spiggle told him that if he touched G.G. with his tongue he should "get up and walk out," the interview became custodial and the police were required to advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court viewed the videotaped interview from April 24, 2017, and observed that "during the entire interview ... [appellant] appeared to be sitting in a relaxed manner." It found, after considering all the circumstances, that appellant was not in custody and denied the suppression motion.

Pursuant to Code § 19.2-268.3, the Commonwealth filed a pretrial motion to admit three of G.G.’s prior statements: the 2013 report to a school counselor, the 2017 disclosure to Carlita Sheldon, and the 2017 forensic interview with Rhoda Miller at the Collins Center. Appellant agreed that the statements could be admissible but argued that G.G. would have to testify first. The court found that the "totality of the circumstances surrounding each of the three statements provided sufficient indicia of reliability so as to render them inherently trustworthy" and therefore they were admissible under the hearsay exception contained in Code § 19.2-268.3.

At trial, G.G. testified that when she was five years old, she woke one night to find appellant lying on her bed. She stated that appellant pulled her pants down and touched her vagina with his tongue and hands for several seconds. On cross-examination, G.G. acknowledged that she did not know the meaning of "labia majora" or "vulva," but she explained that when she stated appellant had put his tongue on her vagina, she meant her "private area."

G.G. testified that she initially reported the abuse when she was in first grade and told another adult when she was in fourth grade. She stated that she did not remember the Collins Center interview but recalled "going to a place where [she] sat in a blue chair to talk with a video." Miller identified the videotaped interview at trial, and over objection, the Commonwealth played the video for the jury. In the interview, G.G. described the offense, gestured to a picture of a vagina on the table, and said that during the incident, she felt appellant "opening" her "two parts" and "lick[ing] around all of [her] vagina."

During closing argument, appellant argued that G.G. was not credible because her testimony was "all over the place" and she did not "remember anything" about the forensic interview although it only occurred approximately one year before trial. The jury found appellant guilty of forcible sodomy, and he subsequently filed a motion to set aside the verdict. The court denied his motion.

ANALYSIS

A. Suppression Motion

Appellant contends that the court erred by denying the motion to suppress his April 24, 2017 statements to Detective Spiggle. He argues that the statements were obtained in violation of his Fifth Amendment rights under the United States Constitution because Detective Spiggle failed to advise him of his Miranda rights before conducting a custodial interrogation.

"When considering whether to affirm the denial of a pretrial suppression motion, an appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence later presented at trial." Tirado v. Commonwealth, 296 Va. 15, 24-25, 817 S.E.2d 309 (2018) (quoting Commonwealth v. White, 293 Va. 411, 414, 799 S.E.2d 494 (2017) ). "Although ‘[w]e are bound by the trial court’s findings of historical fact unless "plainly wrong," or without evidence to support them,’ ... we review de novo the trial court’s application of legal standards ... to the particular facts of the case." Aldridge v. Commonwealth, 44 Va. App. 618, 638, 606 S.E.2d 539 (2004) (quoting McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493 (2002) (en banc )). An appellate court views the evidence in the light most favorable to the Commonwealth and "accord[s] the Commonwealth the benefit of all inferences fairly deducible from the evidence." Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555 (2004).

The Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V.¹ To safeguard this right, police must advise criminal suspects of their right against self-incrimination prior to subjecting them to custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612–13, 16 L.Ed.2d 694 (1966). However, this requirement does not extend to non-custodial interrogations; the suspect must be "both in custody and subjected to interrogation" before police must provide Miranda warnings. Watts v. Commonwealth, 38 Va. App. 206, 214, 562 S.E.2d 699 (2002).

To evaluate whether a suspect is in custody, the proper inquiry is "how a reasonable person in the suspect’s situation would have understood his circumstances." Dixon v. Commonwealth, 270 Va. 34, 40, 613 S.E.2d 398 (2005). Relevant circumstances include

whether the suspect was physically restrained, whether firearms were drawn, whether there was physical contact between police and the suspect, ... whether police told the suspect he or she was free to leave, whether police engaged in other incidents of formal arrest such as booking [and] whether more than one officer was present.

Hasan v. Commonwealth, 276 Va. 674, 679-80, 667 S.E.2d 568 (2008). The "officers’ demeanor during the encounter, the length of the questioning ... the nature of the questions asked, ... [and] the location of the encounter" are also important factors for courts to consider when determining if a suspect was subject to custodial interrogation. Id. at 680, 667 S.E.2d 568.

Therefore, the number of officers, the degree of restraint, and the nature of the surroundings may all contribute to a finding that a suspect is in custody. Harris v. Commonwealth, 27 Va. App. 554, 565, 500 S.E.2d 257 (1998). However, "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is...