Blain v. Com.

• Decision Date: 06 September 1988
• Docket Number: No. 1390-86-2,1390-86-2
• Parties: Mark Waller Randolph BLAIN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 838

371 S.E.2d 838

7 Va.App. 10

Mark Waller Randolph BLAIN v. COMMONWEALTH of Virginia.

Record No. 1390-86-2.

Court of Appeals of Virginia.

Sept. 6, 1988.

John H. McLees, Jr., Public Defender (Richmond Public Defender's Office, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and COLE, JJ.

COLE, Judge.

Mark Blain, a prisoner in the Virginia State Penitentiary, was convicted in a jury trial of robbery and first degree murder and sentenced to twenty-five years and life imprisonment, respectively. His appeal raises the following questions: (1) whether his statements made to investigators during a search of his cell when he had not been given Miranda warnings were properly admitted as evidence against him at trial, and (2) whether the trial court properly excluded reputation evidence concerning a Commonwealth's witness that tended to exculpate Blain. We find no error and affirm the convictions.

I.

On November 30, 1985, at approximately 11:00 p.m., William White, an inmate at the Virginia State Penitentiary, was found stabbed to death in his cell. State Investigator W.P. Terry arrived at the penitentiary shortly before midnight and conducted a crime scene investigation. Based on information obtained during the investigation, a shakedown, or search, of seven inmates' cells, including Blain's, was conducted. Prison investigators had information that Blain was involved in the murder. During the early morning of December 1, 1985, when the inmates were confined to their cells, Investigators Terry and Brown and two uniformed correctional officers went to Blain's cell to search it for evidence of the murder. Pursuant to standard prison procedures, Blain was required to exit his cell and stand on the narrow tier outside. A correctional officer was on each side of him. He testified that he did not feel free to leave, and, in fact, Terry and Brown stated that Blain was not free to leave. Although Terry said Blain was not handcuffed during the search, Blain and Brown said that he was.

During the search of Blain's cell, Terry seized an imitation Rolex watch, a stainless steel ring, and a gold tiger eye ring that were known to belong to White. Terry held up the watch in his left hand and the rings in his right hand. At first, Blain stated that "it" was not his. Terry understood him to be referring to the watch because both Terry and Blain were looking at it rather than the rings. Blain then said that he had purchased the items from an inmate but could not remember which one.

Terry also discovered a Levi denim jacket hanging on a hook in Blain's cell and said to Brown that it was extremely wet. Blain told the officers that he had been playing basketball outside when it had been raining. Blain's other clothing was dry. A forensic examination of the jacket revealed that it had been washed recently and showed traces of fresh blood on the cuff and on the lower front. Blain had no cuts or scrapes at the time that would explain the presence of blood on the jacket.

Terry denied that he had questioned Blain about the jewelry or the jacket. Brown at first could not remember whether Terry had questioned Blain and then he said that Terry had not. However, Brown's investigative notes stated that "when questioned about the watch ... Blain said he bought the watch from someone but could not remember his name." (emphasis added). Brown then conceded that Blain might have been questioned about the watch during the search of his cell, before being advised of his rights.

Blain moved to suppress his statements as obtained in violation of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court overruled the motion, and Blain was tried and convicted of robbery and first degree murder.

"[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized," and the individual must, prior to questioning, be given certain commonly-known warnings. Miranda, 384 U.S. at 478-79, 86 S.Ct. at 1629-30. Failure to give Miranda warnings prior to custodial interrogation requires suppression of any illegally obtained statements. Id. at 479, 86 S.Ct. at 1630. Before Miranda is triggered, however, an individual must be both in "custody" and subjected to "interrogation."

Blain argues that the fact that he was a prisoner in the Virginia State Penitentiary establishes ipso facto that he was in "custody" for purposes of Miranda. He bases this argument on Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1967), in which the Supreme Court held that a prisoner's fifth amendment rights were violated when he was questioned, without being given his Miranda warnings, concerning possible tax evasion while in prison on other charges. However, Blain's conclusion that a prison inmate is automatically in "custody" for purposes of Miranda is incorrect.

[Blain's] view of the Mathis decision would seriously disrupt prison administration by requiring, as a prudential measure, formal warnings prior to many of the myriad informal conversations between inmates and prison guards which may touch on past or future criminal activity and which may yield potentially incriminating statements useful at trial.... [T]his approach would "torture [Miranda] to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart."

United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985) (quoting Cervantes v. Walker, 589 F.2d 424, 427 (9th Cir.1978)). Clearly, "[p]risoners do not have greater Fifth Amendment rights than other persons." Beamon v. Commonwealth, 222 Va. 707, 710, 284 S.E.2d 591, 592 (1981).

Since a prisoner is not automatically in "custody" because of his status as such, we must determine when, in fact, a prisoner is in "custody" for purposes of Miranda. "A rational inmate will always accurately perceive that his ultimate freedom of movement is absolutely restrained and that he is never at liberty to leave." Conley, 779 F.2d at 973. Therefore, the test usually applied to determine "custody" is inappropriate and a special test applicable only to prisoners must be developed. The test applied in the fourth and ninth circuits, that we adopt today, is whether there has been "a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement." Cervantes 589 F.2d at 428; see Conley, 779 F.2d at 973. A prisoner is in "custody," then, if he is "subjected to more than the usual restraint on a prisoner's liberty to depart." Id.

Based on the foregoing test, we find that Blain was not in "custody" for purposes of Miranda. The evidence must be viewed in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). Although the evidence was conflicting, we accept the evidence in the light most favorable to the Commonwealth and conclude that Blain was not handcuffed. During the search, Blain was required to vacate his cell and stand between two correctional officers on the tier outside of his cell. The search was conducted during hours when all inmates were confined to their cells and when Blain had no freedom of movement other than in his cell. Once Blain exited the cell, it was expedient to have an officer on each side of him because at that time neither he, nor any other prisoner, was permitted to leave his cell. The officers were, in essence, creating a temporary "constructive cell" during the brief period of the search.

The record establishes that the search was made pursuant to standard prison procedures. Whenever any cell in the prison is searched, the prisoner is required to exit cell in order to permit a thorough search of the cell in an atmosphere as free of coercion as possible. To have several officers and a prisoner in a small cell together could create a hostile situation filled with tension and danger to the officers and make the search of the quarters difficult. Further, Blain was not removed from his cell for the purpose of questioning, but for the purpose of searching it for stolen items pursuant to standard prison procedure applicable to all such searches of the entire prison population. We, therefore, find no "added imposition on [Blain's] freedom of movement" and find that he was not in "custody" for purposes of Miranda.

We likewise find that Blain was not interrogated within the meaning of Miranda. In Miranda, the Court stated that "custodial interrogation" means "questioning initiated by law enforcement officers." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. The Court later held, however, that interrogation includes not only express questioning but also its "functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). The Court defined the "functional equivalent" of questioning as "any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. If a suspect's statement was not foreseeable, then it is volunteered. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [Miranda]." Miranda, 384 U.S. at 478, 86 S.Ct. at 1630. We interpret the Innis standard as requiring a determination whether an objective observer would view an officer's words or actions as designed to elicit an incriminating response.

Blain contends that he was expressly questioned concerning the stolen items and the jean jacket. Although Brown's notes suggest that Blain was questioned, both Brown and Terry denied that he was. The trial court resolved the issue in favor of the...