Bunch v. Com.
| Decision Date | 17 June 1983 |
| Docket Number | No. 822081,822081 |
| Citation | 225 Va. 423,304 S.E.2d 271 |
| Court | Virginia Supreme Court |
| Parties | Timothy Dale BUNCH v. COMMONWEALTH of Virginia. Record |
Richard H. Boatwright, Manassas, Lloyd D. Hinrichs, Dumfries (Stephens, Boatwright & Howard, Manassas, on brief), for appellant.
Jerry P. Slonaker, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Before CARRICO, C.J., COCHRAN, POFF, COMPTON, STEPHENSON and RUSSELL, JJ., and HARRISON, Retired Justice.
Indicted for capital murder in the commission of robbery while armed with a deadly weapon, Code § 18.2-31(d), Timothy Dale Bunch was tried by a jury and found guilty as charged. In the sentencing phase of the bifurcated proceeding, the jury fixed Bunch's punishment at death. After receipt of a pre-sentence report, the trial court confirmed the jury's verdict and imposed the death penalty. Bunch is here for automatic review of his death sentence. This review has been consolidated with Bunch's appeal from his conviction, and the matter has been given priority on our docket. Bunch seeks, alternatively, a new trial on a non-capital offense, a new trial on the capital charge, or commutation of his death sentence.
The record shows that in the months of December, 1981, and January and February, 1982, Bunch, a sergeant in the United States Marine Corps, was detached from duty in Japan and assigned to temporary duty at Quantico in Prince William County. During this period, he met Su Cha Thomas, a divorced woman living alone in Dale City near Quantico, and an intimate relationship developed between them. At the time, Bunch was separated from his wife.
On February 2, after Thomas had failed to report for work, Prince William County police went to her home and found her body hanging from a door knob by a scarf tied around her neck. An autopsy revealed a gunshot wound to the head and "congestion of the blood [vessels] within the lungs." The medical examiner concluded "this was a combined cause of death due to a gunshot wound to the head ... with a secondary complication, asphyxiation by hanging."
One of the items missing from Thomas's home was a lady's Rolex wristwatch. On the day Thomas's body was discovered, Bunch sold a similar watch to an Arlington County pawn shop. A report filed by the pawn shop with the police, as well as other information, led investigators to Bunch, who had returned to his permanent duty station in Japan.
Bunch was interrogated in Japan on February 16 by Donald L. Cahill, a Prince William County police investigator who had journeyed to Japan with warrants charging Bunch with the robbery and murder of Thomas. In the course of the interrogation, Bunch made certain incriminating statements to Cahill. Bunch was returned to the United States, and, upon his arrival in Prince William County on February 21, made a statement to Cahill admitting he had killed Thomas on January 31 and had taken her Rolex watch, a diamond ring, a string of pearls, and other items of jewelry. Bunch stated he killed Thomas because "she was a slut and she reminded him too much of his wife and he wanted her money."
In a pretrial motion, Bunch sought to suppress the confession he made to Investigator Cahill on February 21, following his return to Prince William County from Japan. In the motion, Bunch claimed that he gave the confession after his earlier "requests for counsel had been unfulfilled." Finding that Bunch had requested and been denied the assistance of counsel in Japan, the trial court suppressed the incriminating statements made there by Bunch. The court refused, however, to suppress the confession Bunch gave to Investigator Cahill on February 21 in Prince William County. Bunch contends this refusal was error.
The record shows that Investigator Cahill was accompanied to Japan by William Hamblen, an assistant Commonwealth's attorney for Prince William County. Upon their arrival at Bunch's duty station at Iwakuni, Bunch was brought to Naval Intelligence Service Headquarters by military police. He was placed in a room with Cahill and Hamblen, and Cahill read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Bunch signed a "Warning and Consent" form and indicated he was willing to talk. Cahill then began to interrogate him.
According to Bunch's testimony at the suppression hearing, he asked to consult counsel "approximately a dozen times" during the interrogation at Iwakuni. Cahill and Hamblen denied Bunch made any outright request for counsel, but claimed he stated once, after the interrogation had continued for some time, that "he felt like he might want to talk to a lawyer." When this statement was made, Hamblen left the room and Cahill talked to Bunch on another matter an additional several minutes. Then, as Cahill was leaving the room to ask Hamblen whether the interrogation should continue in light of Bunch's statement concerning counsel, Bunch stated he would cooperate. He told Cahill that "the gun" was at his mother's home in Indiana and that "the ring" was in Japan.
Cahill and Hamblen decided Bunch should not be interrogated further unless he signed another "Warning and Consent" form. When a new form was presented to him, Bunch refused to sign it, and the interview was terminated.
In the custody of military personnel, Bunch was transported by plane from Japan to Dulles Airport in northern Virginia and by automobile from Dulles to Quantico, the trip consuming some forty-two hours. Although he was not questioned during the trip about Thomas's murder, military personnel escorting Bunch advised him of his Miranda rights on the flight from Los Angeles to Dulles. Upon arrival in Quantico after midnight on February 21, Bunch was processed for delivery to Prince William County authorities.
As a part of this process, Bunch consulted with Major Donald R. Jillisky, a lawyer attached to the Marine Judge Advocate General's Office. The major told Bunch that he was "a Marine Corps lawyer ... not his lawyer" and that it was his, the major's, purpose "to inform [Bunch] of what his situation was and to surrender him to State authorities." Jillisky informed Bunch of the charges against him and told him he would be required to hire his own lawyer or secure court-appointed counsel. Jillisky advised Bunch that "he did not have to say anything until he consulted with his lawyer, and that it was probably not in his best interest to say anything until he consulted with his lawyer."
At the conclusion of the processing at Quantico, Bunch was turned over to Investigator Cahill, who transported him to a Prince William County police substation. En route, Cahill asked Bunch "if he felt he was ready to sit down and go over the case." Cahill told Bunch that "[i]t was entirely up to him" and that "he certainly was not required to talk to [Cahill] if he didn't want to." Bunch stated that he had talked to the lawyer at Quantico and had been advised "not to say anything" and to talk to a civilian lawyer before talking to the police. Bunch added, however, that he had decided "he was ready to tell the whole story" and that "he wanted to get it off his chest."
At the substation, Bunch was advised of his Miranda rights, and he executed a "Warning and Consent" form. He then proceeded to give Cahill the confession that is now in controversy.
At the conclusion of the suppression hearing, the trial court ruled that Bunch had "intelligently, wittingly, freely and voluntarily ... waived [his Miranda ] rights" before he gave Cahill his confession. Accordingly, the court held that the confession was admissible into evidence.
Bunch argues that the confession should have been suppressed because, despite his request, he was denied counsel during his interrogation in Japan, as the trial court found in holding inadmissible the incriminating statements he made there. Then, citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Bunch asserts that he should not have been interrogated again until he was allowed to consult with counsel or unless he initiated the second interrogation himself. He did not initiate the second interrogation, Bunch maintains, and his discussion with Major Jillisky did not satisfy the requirement that he be allowed to consult counsel before he was interrogated further.
In Edwards, the accused was arrested for robbery, burglary, and murder. After he was informed of his Miranda rights, he indicated a willingness to submit to questioning. During the course of the interrogation by a police officer, the defendant stated he wanted an attorney, and the questioning ceased. The next morning, two detectives who were colleagues of the previous day's interrogator went to the jail and asked to see the accused. When informed of the request, the accused told the jail guard he did not want to talk to anyone. The guard told the accused that " 'he had' to talk" to the officers and took him to them. Id. at 479, 101 S.Ct. at 1882. They advised him of his Miranda rights. He indicated he was willing to talk and thereupon implicated himself in the crime.
Holding that the use of the accused's confession at trial violated his rights under the Fifth and Fourteenth Amendments, the United States Supreme Court reversed the conviction. In the course of its opinion, the Court stated:
[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or...
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