Gwaltney v. Com.

• Decision Date: 03 January 1995
• Docket Number: No. 2500-92-1,2500-92-1
• Citation: 19 Va.App. 468,452 S.E.2d 687
• Parties: Veronica Lois GWALTNEY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 687

452 S.E.2d 687

19 Va.App. 468

Veronica Lois GWALTNEY v. COMMONWEALTH of Virginia.

Record No. 2500-92-1.

Court of Appeals of Virginia.

Jan. 3, 1995.

Herman T. Benn, Suffolk (Benn & Benn, on brief), for appellant.

G. Russell Stone, Jr., Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., Janet F. Rosser, Asst. Atty. Gen., on brief), for appellee.

Present: BARROW, KOONTZ and ELDER, JJ.

KOONTZ, Judge.

Veronica Lois Gwaltney appeals her conviction for embezzlement in violation of Code § 18.2-111. Gwaltney contends the trial court erred in failing to suppress an inculpatory statement she made to police. She further contends the evidence was insufficient to prove the entrustment relationship necessary for embezzlement. For the reasons that follow, we affirm Gwaltney's conviction.

I. BACKGROUND

The charge of embezzlement arose out of the disappearance of one thousand dollars from a teller's cash drawer at the bank where Gwaltney was employed. Lloyd Dobbs, a special agent with the Virginia State Police Bureau of Criminal Investigation testified at a suppression hearing preceding Gwaltney's trial that he was assigned to investigate the loss of these funds. At the time Gwaltney was interviewed by Dobbs, the investigation had not identified her or any other employee of the bank as a suspect. Gwaltney was given Miranda warnings prior to the interview and executed a rights waiver.

Dobbs testified that he did not recall telling Gwaltney he could "make it easier for [her] if [she] confessed." Rather, he testified that he told Gwaltney that if she cooperated she would be eligible for a plea agreement. Dobbs denied assuring Gwaltney that her confession would be between the two of them and "never go any further than this room."

Dobbs further testified that Gwaltney first told him that she had not taken the money but later broke down and stated that she had taken the money to pay bills. Upon receiving Gwaltney's admission of guilt, Dobbs contacted the lead investigator, who then conducted a separate interview. When this investigator "was starting to lose her," Dobbs returned from an adjoining observation room to the interview room. Dobbs testified that at that time Gwaltney had regained her composure and "flat out denied that she had made the statement" admitting her guilt.

Gwaltney testified that Dobbs had assured her that her confession would be kept in confidence. She further testified that Dobbs had promised she would not go to jail and told her to think about her children's welfare. Gwaltney denied that she admitted taking the money.

The trial judge found no evidence that Gwaltney's will had been overborne or that her statement was coerced and stated that he did not believe Dobbs had stated the conversation was in confidence. Accordingly, Gwaltney's suppression motion was overruled and the matter proceeded to trial. At trial, Dobbs reiterated his version of Gwaltney's confession. On cross-examination, Dobbs testified that he told Gwaltney that "you and I are the only ones in the room," and that he "was not going to spill [his] guts" about Gwaltney. Dobbs further testified he frequently did this to put the subject at ease.

Valerie Butler, the bank's branch manager, testified that on the day the cash was discovered missing, she, Gwaltney, head teller Debbie Owens, relief teller Nancy Allen, and new accounts officer Monica Green were all working at the bank. Only Gwaltney, Owens and Allen worked behind the teller line that day. Gwaltney left early for a doctor's appointment between 11:30 a.m. and noon and her cash drawer was reconciled at that time. Gwaltney returned at the close of business to comply with a policy of the bank and that two employees be present when the doors are locked.

Allen's cash drawer was found to be one thousand dollars short when it was reconciled at 2:00 p.m. Butler and the other tellers were not able to account for the missing funds. On cross-examination, Butler conceded that, contrary to policy, tellers might leave their cash drawers unlocked and unattended for short periods during the day.

Nancy Allen testified that she was assigned to this branch of the bank as a relief teller. During the morning, Gwaltney asked Allen to complete a "stop payment request" that Gwaltney had received. She recalled thinking at the time that this was a strange request. Allen recounted how the bank personnel had attempted to find the shortage in her cash drawer and described her transactions for the day. She was certain she had not disbursed the one thousand dollars in error. On cross-examination, Allen stated that Gwaltney gave no reason for wanting Allen to complete the stop payment form. She denied that Gwaltney said there was a customer waiting at the drive-up window.

II. SUPPRESSION OF INCULPATORY STATEMENT

The burden is upon the Commonwealth to prove that extra-judicial inculpatory statements were made voluntarily before they can be admitted in evidence against one charged with or suspected of the commission of a crime. Campbell v. Commonwealth, 194 Va. 825, 830, 75 S.E.2d 468, 471 (1953). Absent a knowing and intelligent waiver of the Fifth Amendment right against self-incrimination, a statement made by a suspect during in-custody interrogation is inadmissible. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Even when the suspect has made a valid waiver, an inculpatory statement is inadmissible if it appears that it was made involuntarily. See Miller v. Fenton, 474 U.S. 104, 106-09, 106 S.Ct. 445, 447-49, 88 L.Ed.2d 405 (1985). Whether such a statement was voluntary or the result of coercive police activity is a legal question to be determined from a review of the totality of the circumstances. Id. at 110-12, 106 S.Ct. at 449-51.

In examining the totality of the circumstances, a court must consider a myriad of factors, including the defendant's age, intelligence, background and experience with the criminal justice system, the purpose and flagrancy of any police misconduct, and the length of the interview. Harrison v. Commonwealth, 3 Va.App. 260, 265, 349 S.E.2d 167, 169-70 (1986). The totality of the circumstances also includes moral and psychological pressures to confess emanating from official sources. See Kauffmann v. Commonwealth, 8 Va.App. 400, 406, 382 S.E.2d 279, 282 (1989).

This Court must make an independent evaluation of the evidence to determine whether Gwaltney's statement was voluntary. In doing so, we may rely upon the observations of the trial judge and his findings of fact, except as to the ultimate issue of voluntariness. Goodwin v. Commonwealth, 3 Va.App. 249, 253, 349 S.E.2d 161, 163 (1986). Here, the evidence shows that Gwaltney was informed of her right to remain silent. She chose to waive that right and executed a form signifying that choice. While Gwaltney may have been influenced by the interrogation tactics of the officer, the interrogation was not so compelling or coercive that she was not able to consider her options and exercise her will. See Wilson v. Commonwealth, 13 Va.App. 549, 554-55, 413 S.E.2d 655, 658 (1992). Accordingly, we hold that the trial court did not err in refusing to suppress evidence of Gwaltney's inculpatory statement.

III. EVIDENCE OF AN ENTRUSTMENT RELATIONSHIP

Gwaltney further contends the evidence was insufficient to show that an entrustment relationship existed between her and her employer with respect to money kept in another teller's cash drawer and that without such evidence her crime would be merely larceny. While we agree that the specific charge of embezzlement requires proof of elements different from those of common law larceny, we reject Gwaltney's assertion that the evidence presented was insufficient to establish those elements. Gwaltney's challenge to the sufficiency of the evidence in effect asserts that the Commonwealth was required to prove the crime charged in the indictment. We agree that the discretion in selection of charges afforded the Commonwealth is a two-edged sword. Once an indictment is brought and jeopardy has attached, the Commonwealth must prove that charge or a lesser-included offense in order to obtain a conviction. See Martin v. Commonwealth, 13 Va.App. 524, 529, 414 S.E.2d 401, 403 (1992). Discretion implies a thoughtful, informed choice, and here, the designation of embezzlement as the specific form of larceny to be...