Jones v. Commonwealth

• Decision Date: 14 January 2020
• Docket Number: Record No. 1359-18-4
• Citation: Jones v. Commonwealth, Record No. 1359-18-4 (Va. App. Jan 14, 2020)
• Parties: ERIC FITZGERALD JONES v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

ERIC FITZGERALD JONES v. COMMONWEALTH OF VIRGINIA

Record No. 1359-18-4

COURT OF APPEALS OF VIRGINIA

JANUARY 14, 2020

UNPUBLISHED

Present: Judges Huff, AtLee and Malveaux

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA

Lisa B. Kemler, Judge¹

David J. Kiyonaga (Sebastian M. Norton; David J. Kiyonaga PLLC; The Norton Firm, LLC, on brief), for appellant.

A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Eric Fitzgerald Jones ("appellant") was convicted of possession of a firearm after having been convicted of a violent felony, in violation of Code § 18.2-308.2. On appeal, he argues that the trial court erred by: (1) denying his motion to suppress statements obtained in violation of his Fifth Amendment rights; (2) failing to strike the evidence against him as insufficient as a matter of law; and (3) denying in part his motion for stipulation that he had been convicted of a violent felony. For the following reasons, we affirm.

I. BACKGROUND

The Offense

On New Year's Eve, December 31, 2017, Jonathan Tracy viewed a fireworks display from the window of his apartment, located on the fifth floor of a building on North Patrick Street in Alexandria. Shortly after midnight, Tracy, who was familiar with firearms from his service in the military, heard between two and six "pops." When Tracy looked in the direction of the sound, he saw three individuals walking on the sidewalk on Colonial Avenue. The individuals then turned onto First Street and walked toward North Patrick Street. As Tracy watched, one of the men held a gun in the air and fired it several times. Tracy "jump[ed]" back from the window and heard two more shots. He told his wife to call 911 and then returned to the window, where he saw the three men walking down the sidewalk on First Street toward North Patrick Street. Tracy was unable to identify the person firing the firearm.

John Metcalf, who lived nearby, also heard multiple gunshots around midnight. His home faces the entryway to 935 North Patrick Street, an apartment building. Metcalf gave police a video recording ("exterior video") from his surveillance camera. The time-stamped exterior video depicted three men walking toward the intersection of First Street and Colonial Avenue at 12:04 a.m. At 12:05 a.m., the three individuals ran to the doorway of 935 North Patrick Street. One of the men entered the building while the other two remained outside.

Police obtained a surveillance video from the camera inside the entrance of 935 North Patrick Street ("interior video"). This video showed a male individual wearing a snowman sweater standing outside the glass door of the building and then opening the door for another individual who entered the apartment building at 12:05 a.m. This man appeared to be holding a black object in his right hand next to his right thigh. In addition, both the interior video and theexterior video depict the man in the sweater and a third male entering the building at 12:12 a.m., walking in the same direction that the first man had walked when he entered the building.

A 911 dispatcher received a call at 12:05 a.m. reporting gunshots on First Street. Officer Westrick McIlvaine of the Alexandria Police Department arrived at 12:09 a.m. and approached the two men standing outside the entrance to 935 North Patrick Street. McIlvaine briefly spoke with the men but did not detain them.

Police later found nine bullet casings near the intersection of First Street and Colonial Avenue. Forensic analysis determined that all of the casings were Winchester brand .40 caliber S&W bullet casings that were fired from the same weapon. At trial, a firearms expert identified examples of pistols that could expel that type of casing. Images of those firearms were admitted into evidence, but no actual firearms were submitted for analysis or into evidence.

Following appellant's arrest, Detective Bikeramjit Gill interviewed him at police headquarters. Detective Gill testified that he showed appellant still images taken from the interior video at 935 North Patrick Street. Appellant admitted that the person depicted in those images was him. He also admitted to being at the scene where the shots were heard, although he denied seeing anyone fire a gun. He denied that the object visible in his right hand in the interior video was a firearm and stated it was a phone. A black iPhone was recovered from appellant when he was arrested and was admitted into evidence.

Motion to Suppress

Prior to trial, appellant filed a motion to suppress statements he made to police during the interview following his arrest.

The evidence adduced at the motion to suppress hearing was that appellant was arrested on January 18, 2018. At that time, Detective Gill informed him that he was under arrest for a firearm violation. Appellant was then transported to the Alexandria Police Department for aninterview. Detective Ryan Clinch escorted appellant into an interview room. Prior to taking him into the room, Clinch did not ask appellant any questions, nor did he read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Another officer, Officer Brooks, was also present in the interview room.

Almost immediately upon entering the interview room, appellant asked the officers, "Hey, can you call my wife to tell her to call my lawyer for me?" Detective Clinch replied, "Umm, do you know the number?" Appellant responded, "Yeah, I'm going to give you her number." Officer Brooks then said, "Hold on, sit tight." Brooks began removing appellant's handcuffs and helping him to take off his coat. As Detective Clinch was leaving the room to get coffee for appellant, appellant asked, "You're gonna make the phone call," and Clinch responded, "Yeah, yeah, when I get the chance." Detective Clinch then told appellant that he was going to make some coffee and that it would take about ten minutes and exited the room with Officer Brooks, leaving appellant alone in the room.

When Detective Clinch left the room, he informed Detective Gill that appellant "had asked to call his girlfriend and tell her to call his attorney." Neither Gill nor Clinch called appellant's wife. After about ten minutes, Detective Gill entered the interview room. When Gill entered the witness room, he introduced himself to appellant and told him that he needed to advise appellant of his rights before they could talk. Gill reviewed appellant's rights under Miranda with him and confirmed that appellant understood those rights before questioning him further. Appellant signed a written waiver of his rights. Appellant subsequently made the statements that were introduced at trial through Gill's testimony.

At the suppression hearing, appellant argued that his statement, "Hey, can you call my wife to tell her to call my lawyer for me?," was an unambiguous and unequivocal assertion of his right to counsel during a custodial interview. Further, this request was "a demand" and not "aquestion." The Commonwealth contended that appellant's statement was a question that was inherently ambiguous and equivocal.

After hearing argument, the trial court denied appellant's motion to suppress without further comment.

Motion for Stipulation

At the same pretrial hearing, appellant, relying on Old Chief v. United States, 519 U.S. 172 (1997), requested that the trial court require the Commonwealth to stipulate that he had been previously convicted of a felony. He argued that the stipulation should not include any reference to the fact that the felony had been "violent," because to include the nature of the felony would be unfairly prejudicial.

After hearing argument, the trial court granted appellant's motion in part. The court specifically ruled that the Commonwealth could not introduce evidence that appellant's prior violent felony was for "murder"; instead, "the word violent felony will be used."

At trial, the stipulation that appellant had been previously convicted of a violent felony was read to the jury and admitted into evidence. Additionally, the court, upon appellant's request, instructed the jury that "[t]he Commonwealth has offered this stipulation into evidence for the sole purpose of proving that [appellant] was convicted of the prior offense. You should not use this fact for any other purpose in your deliberations."

Motion to Strike

At the conclusion of the Commonwealth's evidence, appellant moved to strike the evidence, arguing that the Commonwealth had not proved that he had ever possessed a firearm. The court took the motion to strike under advisement, and then denied the motion. Appellant presented no evidence, but renewed his motion to strike, which the court denied.

The jury found appellant guilty of possession of a firearm after having been convicted of a violent felony.

Appellant appealed to this Court.

II. ANALYSIS

A. Motion to Suppress

On appeal, appellant first argues that the trial court erred in denying his motion to suppress statements obtained in violation of his Fifth Amendment rights.

"The principle is now well-established that, pursuant to the Fifth Amendment of the United States Constitution, law enforcement officers must inform a suspect in a custodial interrogation of certain rights, including the right to remain silent and to have the assistance and presence of legal counsel during the interrogation." Bass v. Commonwealth, 70 Va. App. 522, 539-40 (2019) (quoting Stevens v. Commonwealth, 283 Va. 296, 302 (2012)). "If the accused expresses a desire to have counsel present during a custodial interrogation, law enforcement officers must cease their interrogation until counsel is present or the accused initiates further communication with the authorities." Stevens, 283 Va. at 302. Our Supreme Court has made clear that "[t]he question [of] whether a suspect actually invoked his right to counsel involves an objective inquiry." Commonwealth v. Hilliard, ...