Keepers v. Commonwealth

• Decision Date: 14 April 2020
• Docket Number: Record No. 0279-19-3
• Citation: 840 S.E.2d 575,72 Va.App. 17
• Parties: Natalie Marie KEEPERS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 17

840 S.E.2d 575

Natalie Marie KEEPERS

v.COMMONWEALTH of Virginia

Record No. 0279-19-3

Court of Appeals of Virginia, Lexington.

APRIL 14, 2020

David B. Hargett (Hargett Law, PLC, on brief), Glen Allen, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and O’Brien

OPINION BY JUDGE MARY GRACE O’BRIEN

A jury convicted Natalie Keepers ("appellant") of accessory before the fact to murder, in violation of Code §§ 18.2-18 and -32. Before her trial, appellant pled guilty to unlawful concealment of a dead body, in violation of Code § 18.2-323.02. She does not challenge that conviction.

Appellant asserts the following assignments of error:

1. The trial court erred in denying the motion to suppress the pre-warning and post-warning statements [appellant] made to law enforcement over the course of two days.

2. The trial court erred in denying [appellant’s] motions to strike for cause Juror #24 and Juror #40.

BACKGROUND

Under well-established principles, we state the facts in the light most favorable to the prevailing party, the Commonwealth. Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018). In January 2016, thirteen-year-old N.L.¹ lived with her mother in an apartment in Blacksburg. When N.L.’s mother went to wake her daughter on the morning of January 27, 2016, she discovered the child was missing. A nightstand was pushed up against the bedroom door, the window was open, and N.L.’s backpack, jacket, cell phone, and "Minions" blanket were gone. N.L.’s mother immediately reported her daughter missing.

Three days later, on January 30, 2016, a Virginia State Police special agent discovered N.L.’s unclothed, dead body on the side of a road two miles into North Carolina. Following an autopsy, the medical examiner determined that the child died from stab wounds

to her neck, one of which severed her jugular vein. She also suffered blunt force injuries while still alive, including a broken neck. The medical examiner did not observe any defensive wounds

.

The police investigation focused on David Eisenhauer, a nineteen-year-old student at Virginia Tech. Forensic evidence established that Eisenhauer drove to N.L.’s house on January 27, 2016, at 12:16 a.m. where he remained for five minutes. GPS data showed that Eisenhauer’s vehicle then traveled to Craig Creek Road in Blacksburg and stayed for forty-four minutes before returning to campus.

Eisenhauer and appellant, a freshman engineering student at Virginia Tech, had planned N.L.’s murder in detail, including exchanging text messages on their cell phones. Surveillance cameras from a nearby Walmart revealed that appellant and Eisenhauer purchased a shovel the day before N.L.’s disappearance. On the night of January 26, 2016, they appeared on security-camera footage at a local fast-food restaurant. The following day, appellant helped Eisenhauer move the victim’s body to North Carolina. Eisenhauer subsequently sent appellant a text message stating, "We definitely did overkill[,] but that’s good." Appellant responded, "We are safe and just need to dispose of the one thing and we are done."

On January 30, 2016, after N.L.’s body was discovered, police arrested Eisenhauer for her murder. Eisenhauer identified appellant as an alibi witness, and Detective Ryan Hite of the Blacksburg Police Department and FBI Special Agent Michael Scimeca went to appellant’s dormitory room to interview her. Pursuant to university policy, a Virginia Tech police detective accompanied the investigators on campus. Appellant was not present, but her roommate suggested that she might be at her boyfriend’s off-campus apartment.

A. Police interviews with appellant

At approximately 9:30 a.m. on January 30, 2016, the three officers located appellant at the apartment. The officers were in plain clothes and armed; however, their weapons were not visible under their overcoats. They told appellant that she was "not in trouble" but asked her to come to the police department to discuss "an ongoing investigation." In response to appellant’s questions, the officers advised her that the investigation concerned the missing girl featured on the news. Appellant agreed to accompany the officers, who drove her to the police department in an unmarked SUV; they did not handcuff her or activate their lights or siren during the drive. The police maintained recordings of all their interactions with appellant.

Due to the investigation of N.L.’s disappearance, many law enforcement officers were at the police station. The lobby doors were secured, so the officers brought appellant in through a police-only door that required a key for entry. They spoke with her in a room designated "interview" on the door, which was closed for privacy but not locked. Appellant brought her purse and backpack and was not searched or restrained in any manner. She was permitted to use a bathroom and was offered food and water several times.

After initially denying that she knew anything about N.L.’s disappearance, appellant later stated that Eisenhauer told her he met an underage girl at a party and might have had sex with her. Appellant denied shopping at Walmart with Eisenhauer prior to N.L.’s disappearance, but when the officers presented her with surveillance video footage from the store, she acknowledged being there.

At approximately 12:15 p.m. that same day, appellant gave the police written consent to search her phone. She also admitted texting Eisenhauer earlier that morning and telling him the police were at her door. Although appellant stated that she knew the child was dead, she repeatedly denied being present when Eisenhauer killed N.L. Appellant told the police that Eisenhauer forced her to help move N.L.’s body to the side of the road near the North Carolina border where N.L. was found. She explained that she discarded some of the evidence related to the murder on January 28, 2016, and retained other items, including N.L.’s "Minions" blanket, in her dorm room.

According to Detective Hite, although he no longer considered appellant merely an alibi witness at that time, he did not yet consider her a suspect. He stated that even though she was not detained, she never asked to leave.

At 6:00 p.m., appellant willingly accompanied the police to Craig Creek Road, the location where police suspected the killing occurred. Upon their return to the police station, appellant helped create a timeline of the week that N.L. was killed. Shortly after midnight, the police arrested her for unlawful concealment of a body and accessory to murder. Following her arrest, the police did not question her further, and she was held overnight in jail.

At approximately 12:30 p.m. on January 31, 2016, the police met with appellant at the jail. Appellant was handcuffed and shackled with a waist chain. Using a pre-printed form, the detectives read her the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Detective Hite also told her:

We just want to pick up where we left off and go over some stuff with you.

....

The only issue is clearly we aren’t here to arrest you, charge you, or anything like that[;] but, obviously, at least you’re in the custody of the jail just because you’re here ... so, with that, there is a procedure we need to go over. I have to basically read you your rights.

....

It just says that you’re cool talking to us still, and that, you know, if you change your mind at any time, then you don’t have to, you know, that kind of stuff. But like I said, it’s more of a procedural issue because you’re in their custody. It really doesn’t change anything with us.

....

[A]gain, this is just procedural stuff. What we’ll do is just have you read this and then get you to check it over and get you to fill out and sign if you’re still okay with that. And, you know, it’s a little less glamorous [than] what you hear on TV, but it does kind of sound the same.

For approximately two minutes, appellant reviewed the one-page waiver and, after asking some questions about how to fill it out, signed the document.

The police took appellant to identify several locations related to the crime. While they were out, they learned that an attorney claiming to represent appellant had arrived at the jail. Appellant signed an addendum to her Miranda waiver agreeing to "continue [the] evidence search and meet with [the] attorney later." When the police returned to the jail with appellant that evening, she did not ask for the attorney’s information or to meet with him.

Although she continued to deny being present when N.L. was murdered, appellant admitted that she helped Eisenhauer plan the murder. She told the police that Eisenhauer discussed "offing [N.L.], maybe like a week before [they] came back from [winter] break." She admitted that she helped Eisenhauer pick a location to murder N.L. and being involved in the plan made her feel "special" and part of a secret club.

Before trial, appellant moved to suppress all her statements to the police and any physical evidence obtained as a result. The court held a two-day hearing on appellant’s motion during which both parties played video and audio clips from appellant’s interview, and Detective Hite testified. He described appellant as "intelligent" and "articulate." The court found that appellant voluntarily accompanied the police to the station where, initially, she was not in custody. The court characterized the detectives’ questioning as "conversational" and not "confrontational in any manner," and it concluded that appellant was not coerced into making any statements.

However, the court found that appellant’s custodial status changed at the video timestamp of 15:21² on January 30, 2016, when she asked the detectives if she was in trouble and they responded that they were not sure what would happen to her but her "honesty and cooperation will go a long way." It was at this time, ...