Kuhne v. Commonwealth

Decision Date06 November 2012
Docket NumberRecord No. 0563–11–4.
Citation61 Va.App. 79,733 S.E.2d 667
PartiesJamie Aaron KUHNE v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals


Joseph T. Flood (Sheldon & Flood, PLC, on briefs), for appellant.

Aaron J. Campbell, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ALSTON and McCULLOUGH, JJ.


Jamie Aaron Kuhne challenges his voluntary manslaughter conviction, arguing that certain statements he made to law enforcement should have been excluded as the fruit of an illegal interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We assume, without deciding, that appellant was in custody, and we hold that the statements were admissible under Seibert. We, therefore, affirm the judgment of the trial court.


On December 11, 2009, around 7:20 a.m., Kuhne walked into the lobby of a Herndon police station and told the 911 supervisor, Tammy Farley, that he “need [ed] to be arrested for [his] actions.” He then began to weep. He handed Farley a handwritten note. Farley informed Sergeant Darcy Nidell of what had just happened. Nidell, in turn, informed Sergeant Dennis Royal. As Royal walked toward the lobby, Farley handedhim the note. Royal made copies of the note.

The note states in relevant part:

Words can not express how sorry I am. I wish I could take it back. I did not mean for this to happen[.] I only wanted her to stop saying she would take my son away from me. I waited until morning so I could spend one last night with my son....

I put my wife in a bag on the porch so my son would not see what happened when he woke up this morning. Our address is 718 Tamarack Way ... in Herndon.

We have no close family members. If they will take my son I hope he can be raised by either my mother ... my brother ... or my sister....

I hope I can die. I have lost my spouse and am now utterly alone. I have deprived my son of his mother and father. I have deprived my wife of her daily joy in contact with our son.

The note was not signed.1

Sergeant Michael Berg and Sergeant Nidell arrived in the lobby and introduced themselves to appellant as police officers. Nidell had not seen the note. Nidell said, “I understand you are here and you want to talk about a crime” or “turn yourself in for a crime” or words to that effect. Sergeant Nidell asked appellant where he resided, to determine whether the Herndon police officers had jurisdiction over the case. Berg asked appellant where his wife was, and he responded “in a bag” and provided an address in the Town of Herndon. Berg then asked appellant to put his hands on top of his head so he could be patted down for weapons. Appellant complied, and he was patted down. Berg also took possession of appellant's wallet, car keys, and some papers.

Berg then escorted appellant out of the lobby, through a door, and into a hallway of the police station. This door is secured electronically and opens with a fob. At the end of a hallway that spans 50 to 75 feet, Berg opened a door with a pass key, led appellant into a foyer, and then through a second door that also opens with a pass key and into the interview area. In the interview room, appellant was asked to remove his shoes and lift his feet to ensure that nothing was hidden in the shoes. Appellant complied, and his shoes were returned to him. Appellant was not handcuffed or touched, aside from the initial pat down and the examination of his feet. Berg was not armed. Appellant was seated in an interview room with an open door. Sergeant Berg placed appellant's wallet, keys, scarf, and jacket on a bench in front of the interview room. The interview room is about 10 feet by 12 feet, with a table and a chair. Berg told appellant something like we're going to have you sit and we will get somebody back to talk to you.” Sergeant Nidell found some paper towels and gave them to appellant as he waited for Sergeant Royal. 2

Approximately 20 minutes after Sergeants Berg and Nidell first encountered appellant in the lobby, Sergeant Royal arrived in the interview room. Royal first asked some preliminary questions, such as appellant's name, date of birth, and address, and whether he has any medical issues, such as diabetes. Royal next asked appellant if he had written the note. Appellant stated that he had. Royal then issued Miranda warnings to appellant. Appellant also signed a written form waiving his Fifth Amendment rights. Royal proceeded to question appellant. The interview lasted about an hour.

In the interview, appellant explained that he was in the process of separating from his wife, Minghua Zheng. Appellant stated that she pressured him to sign a paper prepared by her lawyer, but he was reluctant to do so without first consulting an attorney. He stated that his wife told him that she would take him to court and charge him with cruelty and that he would never see his son again. He told her, [H]e's my son, I should be able to see my son.” Appellant stated that she laughed at him. Although appellant stated that he does not remember doing this, appellant at some point strangled his wife and put her body in a bag. After killing her, he placed the bag outside. He then wrote the note, initially intending for it to serve as a suicide note.

The videotaped interview is part of the record. It depicts a distraught appellant unburdening himself to Sergeant Royal. Sergeant Royal was gentle and compassionate in his demeanor throughout the interview. At the conclusion of the interview, appellant was arrested and handcuffed.

Police arrived that morning at the address mentioned in the note. They found Zheng's body in a large suitcase on the balcony.

Kuhne was charged with the murder of his wife. Prior to trial, he filed a motion to suppress his statement to the police, arguing that it was obtained in violation of his Miranda rights. At the hearing, Sergeant Royal stated that he was familiar with the deliberate “two-step” interview practice—one in which the police deliberately omit Miranda warnings, obtain incriminating statements, and then prod a suspect to confess anew following Miranda warnings—but he testified that the Herndon Police Department had never used that practice and that he never had used it. Sergeant Nidell stated that she had only recently become familiar with the two-step interrogation procedure. She testified that [i]t's not anything that we practice and I've never seen it practiced or an interview handled that way.” Finally, Sergeant Berg stated that he did not know what the two-step interrogation was until defense counsel explained it to him shortly before trial. Berg stated that to his knowledge, this practice had never been employed in his 24 years with the Herndon Police Department.

The trial court denied the suppression motion, concluding that appellant was not in custody. The court further held that, even if he had been in custody, the actions of the police did not implicate the decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

At the conclusion of a jury trial, appellant was convicted of voluntary manslaughter and sentenced to serve seven years in the penitentiary.


Appellant contends that the trial court erred in refusing to suppress his statement to the police. First, he argues that he was in custody for Miranda purposes, and, therefore, any statements he made prior to those warnings must be suppressed. Second, he contends that this Court should follow the plurality decision of Seibert authored by Justice Souter, 542 U.S. at 604, 124 S.Ct. at 2605–06, and exclude all of appellant's statements to the police, including those that occurred after he was given Miranda warnings. We will assume, without deciding, for purposes of this opinion, that appellant was in custody and, therefore, appellant should have been issued Miranda warnings from the outset of the interrogation. Nevertheless, the concurring opinion by Justice Kennedy in Seibert, which we adopt as constituting the narrowest ground, establishes that the statements appellant made after receiving Miranda warnings were admissible.

On appeal, the burden rests with appellant to show that the denial of his suppression motion constituted reversible error. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). The reviewing court is bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them, and “must give deference to the inferences that may be drawn from those factual findings.” Commonwealth v. Hilliard, 270 Va. 42, 49–50, 613 S.E.2d 579, 584 (2005). The trial court's determination that the provision of Miranda warnings cured actual, or, in this instance, assumed, constitutional violations raised by the earlier police interrogation is a legal determination, subject to de novo review by this Court. See, e.g., Harris v. Commonwealth, 27 Va.App. 554, 561, 500 S.E.2d 257, 260 (1998); Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996).

In 1966, the United States Supreme Court, concerned about “police violence and the ‘third degree’ as well as the inherent psychological effects of incommunicado interrogation in a police-dominated atmosphere, fashioned the now famous Miranda warnings that police must issue prior to interrogating suspects who are in custody. 384 U.S. at 445–58, 479, 86 S.Ct. at 1612–19, 1630–31. The Court designed these warnings to “assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” Id. at 439, 86 S.Ct. at 1609. The Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards...

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12 cases
  • Secret v. Commonwealth
    • United States
    • Virginia Supreme Court
    • October 11, 2018
    ...the same issue, that the Seibert "deliberateness finding is appropriately reviewed as a factual finding." Kuhne v. Commonwealth , 61 Va. App. 79, 92, 733 S.E.2d 667 (2012) (quoting United States v. Narvaez-Gomez , 489 F.3d 970, 974 (9th Cir. 2007) ); see also Mashburn , 406 F.3d at 309. Acc......
  • State v. Tyler
    • United States
    • Iowa Supreme Court
    • June 30, 2015
    ...whether the plurality opinion or Justice Kennedy's concurring opinion provides the controlling rule. See Kuhne v. Commonwealth, 61 Va.App. 79, 733 S.E.2d 667, 673 (2012) (“The Seibert plurality would review all two-step interrogations under a multi-factor test.... Justice Kennedy's opinion ......
  • Keepers v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • April 14, 2020
    ...plainly wrong or without evidence in reaching its decision. Secret, 296 Va. at 223-24, 819 S.E.2d 234 (quoting Kuhne v. Commonwealth, 61 Va. App. 79, 92, 733 S.E.2d 667 (2012) ).Here, the court’s factual findings support its conclusion that the detectives did not deliberately violate Mirand......
  • State v. Abbott
    • United States
    • Georgia Supreme Court
    • March 15, 2018
    ...Wass , 162 Idaho 361, 396 P.3d 1243, 1248 (2017), petition for cert. filed, No. 17-425 (U.S. Sep. 20, 2017); Kuhne v. Commonwealth , 61 Va.App. 79, 733 S.E.2d 667, 672-673 (2012). See also Reyes v. Lewis , 833 F.3d 1001, 1002-1003 (9th Cir. 2016) (W. Fletcher, J., concurring); David M. Niss......
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