McFadden v. Com.

• Decision Date: 11 March 1983
• Docket Number: No. 820698,820698
• Citation: 225 Va. 103,300 S.E.2d 924
• Parties: Richard Earl McFADDEN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 924

300 S.E.2d 924

225 Va. 103

Richard Earl McFADDEN v. COMMONWEALTH of Virginia.

Record No. 820698.

Supreme Court of Virginia.

March 11, 1983.

Thomas W. Dixon, Jr., Staunton (Nelson, McPherson, Summers & Santos, Staunton, on brief), for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, ^* STEPHENSON and RUSSELL, JJ.

COMPTON, Justice.

The question in this criminal appeal is whether inculpatory statements made by the accused were voluntary and were made with a knowing, intelligent waiver of the right to counsel.

On April 23, 1980, the Humpback Rock Visitors' Center, operated by the National Park Service on the Blue Ridge Parkway in Augusta County, was entered unlawfully. A calculator, a wooden plane, a flat iron, and a flag were stolen. Almost a year later, on April 19, 1981, the Center was again vandalized. Publications offered for sale were stolen, and the building was destroyed by fire.

Subsequently, after a suppression hearing and a bench trial, defendant Richard Earl McFadden was convicted for the 1980 crimes of breaking and entering, and petit larceny. He was also convicted of the 1981 crimes of breaking and entering, grand larceny, and arson. Defendant appeals the January 1982 judgment of conviction sentencing him to a total of 11 years in prison plus 12 months in jail for the foregoing offenses.

According to settled appellate principles, we will view the facts, although disputed, in the light most favorable to the Commonwealth. During this recitation, completeness requires reference to crimes allegedly involving McFadden which occurred in Amherst County and Nelson County, unrelated to the instant Augusta County offenses.

Ten days after the 1981 Augusta crimes, on April 29 about 8:00 p.m., defendant, age 23, was brought from his Lynchburg home by an Amherst deputy sheriff to a magistrate's office in Madison Heights for questioning. McFadden was employed as an Institutional Police Officer on the grounds of the Lynchburg Training School and Hospital. After advising defendant of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Investigator Morris of the Virginia Division of Forestry began to interrogate McFadden about fires that had been set in Amherst County. In a few minutes, defendant said, "I'm not going to say any more. I want to see a lawyer." Morris immediately ceased the questioning and left the room.

Amherst Deputy Sheriff Brown, a personal friend of defendant, then entered the room and talked to McFadden for 20 minutes. Morris had advised Brown that defendant wanted a lawyer. Initially, McFadden told Brown he desired counsel and that he did not want to talk to Brown. The two then discussed defendant's job and their service together as police officers. Brown told defendant that he could be charged as a police officer for withholding evidence (a non-existent crime, according to the Attorney General). Defendant said, "Let me think about it." As Brown was leaving the room, defendant said he would "go ahead" and talk to Brown "about it." Brown then advised defendant of his Miranda rights and defendant executed a written waiver of those rights. Next, Brown interrogated McFadden about the Amherst fires, not the instant offenses.

Defendant was permitted to leave the magistrate's office before 9:00 p.m. to return home. Near midnight, Brown went to defendant's home, brought him back to the magistrate's office, advised him of his Miranda rights, questioned him about 15 minutes (not about the present offenses), and returned defendant to his home.

Some time after noon on April 30, defendant reported to the Amherst Sheriff's Office in response to a call from another Amherst deputy. McFadden was arrested, charged with setting fires in Amherst County, and counsel was appointed to represent him on those charges. The record does not reveal whether defendant talked to the attorney before 4:00 p.m. on that day, when Chief Deputy Dixon, of the Nelson County Sheriff's Department, began questioning McFadden in Amherst County about a break-in of a rescue squad building in Nelson County.

Prior to any interrogation, Dixon warned defendant as required by Miranda and McFadden signed a waiver of rights. Upon request, defendant executed a consent form authorizing the police to search his automobile in connection with the Nelson County offenses. Dixon departed to search the vehicle, returning about one hour later. Thereupon, the officer again advised defendant according to Miranda. McFadden again executed a waiver of his rights, gave a statement about the Nelson crimes, and, at 5:55 p.m., executed another form granting permission to search his residence. At the time, Dixon was not investigating the instant Augusta County offenses and thus did not ask defendant about them.

During the search of defendant's home about 5:00 a.m. on May 1, Dixon discovered and seized a calculator and wooden plane, stolen during the 1980 Augusta incident. When searching defendant's car, Dixon had observed some publications, apparently taken from the Humpback Center in the 1981 break-in.

Later on May 1, about 8:00 a.m., Dixon again read defendant his Miranda rights and McFadden made an oral waiver. He then admitted participation in the 1981 Augusta crimes; the confession was later received in evidence at trial. Dixon did not interrogate defendant about the 1980 Augusta offenses. Also, Dixon had not been told that defendant earlier had requested an attorney during interrogation about Amherst charges. Moreover, McFadden at no time during his contact with Dixon asked for an attorney.

On May 6, 1981, after McFadden orally waived his Miranda rights, Investigator Fisher of the Augusta Sheriff's Department interrogated defendant in the Amherst Sheriff's Office about the 1980 Augusta offenses. McFadden confessed to breaking and entering the Center and stealing the various items reported missing; that statement was also introduced at trial. During Fisher's interview, defendant never requested an attorney.

Subsequently, defendant was indicted for the offenses and arrested. Following the suppression hearing and again during trial, the court below denied defendant's motions to exclude the plane and calculator as well as the statements of May 1 and 6 from evidence. Implicit in the court's ruling was the finding that defendant voluntarily consented to the search of his home, and that the statements were likewise voluntary, made after a knowing, intelligent waiver of counsel. The foregoing evidence of the Commonwealth was supplemented at trial by the testimony of an accomplice and other witnesses, resulting in defendant's convictions.

Preliminarily on appeal, defendant attacks the voluntariness of the consent to search and of the confessions. The claim, based on defendant's testimony at the pre-trial hearing, is that McFadden was subject to police coercion, intimidation, and duress. But voluntariness is a factual question. The determination of such issue by the trial court on conflicting evidence will not be disturbed on review unless plainly wrong. Witt v. Commonwealth, 215 Va. 670, 674-75, 212 S.E.2d 293, 297 (1975). Here, the factual decision turned on the credibility of witnesses--the law enforcement authorities versus the accused--and we cannot say that the trial court's determination in favor of the prosecution was plainly wrong.

As the defendant correctly observed during oral argument before us, the scope of the real issue on appeal is confined to the question whether use of the confessions at trial violated defendant's right, under the Fifth and Fourteenth Amendments, to have counsel present during custodial interrogation, as declared in Miranda and refined in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See Va. Const. art. I, §§ 8 and 11.

In Edwards, the defendant was arrested on a state-court complaint charging him with robbery, burglary, and murder. At the police station, he was informed of his...