Morris v. Com.

• Decision Date: 25 January 1994
• Docket Number: No. 1688-92-2,1688-92-2
• Citation: 439 S.E.2d 867,17 Va.App. 575
• Parties: George Wesley MORRIS, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 867

439 S.E.2d 867

17 Va.App. 575

George Wesley MORRIS, Jr. v. COMMONWEALTH of Virginia.

Record No. 1688-92-2.

Court of Appeals of Virginia.

Jan. 25, 1994.

Ned M. Mikula, Denis C. Englisby, Chesterfield (Rudy, Evans & Mikula, Englisby & Englisby, on briefs), for appellant.

Robert B. Condon, Asst. Atty. Gen. (Stephan D. Rosenthal, Atty. Gen., on brief), for appellee.

Present: BENTON, KOONTZ and WILLIS, JJ.

KOONTZ, Judge.

George Wesley Morris, Jr. (Morris) appeals his convictions for first degree murder and grand larceny arising out of the death of Jerry Wayne Houck (Houck) and the theft of Houck's automobile. Following a bench trial in the Chesterfield County Circuit Court, the trial judge found Morris guilty and sentenced him to concurrent prison sentences of seventy-five years, with thirty years suspended, for murder, and twenty years for grand larceny. In this appeal, Morris challenges the sufficiency of the evidence to support his conviction for first degree murder. Morris also challenges the use of his confession made during police interrogations, asserting that it was obtained through coercion. For the reasons that follow, we affirm Morris' convictions.

I. FACTUAL BACKGROUND

Casual acquaintances, Morris and Houck frequented the same arcades, pool halls and "hang-outs" in Chesterfield County. On the night of October 25, 1991, both men spent the evening away from home, Morris at a pool hall, Houck on a double date with his friend, Ernie Martin. Sometime after midnight, both men went to Dutch Gap boat landing to join an impromptu party. Both had something to drink at the landing. Around 3:00 a.m., the two left the party together. Morris drove Houck's 1983 Ford Escort to Houck's house.

The two men watched television in the living room. Later Houck went to his bedroom to lie down. Morris took a bowie knife belonging to Houck's father and used the knife to cut Houck's throat. Morris then drove the Escort to his house and hid the bowie knife in a dresser drawer in his bedroom.

Houck's father discovered his son's body later that morning when he returned home. Police issued a "be on the lookout" for the Escort. The following day, a patrol officer encountered Morris driving the vehicle and took him into custody for questioning.

The police advised Morris of his Miranda rights on several occasions, and Morris executed a written waiver when he agreed to talk to them. The transcript of the interrogation reveals that Morris changed his account of the death several times after initially admitting he had killed Houck. Morris initially claimed that Houck had requested Morris to kill him, then claimed that Houck had assaulted him, but later said, "I don't know why I did it. It just happened."

During the interrogation, the detectives several times stated that Morris should confess in order to seek God's forgiveness. Once, in response to Morris' request for help, one of the detectives told Morris to "pretend that I am your psychiatrist." The detectives warned Morris that the murder would disturb the community and that people would "want justice done." They told Morris that they knew the judges and would speak to them on Morris' behalf. They also told Morris that he might get the death penalty if he did not confess.

During the trial, Houck's father testified that he normally kept the bowie knife in his bedroom, concealed behind the headboard of his bed. Forensic evidence presented by the Commonwealth showed that at the time Houck received the fatal wound, he was in a prone position, possibly asleep or passed out.

II. SUFFICIENCY OF THE EVIDENCE TO PROVE FIRST DEGREE MURDER

It rests within the province of the trier of fact to determine whether a defendant acted willfully, deliberately and with premeditation in killing his victim. Beavers v. Commonwealth, 245 Va. 268, 281, 427 S.E.2d 411, 420, cert. denied, 510 U.S. 859, 114 S.Ct. 171, 126 L.Ed.2d 130 (1993). We review this finding by viewing the evidence in the light most favorable to the Commonwealth. Id. 245 Va. at 281-82, 427 S.E.2d at 421.

In Hodge v. Commonwealth, 217 Va. 338, 228 S.E.2d 692 (1976), our Supreme Court stated that evidence of a mortal wound inflicted by a deadly weapon with little or no provocation creates an inference from which the trier of fact may conclude that the killer acted with premeditation. Id. at 343, 228 S.E.2d at 696. When the Commonwealth has proved the commission of a homicide and has pointed out the accused as the criminal agent, the facts of the case may be such as to permit the trier of fact to draw an inference of malice. Id. Often it is stated that malice is presumed; however, this "presumption amounts to no more than an inference which the trier of fact is permitted, but is not required, to draw from proven facts." Id.

The trier of fact may infer malice from the deliberate use of a deadly weapon, unless it has a reasonable doubt whether malice existed. See Compton v. Commonwealth, 219 Va. 716, 730, 250 S.E.2d 749, 758 (1979). In this instance, the evidence presented by the Commonwealth proved that Morris used a deadly weapon upon a prone and possibly unconscious victim. The evidence also supports the conclusion that Morris obtained the knife from a concealed location in another part of the house. Taking the steps necessary to locate and obtain a weapon further bolsters the inference of malice.

The trial judge was privileged to accept the evidence presented by the Commonwealth and reject the conflicting evidence found in Morris' confession. " '[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed.' " Speight v. Commonwealth, 4 Va.App. 83, 88, 354 S.E.2d 95, 98 (1987) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945)).

III. COERCION OF CONFESSIONS DURING IN-CUSTODY INTERROGATIONS

The Commonwealth has the burden to prove that extra-judicial confessions are voluntarily made. 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 and the right to the assistance of legal counsel, a confession made by a suspect during in-custody interrogation is inadmissible in evidence against him. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Even when the suspect has waived Fifth and Sixth Amendment rights, a confession is inadmissible if it was made involuntarily. Miller v. Fenton, 474 U.S. 104, 108-09, 106 S.Ct. 445, 448-49, 88 L.Ed.2d 405 (1985). Whether a confession 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 surrounding a confession, 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, 264-65, 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 the confessions were 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). Morris concedes that, individually, the tactics used by the police in extracting his confession are permissible interrogation techniques. ¹ Morris argues, however, that the synergy of all of these tactics combined to create a coercive environment depriving him of his will to resist the officers' request for a confession. We disagree.

Without addressing the broader question of whether some combination of interrogation tactics might rise to the level of coercion, we find that the facts of the present case do not support Morris' contention that he was deprived of his will. Rather, it is clear that Morris almost immediately admitted to the killing. During three interrogation sessions over a period of approximately six hours, Morris changed his account of the death and contradicted himself on numerous occasions. The detectives utilized various interrogation tactics in an effort to establish the actual events surrounding the killing. The transcript of the interrogations shows a free flowing discourse between Morris and the detectives. There is no indication that Morris' will was overborne or that any statement he made was a product of police coercion or suggestive questioning. Accordingly, we cannot say that the trial court erred in failing to suppress Morris' confession.

For the foregoing reasons, the convictions appealed from are affirmed.

Affirmed.

BENTON, Judge, concurring and dissenting.

I join in Parts I and III of the majority opinion. I do not join in Part II, however, because the evidence in the record does not prove that George Wesley Morris premeditated the killing of Jerry Wayne Houck, an acquaintance whom he had known for several months. Premeditation is an element of the offense of first degree murder. Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989).

The distinction between murder in the first degree and murder in the second degree is well established in Virginia.

Every malicious killing is murder either in the first or second degree--the former if deliberate and premeditated, and the latter if not. Furthermore, there is a prima facie presumption of malice arising...