Mundy v. Com., 0221-88-2

• Decision Date: 03 April 1990
• Docket Number: No. 0221-88-2,0221-88-2
• Citation: 390 S.E.2d 525,11 Va.App. 461
• Parties: Marvin Maurice MUNDY v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 525

390 S.E.2d 525

11 Va.App. 461

Marvin Maurice MUNDY v. COMMONWEALTH of Virginia.

Record No. 0221-88-2.

Court of Appeals of Virginia.

April 3, 1990.

Rehearing En Banc Granted May 1, 1990.

[11 Va.App. 465] Steven D. Benjamin, Richmond, for appellant.

Robert B. Condon, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present BENTON, COLE and DUFF, JJ.

COLE, Judge.

Marvin Maurice Mundy was convicted of capital murder, murder, robbery and three counts of use of a firearm in the commission of a felony. On appeal Mundy contends that (1) the trial court erred in refusing to suppress the second and third statements he made to the police, (2) the evidence was insufficient to convict him of capital murder, and (3) the trial court erred in refusing to grant his motion for a new trial based upon after-discovered evidence. Finding no merit in these arguments, we affirm.

Shortly after midnight on April 8, 1987, Mundy and three accomplices, Keith Cox, Michael Lyons and Norris Timmons arrived by car at the Residence Inn Hotel on Dickens Road in Henrico County for the purpose of robbing it. Timmons stayed with the vehicle while the others approached the hotel on foot. The defendant carried his own .45 caliber revolver, Cox had a .357 caliber revolver which belonged to his mother, and Lyons was armed with a .22 caliber revolver.

The three men entered the hotel. Jack Marshall, the night auditor, was the clerk on duty at the time. Mundy pulled out his handgun and told the clerk to lie down on the floor. Marshall complied with the order. Mundy directed Cox to keep Marshall covered and he did so by holding his gun to the back of Marshall's head. Mundy emptied the contents of the cash register but was unsuccessful in opening a small hotel safe. Ordering Cox and Lyons to watch Marshall, Mundy picked up the safe and left the hotel with it.

Meanwhile, outside the hotel, Ronald E. Rigney, a Henrico County police officer on routine patrol, observed a Honda automobile parked parallel to the Residence Inn Hotel and partly out in the roadway. Rigney pulled up behind the vehicle and observed that the trunk was open. The male in the driver's seat exited the vehicle and approached the officer, who asked for identification but was furnished none. The officer attempted to look into the car trunk, but Timmons slammed the trunk door shut. According to the testimony of Rigney, Timmons appeared nervous and continually looked over his shoulder in the direction of the hotel office. While speaking with Timmons, the officer observed three males exit the motel, running toward him. The lead male appeared to see the officer. He turned around and ran back toward the hotel office. Officer Rigney immediately called for assistance from other officers in the area.

Moments after leaving the hotel with the safe, Mundy returned without the safe and told Cox and Lyons that the police had Timmons. He then twice ordered Cox to shoot Marshall. When Cox hesitated, Mundy pointed his gun at Cox and said, "If you don't kill him I am going to kill you." Cox shot Marshall at point-blank range in the back of the head with his .357 caliber revolver, killing him instantly. Immediately after shooting Marshall, Cox ran out of the hotel and fled. Cox managed to hide his gun behind the front wheel of a car in the parking lot of a nearby hotel. Cox was apprehended by the police as he attempted to scale a fence along an adjoining interstate highway.

Mundy and Lyons followed Cox out of the hotel. As they were leaving, they encountered an arriving traveler, later identified as Ross Kennedy. They followed Kennedy back into the hotel with the intention of taking his car keys so they could make an escape in his car. While he was using a telephone, Kennedy was shot with a .45 caliber revolver and subsequently died. One of the disputed issues in the case is whether he was shot by Lyons or Mundy. Both fled the hotel. The police apprehended Mundy and Lyons hiding on the roof of a nearby bowling alley and arrested them.

In a jury trial, Mundy was convicted and sentenced in accordance with the jury's verdict to two terms of life imprisonment plus seventy years in the penitentiary for the capital murder of Ross Kennedy, the murder of Jack Marshall, robbery, and three counts of use of a firearm in the commission of a felony. This appeal followed.

I. Admissibility of Statements

Mundy made statements to the police on three separate occasions. He argues that the trial court erred when it admitted into evidence the second and third statements. An in-trial suppression hearing was conducted to determine the admissibility of the statements. For purposes of this motion, the parties made the following stipulations concerning the first statement: it was made at 6:02 a.m. on April 8, 1987; Detective East advised Mundy of his Miranda rights; Mundy answered questions for a short period of time and then requested counsel; a second request for counsel was made, but the questioning continued; East in no way threatened Mundy and did nothing to intimidate him; East did not promise Mundy anything for his statement or answers; East did make statements that the other co-defendants had been arrested and had made statements incriminating Mundy. Upon completion of the first statement, Mundy was taken to a different area, the third floor of the Public Safety Building. At the time he was taken to the third floor, there is no evidence that the police intended to resume interrogation.

The parties further stipulated as follows: about three hours later Mundy told Investigator G.E. Ross, who was on the third floor, that he wanted to talk to the detective that talked to him; East was brought to Mundy and Mundy stated that he wished to make a statement; East read the Miranda warnings to Mundy again and Mundy signed a waiver; Mundy made his second statement, the substance of which was reduced to writing by East; on April 9, 1987, Mundy, while present in the general district court, made it known to the Commonwealth's attorney that he wanted to talk to him; later in the day, the Commonwealth's attorney, together with Detective East, went to the visiting room of the county jail and Mundy was brought in; Mundy expressed his desire to talk further; the Commonwealth's attorney left and East again read Mundy his Miranda warnings; Mundy made his third statement, the substance of which was reduced to writing by East.

At the suppression hearing, the trial court made the three written statements a part of the record without objection. The court asked defense counsel whether Mundy claimed that he was threatened during the first interrogation. In response, defense counsel answered that the "interrogation was psychologically coercive." The trial court gave the defendant an opportunity to put on evidence "that he was coerced or that he was threatened or anything of that nature" in making the first statement to the police. Mundy declined the offer to put on additional evidence and defense counsel stated that the defendant would "rely simply upon the stipulation of facts in the transcript and narratives of the statements."

In argument on the motion to suppress, Mundy claimed that all three statements were inadmissible because they violated his fifth amendment and fourteenth amendment rights to remain silent. He argued that, although he was advised of his Miranda rights before making each of the three statements, he was coerced into making the first statement because he had to use the bathroom and he was denied this right, resulting in personal discomfort. He further argued that he was coerced into making the first statement because the interrogators advised him that he had a right to an attorney, but refused to provide one on two occasions when he requested it. Mundy argued that he "let the cat out of the bag" by making inculpatory statements (in his first statement he confessed to being present and being a part of the robbery, but denied that he shot anyone), and that, as a consequence, the subsequent statements were also coerced. He further argued that the invalid first confession impaired his ability to make a valid waiver of his Miranda rights.

The Commonwealth at all times conceded that the first statement was inadmissible and never attempted to introduce it. It argued, however, that the first statement, although obtained in violation of Mundy's Miranda rights, was not coerced, that the second and third statements were initiated at the request of the defendant, that Miranda warnings were given before all the statements were obtained, that Mundy executed valid waivers before giving the second and third statements, and therefore, the second and third statements were admissible.

An accused has a right under the fifth and fourteenth amendments to have counsel present during a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966). In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court determined when interrogation may be resumed after the accused invokes his right to counsel during a custodial interrogation:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

451 U.S. at 484-85, 101 S.Ct. at 1884-85 (footnote omitted); see also Correll v. Commonwealth, 232 Va. 454, 462, 352 S.E.2d 352, 356, cert. denied, 482 U.S. 931, 107 S.Ct. 3219, 96 L.Ed.2d 705 (1987).

The Edwards rule...