Sabo v. Com.

• Decision Date: 09 April 2002
• Docket Number: Record No. 0538-00-4.
• Citation: 38 Va. App. 63,561 S.E.2d 761
• Parties: Kevin Mark SABO v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

561 S.E.2d 761

38 Va. App. 63

Kevin Mark SABO v. COMMONWEALTH of Virginia.

Record No. 0538-00-4.

Court of Appeals of Virginia, Alexandria.

April 9, 2002.

William R. Martin, Patrick O, Cavanaugh (Christopher B. Stone; Shawn M. Wright; Dyer Ellis & Joseph, on brief), Washington, DC, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present Judges BENTON, ANNUNZIATA and Senior Judge HODGES.

HODGES, Senior Judge.

The appellant, Kevin Sabo, appeals his conviction for attempted malicious wounding, in violation of Code §§ 18.2-26 and 18.2-51. Sabo contends the trial court erred in: (1) refusing to suppress tape-recorded statements he made to Heather Lawrence; (2) admitting those audiotaped statements at trial; and (3) refusing to allow Dr. Julian Brantley to testify. For the following reasons, we affirm.

BACKGROUND

Appellant and Heather Lawrence began a romantic relationship in the summer of 1998. The relationship became increasingly strained and in early March 1999, Lawrence ended it. Following the break-up, Lawrence began receiving anonymous phone calls. On March 16, 1999, Lawrence agreed to have lunch with appellant at a local restaurant. The two had earlier discussed the "strange phone calls," and appellant showed concern, making Lawrence receptive toward maintaining a friendship with appellant. After lunch, Lawrence and appellant parted and returned to their respective offices. They did not see each other the remainder of that day or night.

Lawrence went out after work on March 16 unaccompanied by appellant and returned home during the early morning hours of March 17. She parked on a side lot near her townhouse. Around 9:00 a.m. on March 17, 1999, Lawrence left her townhouse, entered her car and proceeded to drive to work. She approached a stop sign at an intersection and tried to stop her car; however, her brakes did not work. Lawrence "turned the car hard left, . hit a fence, a low brick wall and a tree." Lawrence recalled seeing fluid on the ground just before she entered her car.

Prior to trial, appellant moved to suppress the introduction of incriminating statements he made to Lawrence in a telephone conversation that Lawrence recorded and provided to police.

1. MOTION TO SUPPRESS STATEMENTS

Facts

On appeal from a trial court's denial of a motion to suppress, we must review the evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from it. Commonwealth v. Grimstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). The findings of the trial court will not be disturbed unless plainly wrong or without evidence to support them. See Mier v. Commonwealth, 12 Va.App. 827, 828, 407 S.E.2d 342, 343 (1991)

.

When reviewing the trial court's denial of a defendant's motion to suppress evidence, "the burden is upon [the defendant] to show that the ruling, when the evidence is considered most favorably to the Commonwealth, constituted reversible error." McGee v. Commonwealth, 25 Va.App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citations omitted).

Detective Coale investigated the March 17 incident involving Lawrence's car. He first met with Lawrence on March 19, 1999. In addition to her brake lines being cut, Lawrence advised him she had received "a number of [anonymous] phone calls to her residence in the middle of the night and at different times where people hung up and had not left a message." Coale learned from Lawrence that her relationship with appellant "had gone sour over the last several months" and that "[t]here had been an incident involving a slashing of one of her tires that coincided with a spat that her [sic] and Mr. Sabo had had." As a result, Coale "provided her with a tape recorder to tape anything that might — any phone calls that she might receive." He gave Lawrence the recording device about a week after first meeting with her, Coale testified that he "told [Lawrence] not to contact the defendant. That if he called and she wanted to make the tapes, that would be useful to our investigation."

Lawrence testified she was extremely fearful after the March 17 car accident. She had no idea who placed the anonymous calls and sabotaged her brakes. She worried constantly about future acts against her, and she was afraid of being alone in her residence. As a result, she installed a security system, kept mace and a whistle on her person at all times, kept a baseball bat in her house and avoided being alone. Coale installed the tape recorder around March 24, 1999, and provided her with approximately six blank audiotapes, which she used to record several conversations with appellant. Lawrence testified that after Coale installed the recorder, he suggested that Lawrence call appellant to tape his reaction to her accident because Lawrence had not spoken with appellant after the accident.¹ Lawrence shared the earliest recorded conversations with Coale, but he advised her not to contact appellant anymore because "[t]he conversations weren't really going anywhere." Despite that admonition, Lawrence contacted appellant periodically and taped more conversations. The evidence further showed that appellant continued to telephone Lawrence and speak with her, and Lawrence also taped portions of those conversations.

Appellant telephoned Lawrence around 9:00 p.m. on April 20, 1999. That conversation ended around 1:00 a.m. on April 21, 1999, and was the conversation in which appellant first made incriminating statements, the substance of which he sought to suppress. Lawrence taped excerpts of that lengthy conversation. Lawrence explained that she only had two audiotapes left to use, so she paused the machine and did not record portions dealing with innocent or personal information unrelated to Lawrence's fears for her safety. Lawrence also admitted recording over previously recorded portions when she needed additional tape. During the April 20-21 conversation, appellant admitted making anonymous phone calls to Lawrence and doing something to her car.

On the morning of April 21, 1999, Lawrence telephoned appellant at his office, hoping he would elaborate on his earlier admissions. Lawrence also taped that conversation. Appellant provided details about the incident involving her car. He explained that he went to a bar, became intoxicated, grabbed tools from his house, drove to her residence and did something to her car. Lawrence delivered the incriminating tapes to Coale at police headquarters on two successive days. Coale listened to one tape on April 21 and the other tape on April 22, 1999. He testified that "[a]fter she made this first tape, we told her just to leave it alone and go back home, and we will see how the case develops." He also told her "that she didn't have to make any more tapes unless [appellant] called her . . . [yet] she went ahead and apparently made [the second tape] anyway, and she brought it in" on April 22, 1999. After hearing appellant's audiotaped admissions that he did something to her car, Coale obtained a search warrant.

The trial court admitted into evidence the audio cassette tapes of the two telephone conversations. In doing so, it focused its analysis on whether Lawrence "when she was speaking to the defendant and the defendant ultimately made admissions to her, whether or not she was an agent of the state... in connection with this action." Although the police provided and installed the equipment a month before the incriminating tapes were recorded, the police instructed Lawrence "not to call the defendant." After Lawrence provided the April 20 tape, Coale again instructed Lawrence not to call appellant. By ignoring those admonitions, the trial court found that Lawrence "acted on her own" in contacting appellant at various times. According to the trial court, Lawrence "did not follow the instructions of the Arlington police" when she initiated calls. After listening to the testimony and evidence, including the taped conversations, the trial court determined that Lawrence had a "separate and independent reason to find" out who was doing these things to her "wholly apart from whether or not there was to be any prosecution." She wanted to allay her fears and discover who was victimizing her. To that end, she wanted to either identify or eliminate appellant as a suspect.

Applying by analogy case law involving Fourth Amendment searches by private individuals, the trial court ruled that Lawrence's purpose was not to assist law enforcement to prosecute appellant but to further Lawrence's "own ends and goals," namely, a desire to identify and stop the person who was placing her in constant fear. The trial court further found that the Commonwealth had minimal and infrequent involvement in obtaining the taped statements.

Furthermore, the trial court ruled that, even if Lawrence were an agent, appellant's incriminating statements were voluntary and "were not the result of any coercion."

Analysis

Appellant puts forth two arguments regarding his incriminating statements. He contends (1) that Lawrence "was acting as an agent for the Commonwealth," and (2) his statements to her were involuntary "because they were the result of coercion, [and] threats and, thus, were observed in violation of his fifth and fourteenth amendment rights."²

Government Agent

We have not previously addressed the proper method for determining whether an individual is acting as an agent of the state in the context of the Fifth Amendment. However, we agree with the trial court's application of concepts and procedures employed in prior case law involving searches and seizures by persons alleged to be government agents. Therefore, we hold that the analyses employed to determine whether an individual acted as a state agent for Fourth Amendment purposes applies equally to situations involving alleged Fifth Amendment violations.

Accordingly, appellant bore the...