Secret v. Commonwealth, Record No. 170540

• Citation: 819 S.E.2d 234
• Decision Date: 11 October 2018
• Docket Number: Record No. 170540
• Court: Supreme Court of Virginia
• Parties: Nicholas Charles SECRET v. COMMONWEALTH of Virginia

819 S.E.2d 234

Nicholas Charles SECRET
v.
COMMONWEALTH of Virginia

Record No. 170540

Supreme Court of Virginia.

October 11, 2018

Norman A. Thomas, Richmond, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY ELIZABETH A. McCLANAHAN

819 S.E.2d 237

A jury convicted Nicholas Charles Secret of arson of an occupied dwelling and nine counts of attempted first-degree murder. On appeal, Secret contends the trial court erred in denying his motion to suppress his confession. The confession was given after he was informed of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and indicated that he waived them. He claims that his post-warning confession was the product of an intentional and coercive two-step interrogation technique like the one proscribed in Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), or was otherwise involuntary under Oregon v. Elstad , 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Secret also contends the trial court erred in denying his motions challenging the sufficiency of the Commonwealth’s evidence of his specific intent to commit murder. Finding no error, we affirm Secret’s convictions.

I. BACKGROUND

"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Hilton v. Commonwealth , 293 Va. 293, 296, 797 S.E.2d 781 (2017) (quoting Scott v. Commonwealth , 292 Va. 380, 381, 789 S.E.2d 608, (2016) ).

A. The Fire and Secret’s Connection to the Dwelling

The fire resulting in Secret’s arson and attempted first-degree murder convictions occurred in Louisa County at a dwelling known as "Heartwood" utilized by "an intentional community" of about 30 individuals identified as the "Acorn Community" ("Acorn").¹ Heartwood was the "principal residence" or "main dormitory" at Acorn, having bedrooms both upstairs and downstairs. It was also the location of Acorn’s main office, kitchen and dining area.

In early September 2013, Secret met Acorn member Paxus Calta at a community conference with a sister community and accepted Calta’s invitation to come to Acorn as a guest. Calta did not specify the duration of Secret’s invitation to stay at Acorn. While at Acorn, Secret camped in a tent on the Acorn property, but attended some of the weekly meetings at Heartwood and ate some of his meals there. After a week at Acorn, Secret asked if he could extend his stay as an intern. Calta testified that some of the Acorn members, "including myself, were not yet comfortable with the idea of [Secret] staying on," so they deferred their decision about Secret’s extension. According to Acorn member Daniel Cook, Secret "seemed kind of distracted and kind of rough. He didn’t really take instruction super well." At the end of September, Calta further explained, the Acorn members "looked at [their] numbers [and] realized [they] weren’t going to have bedrooms for [Secret] and some other people [for the approaching winter months] after Thanksgiving, so [Calta] told [Secret] that he was going to have to find someplace else to go just before Thanksgiving." Calta also advised Secret, however, that he was "making members feel uncomfortable [because] his behavior had been somewhat odd and that if his behavior [did not improve] he would have to leave immediately rather than just before Thanksgiving."

Secret continued on as a guest at Acorn for approximately two more weeks, which ended on the day of the fire at Heartwood. Around 5:00 a.m. that morning, Calta, while on a computer in an office on the first floor at Heartwood, smelled smoke and discovered that the kitchen was on fire. Calta and another Acorn member, who had also discovered the fire at about the same time, yelled to the others in the building that it was on fire, after which all of the occupants managed to evacuate without serious injury. At trial, the identities of at least nine individuals who were in Heartwood at the time of the fire were established.² Because of the smoke and

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flames that had spread to the stairway leading to the second floor, four of those individuals were trapped on the second floor and had to escape by climbing out of their bedroom windows onto a porch roof, and then jumping to the ground. Some of those who exited the building from the first floor detected a liquid that appeared to be gasoline or diesel fuel on the floor of the hallway near their bedrooms and the office where Calta had been working. Calta also saw fuel cans in the main living room next to the office and grabbed one of them, which was actually empty, and carried it outside. It was "absolutely" unusual to see fuel cans in the house, he explained, because they were normally stored about 200 meters away in a barn. After the fire was extinguished, everyone that was residing at Acorn was accounted for with the exception of Secret.

Special Agent Peter Lazear, an arson expert with the Virginia State Police ("VSP") who investigated the Heartwood fire, opined at trial that the fire did not start accidentally. Lazear began his investigation at Heartwood on the morning of the fire. In examining the debris from the fire, he discovered the remains of what appeared to be a five-gallon plastic gasoline container. He collected samples of the debris for forensic analysis and they tested positive for gasoline. In the dining room, Lazear found two containers full of diesel fuel and paint thinner, respectively, which would have accelerated the growth of the fire had it not first been extinguished. He also found a five-gallon gasoline container on the front porch. In addition, Lazear submitted for analysis traces of the liquid from the fuel container that Calta removed from the living room, which was identified as "fuel oil #2, slash, diesel fuel, a heavy petroleum distillate."

Lazear’s examination of the stairway revealed that "the fire was beginning to extend across the stairwell and up the stairwell." He there observed the "depositing of soot from very thick, heavy dark smoke that would have encompassed this stairwell and was starting to move into the center of the structure." It was Lazear’s expert opinion that a fire that produced such markings would have "engulf[ed]" the entire structure as it continued to burn had it not been extinguished.

B. Lazear’s Interview with Secret and Secret’s Confession

Also as part of his investigation on the day of the fire, Lazear interviewed various Acorn members and was informed of Secret’s status at Acorn, his odd behavior and his sudden absence. Based on those interviews, Lazear considered Secret a suspect in the investigation by the time Lazear left the Acorn property late that afternoon. After returning to the VSP facility in Richmond, Lazear received a call regarding Secret from VSP Special Agent Del Roberts, who had assisted Lazear with the investigation. Roberts informed Lazear that, according to the Louisa County Sheriff’s Department ("LCSD"), Secret had returned to Acorn. Roberts then asked Lazear if he wished to speak with Secret that evening, and, if so, would he like to speak to Secret at Acorn or the Louisa County Sheriff’s Office ("Sheriff’s Office"). Lazear stated that he did want to speak with Secret and would prefer to do so at the Sheriff’s Office "if Mr. Secret was willing to go there of his own accord."³ While driving back to Louisa County, Lazear received a follow-up call from Roberts informing Lazear that Roberts would be meeting Lazear with Secret at the Sheriff’s Office.

After arriving at the Sheriff’s Office, Lazear did not discuss Secret’s status with anyone as he proceeded to the interview room, where Secret was waiting alone, without restraints of any kind and seated at a table. Lazear subsequently engaged in conversation with Secret for approximately 30 minutes without specifically mentioning the fire. Lazear then asked Secret, "So what about Acorn made you start the fire in the kitchen

819 S.E.2d 239

this morning?" About 12 minutes later, Secret admitted to starting the fire, stating: "I dumped a whole bunch of fuel in there, then threw a thing full of lit matches into some of the fuel." At that point, Lazear read Secret his Miranda rights. Secret indicated that he was familiar with those rights and was waiving them, and would continue to speak with Lazear. Lazear continued the interview for about 30 more minutes during which Secret provided detailed inculpatory statements about his actions in setting fire to Heartwood. Secret was then arrested and subsequently indicted for arson and 18 counts of attempted first-degree murder.

C. Motion to Suppress Secret’s Confession

Secret filed a pre-trial motion to suppress both his pre- and post- Miranda warning inculpatory statements made to Lazear during the interview at the Sheriff’s Office. First, Secret claimed that his unwarned statements were inadmissible because he had in fact been in police custody before Lazear arrived for the interview.⁴ In making this argument, Secret relied on the testimony at the suppression hearing of Roberts and LCSD Deputy Chris Snyder, who were responsible for...