Shell v. Com.

• Decision Date: 30 October 1990
• Docket Number: No. 1386-89-1,1386-89-1
• Citation: 11 Va.App. 247,397 S.E.2d 673
• Court: Virginia Court of Appeals
• Parties: Reginald SHELL v. COMMONWEALTH of Virginia. Record

Page 673

397 S.E.2d 673

11 Va.App. 247

Reginald SHELL v. COMMONWEALTH of Virginia.

Record No. 1386-89-1.

Court of Appeals of Virginia.

Oct. 30, 1990.

Lawrence A. Martin, Williamsburg, for appellant.

Thomas C. Daniel, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and COLEMAN and KEENAN, JJ.

KOONTZ, Chief Judge.

In a bench trial on June 30, 1989, Reginald Shell was convicted of first-degree murder and sentenced to sixty years imprisonment under Code §§ 18.2-32 and 18.2-10(b). In this appeal, Shell raises the following issues: (1) whether the trial court improperly found Shell made a knowing and voluntary waiver of his constitutional rights and thus erroneously admitted his confession into evidence; (2) whether the evidence was sufficient for the trial court to have found the element of premeditation necessary for a first-degree murder conviction. For the reasons that follow we affirm Shell's conviction.

On February 11, 1989, police found the body of Samuel Rylander in a house at 105 Victor Street in Hampton. Rylander's feet were tied with electrical cord and a clothes hanger was wrapped around his neck. There were numerous stab wounds and lacerations about his head and body along with two knives implanted in his neck and one in his back. On February 16, 1989, Reginald Shell, the victim's son, turned himself in to Newport News police for an unrelated offense. Between about 8:30 and 10:30 in the morning, Newport News detectives interrogated Shell about the unrelated offense. At least twice prior to questioning, the Newport News detectives gave Shell Miranda rights warnings, for which they later obtained a statement signed by Shell acknowledging being informed of those rights. During that initial interrogation, the detectives and Shell took several breaks of no more than five minutes.

Meanwhile, Hampton detectives arrived at the police station to question Shell about the murder of his father. Outside of Shell's presence, the Newport News detectives told the Hampton detectives that Shell had been advised twice of his Miranda rights and that the warnings were on tape. About ten minutes after the Newport News detectives finished questioning Shell, the Hampton detectives began a fifteen minute interview with him. Shell cooperated and expressed no unwillingness to talk. He told the detectives that he killed his father because his father called Shell's mother a "whore" and told him he was illegitimate. Shell stated, "I went off. I began kicking and kicking, and I hit him with a pipe. I was stomping him.... I had my boots on. I hit him in the head with a green lamp or something and a speaker. I also hit him in the head with a pipe like a table leg." During that time, according to Shell, Rylander attempted to get up but Shell stabbed him with one knife and then got another knife before tying up his father with wire and electric cord. At the conclusion of his confession to the Hampton detectives, Shell signed a written statement declaring his confession was made of his own free will after being advised of his constitutional rights. Shell's bloody fingerprint was found at the crime scene. In addition, Larry Ward, a convicted felon and cellmate of Shell, testified that Shell told him that he killed his father during an argument as described to the detectives.

I.

The first issue Shell raises on appeal is whether the trial court erred in refusing to suppress his confession to the Hampton detectives since they did not re-advise him of his Miranda rights before interrogating him. Without citing any authority to support his position, Shell argues that he could not have made a knowing and intelligent waiver of his constitutional rights concerning the Hampton murder charge because the Hampton detectives did not re-advise him of his Miranda rights but rather relied upon the prior warnings given to him by the Newport News detectives. Implicit in this position is that Miranda warnings are charge specific. We disagree.

We begin our review of Shell's assertions under familiar principles. In order for a confession to be admissible, the Commonwealth bears the burden of proving the defendant voluntarily made a knowing and intelligent waiver of his constitutional privilege against self-incrimination and his right to counsel. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Smith v. Commonwealth, 7 Va.App. 310, 314, 373 S.E.2d 340, 342 (1988); Goodwin v. Commonwealth, 3 Va.App. 249, 252, 349 S.E.2d 161, 163 (1986). Therefore, the Commonwealth first must show that the police complied with the necessary procedural safeguards by advising the defendant of his Miranda rights. See Blain v. Commonwealth, 7 Va.App. 10, 13, 371 S.E.2d 838, 840 (1988). "Failure to give Miranda warnings prior to custodial interrogation requires suppression of any illegally obtained statements." Id.

The Miranda warnings protect a suspect's constitutional privilege by "ensuring that a suspect knows that he may choose not to talk to law enforcement officials, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him." Colorado v. Spring, 479 U.S. 564, 574, 107 S.Ct. 851, 857, 93 L.Ed.2d 954 (1987). Furthermore, "[t]he purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing ... and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary." May v Commonwealth, 3 Va.App. 348, 354-55, 349 S.E.2d 428, 431 (1986).

While the trial judge has the duty to determine from the evidence that a confession was freely and voluntarily given before admitting it into evidence, Jefferson v. Commonwealth, 6 Va.App. 421, 424-25, 369 S.E.2d 212, 214 (1988), on appeal the issue of voluntariness is a question of law subject to the court's independent review of the entire record. Miller v. Fenton, 474 U.S. 104, 110-11, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985); Kauffmann v. Commonwealth, 8 Va.App. 400, 405, 382 S.E.2d 279, 281 (1989). However, the trial court's subsidiary factual findings, upon which voluntariness is determined, are entitled to the same weight as facts found by a jury and will not be disturbed on appeal unless plainly wrong. Williams v. Commonwealth, 234 Va. 168, 172, 360 S.E.2d 361, 364 (1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988); Smith v. Commonwealth, 7 Va.App. 310, 314, 373 S.E.2d 340, 342-43 (1988).

In Frye v. Commonwealth, the defendant was arrested in West Virginia for the murder of a Virginia State Policeman and taken to a West Virginia fire station for questioning. He was read his Miranda rights before he waived them and denied committing the murder. The interrogation stopped for a short while and then resumed, at which time the defendant confessed to the murder. On appeal, the defendant argued that his confession should have been excluded from trial since the police failed to rewarn him of his Miranda rights before resuming the interrogation. The Supreme Court of Virginia held that "[w]here a defendant has received Miranda warnings and has given a knowing and intelligent waiver of his constitutional rights, the waiver is presumed to continue through subsequent interrogations until he manifests a desire to revoke it." 231 Va. 370, 378, 345 S.E.2d 267, 274 (1986) (citing Washington v. Commonwealth, 228 Va. 535, 548, 323 S.E.2d 577, 586 (1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985)).

In Washington, the defendant was arrested in Fauquier County on charges unrelated to an unsolved murder that occurred nearly a year earlier in the Town of Culpeper. After reading the defendant the Miranda warnings, Fauquier investigators questioned him about the crime for which he was arrested and then asked him about the Culpeper murder to which he made a vague confession. The next day, Culpeper and State investigators read him Miranda rights and extracted a more complete confession and a signed statement from the defendant. Later, after stopping for lunch but without being rewarned of his Miranda rights, the defendant took the police to retrace his actions concerning the murder. On appeal, the defendant unsuccessfully sought to have evidence derived from the retracing of his actions declared inadmissible since he was not re-read his Miranda rights. The Court held that there was no need for the police to have rewarned the defendant since he already made a valid waiver of his rights and had not reasonably manifested a desire to revoke his waiver. 228 Va. at 548-49, 323 S.E.2d at 586.

Virginia is not alone in holding repeated Miranda warnings are not mandatory once an accused has waived his rights. See Biddy v. Diamond, 516 F.2d 118 (5th Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724, 48 L.Ed.2d 194 (1976); see also United States v. Anthony, 474 F.2d 770 (5th Cir.1973) ("there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them"); United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir.1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 776 (1978) (fresh warnings not required after passage of a few hours).

In the present appeal both parties cite Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987) where agents of the Bureau of Alcohol, Tobacco, and Firearms (ATF) arrested a defendant in Kansas City, Missouri for firearms violations. After advising him of his Miranda rights, the agents transferred the defendant to the ATF office, where the defendant was again advised of his...