Taylor v. Commonwealth

• Decision Date: 13 September 2016
• Docket Number: Record No. 1031-14-4
• Court: Virginia Court of Appeals
• Parties: BRENT DAVID TAYLOR v. COMMONWEALTH OF VIRGINIA

BRENT DAVID TAYLOR v. COMMONWEALTH OF VIRGINIA

Record No. 1031-14-4

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 13, 2016

UNPUBLISHED

Present: Judges Beales, Russell and AtLee

Argued at Fredericksburg, Virginia

MEMORANDUM OPINION^* BY JUDGE RANDOLPH A. BEALES

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Lon E. Farris, Judge

Megan Thomas(King, Campbell, Poretz & Thomas, PLLC, on briefs), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General(Mark R. Herring, Attorney General, on brief), for appellee.

Following a jury trial, Brent David Taylor(appellant) was convicted of rape in violation of Code§ 18.2-61 and of aggravated sexual battery in violation of Code§ 18.2-67.3.Appellant argues on appeal that the trial court erred in refusing to suppress his non-Mirandized statements to police because they were not voluntary and were made during a custodial interrogation; erred in refusing expert testimony on the issue of voluntariness; erred in denying appellant a rape-shield hearing pursuant to Code§ 18.2-67.7; and erred in finding that the evidence presented at trial was sufficient for conviction.

I.BACKGROUND

We consider the evidence on appeal "in the light most favorable to the Commonwealth as we must since it was the prevailing party" in the trial court.Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504(2012)(quotingRiner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574(2004)).

On April 25, 2012, the then-eighteen-year-old appellant, Brent David Taylor, met the alleged victim, Jane Doe,¹ who was seventeen years old at the time.That evening, Jane allowed her friend Kristina, along with Kristina's friend David and David's friend (appellant), to come over to Jane's house.At some point, David drove Kristina back to her house, leaving Jane and appellant alone at Jane's home.The Commonwealth charged that, during this time, appellant raped and sexually assaulted Jane while she was unconscious.

Police Interview of Appellant

In the afternoon hours of April 26, 2012, Detective David Cho of the Prince William County Police Department called appellant and asked him to come to the police station to answer some questions.Appellant testified that he"agree[d] to go down to the station."When appellant told Cho that he could be at the station in thirty minutes "because [he] had someone coming to give [him] a ride," Cho told appellant that he would instead send someone to pick appellant up.Another detective (Detective Gary Van Dyke) drove to appellant's home where appellant was waiting "[i]n the front yard."Appellant"walk[ed] through his yard toward [Van Dyke's] car," and Van Dyke, who was dressed in a plainclothes "shirt and tie," did not arrest appellant or frisk him.An unidentified woman was also at the residence with appellant.She said to the officer, "He's only eighteen."Appellant got into the front seat of the detective's unmarked vehicle, and the two of them rode to the police station.According to Detective Van Dyke, appellant was "relaxed" and "joking."Appellant himself testified, "When I first got to the police station, before entering the station, I did feel like I was only going to be there for a few minutes just to answer a few questions."The woman who was at appellant's house followed them in a separate vehicle to the police station.

The detective drove to the public entrance of the police station and walked with appellant to the front entrance through "doors open to the public."The officer testified that the woman followed appellant and the officer into the police station, but that she sat down and "stayed in the main part of the waiting room in the front of the police station."The detective used a security badge to open a locked and alarmed door leading from the main waiting room into a secure corridor.The detective then escorted appellant through another door into a windowless interview room.The detective got appellant"a pen and paper . . . and allowed him to write" after appellant informed him that "he was having anxiety and that he felt better when he was able to write."At that point, Detective Michelle Nemerow, who had met appellant on a previous occasion, entered the interview room and had a "friendly back and forth" conversation with appellant while he was waiting.She was not exactly sure how long it took, but estimated no more than five to ten minutes.Nemerow also allowed appellant to "roll[] his chair between the doorway" while waiting for the interview to begin, which she testified was not typically allowed because of concerns for officer safety.However, she stated that the detectives "were trying to make any concessions possible because he said to [her] that [he had] anxiety in the closed spaces."

When Cho arrived to begin the interview, he closed the door "to make sure that this was private, that nobody else would hear [their] conversation."Nemerow was not present at this time.Appellant"was sitting close to the door and [Cho] was sitting across from him."Appellant provided Cho with his identification, and Cho returned it immediately after copying down the information.

Cho began speaking with appellant about the prior evening.Almost an hour into the recorded portion of the interview, when Cho told appellant that he did not think his story matched some of the other individuals' descriptions of the evening, appellant admitted that he and Jane had kissed and that he had touched her bare breasts, buttocks, and crotch area during their time alone at the house while David took Kristina home.Appellant told Cho that they were kissing each other.He still denied "hav[ing] sex" with Jane.Appellant told Cho that David picked him up around 2:00 a.m. and that David came upstairs and saw Jane passed out and helped put her into her bed.Appellant acknowledged that David saw Jane with her pants partially down at that point.

After this statement, Cho told appellant, "Okay.Okay.I'll be right back, I need to make this phone call, okay?"Then, Cho left the interview room for almost twenty minutes.Toward the end of the twenty-minute interval, Officer Scott Lawhead entered the interview room with a search warrant to take DNA evidence from appellant.Lawhead swabbed appellant's penis and the inside of appellant's mouth.Appellant removed his pants for the penis swab, he was cooperative with the swabbing, and he even asked Lawhead at one point, "No blood, no nothing?"Lawhead responded, "No, not at this point, I don't think."Appellant also stated to Lawhead, "I don't know why they didn't come and ask me (inaudible), why get a search warrant when they could have just asked?"Officer Lawhead left the room without answering.

When Cho returned to the interview room he immediately asked appellant, "Hey, Brent, uh, we think that you've been telling us that, uh, you didn't have sex right?Is that my understanding?That you guys did not have intercourse?"— As Cho continued to ask questions, appellant asked, "Can I go home now?"Cho replied, "Just, uh, got some more questions.Uh, do you know Detective Nemerow?"To which appellant responded, "No."Cho explained that Nemerow would be joining them because they"just want to talk to you [appellant] about a few other things, okay?"Appellant responded, "But why?You've got all the information, you got—" Cho interrupted and said, "I don't, I don't, that's why.There's other things that I need from you . . . I need to get some clarification."Appellant interrupted and said, "I can't be in here this [sic] longer, I can't be in here."Cho insisted, "I need to get some clarification, okay.Um, is there anything else that I need to know than what you told me?Anything else that, you know, you want me, you want me to know about what happened?"Appellant then said, "I wanna go home.I wanna go home, smoke my cigarette and just try to slow my heart rate because right now, I can't fucking keep my (inaudible)."Cho said, "All right, man, then I'm gonna just ask you a few more questions, okay?How's that?"Appellant responded, "Sure."²

When appellant continued to get upset over the search warrant, Cho repeatedly told appellant that the search warrant was "procedure" and "what we do" in every case.At no point during this interaction did appellant stand or make a motion to leave.Cho continued to question appellant, and appellant again denied having sexual intercourse with Jane.

About an hour and a half into the interview, Nemerow then re-entered the interview room.She spoke at length with appellant about her connection to him as the wife of his former teacher - and how she knew appellant's mother.She also asked appellant to "tell the truth."Eventually, appellant admitted, "I screwed up. . . .It's pretty bad."

Appellant said, "We were talking and messing around but then she passed out.And I still messed around with her.I felt her up while she was still asleep.I was really drunk.I did take off her pants."Appellant said that he was not sure whether he penetrated her vagina with his penis, but if he did, he did it twice ("I literally, probably only got it in if I did, twice.").At the conclusion of the interview, appellant wrote an apology note to Jane, which was admitted into evidence.

At the conclusion of the interview, around 5:30 p.m., Cho walked appellant back into the waiting room, and appellant"almost immediately" left the police precinct.At no time before, during, or immediately after the interview was appellant frisked, handcuffed, or told that he was being placed under arrest.However, an arrest warrant was issued for appellant at 9:08 p.m. that same evening, and officers arrested appellant at his home around 10:30 p.m.

Evidence at Trial

At trial, the Commonwealth put on evidence that Jane and her friend Kristina went to appellant's house to "hang out" with appellant and his friend David.The four ultimately decided to go to Jane's house, and they drove there in two separate cars.Jane's father and stepmother were...