Thomas v. Commonwealth

• Docket Number: 1429-22-4
• Decision Date: 12 March 2024
• Parties: ELWOOD LEWIS THOMAS v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

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ELWOOD LEWIS THOMAS v. COMMONWEALTH OF VIRGINIA

No. 1429-22-4

Court of Appeals of Virginia

March 12, 2024

September 17, 2024

Appeals of Virginia on Tuesday the 16th day of April, 2024.

From the Circuit CourtNos. FE-2020-515, FE-2021-37 and FE-2021-38of Fairfax CountyGrace Burke Carroll^[1] Judge

UPON A REHEARING EN BANC

Bryan Kennedy, Senior Assistant Public Defender(Jessica Newton Senior Trial Attorney, on briefs), for appellant.

Kimberly A. Hackbarth, Senior Assistant Attorney General(Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Causey, Friedman, Chaney, Raphael, Lorish, Callins and Frucci Argued at Richmond, Virginia

OPINION

STUART A. RAPHAEL, JUDGE

When he was in his mid-twenties, Elwood Lewis Thomas sexually molested multiple children while living with his grandmother in a house that she operated as a daycare.As to one girl whom Thomas abused from the time she was four until she was eight years old, a jury found Thomas guilty of two counts of aggravated sexual battery, two counts of rape, and two counts of animate-object penetration.(Circuit Court CaseNo FE-2021-37.)The evidence against him consisted principally of the testimony of the victim-who was age 17 when she testified-and Thomas's videotaped confession to police.Thomas then pleaded guilty to aggravated sexual battery of two other young children.(Case Nos. FE-2020-515, FE-2021-38.)At a joint sentencing hearing, the trial court imposed a life sentence on each of the two rape and two animate-object-penetration convictions, and five- or ten-year sentences on the other four convictions.

A divided panel of this Court affirmed in part, reversed in part, and remanded.Thomas v. Commonwealth, No. 1429-22-4, 2024 Va.App. LEXIS 133(Mar. 12, 2024).In Part II of the opinion, all members agreed that the trial court did not abuse its discretion in permitting the Commonwealth's expert to testify about delayed disclosure of sexual abuse by childhood victims.Id., slip op. at 27-31, 2024 Va.App. LEXIS 133, at *37-44.In Part III, all members also agreed that the trial court did not abuse its discretion in sentencing Thomas on the non-jury convictions (Case Nos. FE-2020-515, FE-2021-38).Id. at 32-33, 2024 Va.App. LEXIS 133, at *44-47.^[2]

In Part I of its opinion, the majority ruled that Thomas's confession should have been suppressed on the ground that his Miranda waiver was ineffective and involuntary.Id. at 16-27, 2024 Va.App. LEXIS 133, at *21-36.Although police officers administered Miranda warnings at the beginning of the custodial interrogation, Thomas's probation officer introduced the officers to Thomas at the start by saying, "I'm going to be here for a little bit, but just go ahead and chat with them today, okay?"Id. at 4, 2024 Va.App. LEXIS 133, at *5.The majority concluded this was not a "classic penalty situation" that would make Thomas's privilege against self-incrimination self-executing.Id. at 15, 2024 Va.App. LEXIS 133, at *20.Still, the majority found that Thomas's Miranda waiver was ineffective without additional warnings that his probation would not be revoked if he exercised his constitutional right to remain silent.Id. at 16-21, 2024 Va.App. LEXIS 133, at *21-27.The majority reversed Thomas's jury convictions and remanded that case for a new trial (Case No. FE-2021-37).Id. at 35, 2024 Va.App. LEXIS 133, at *47.The dissent would have affirmed the trial court's finding that "Thomas's will was not overborne and that the waiver of his Fifth Amendment rights and his confession were voluntary."Id. at 49, 2024 Va.App. LEXIS 133, at *68 (Raphael, J., dissenting in part).The dissent would also have affirmed the trial court's decision to exclude testimony by Thomas's mother during the guilt phase about his diminished intellectual capacity, which the defense said was relevant to show that Thomas had falsely confessed.Id. at 53-57, 2024 Va.App. LEXIS 133, at *76-82.^[3]

We granted the Commonwealth's petition for rehearing en banc and stayed the mandate as to all issues decided by the panel pending the decision of this Court sitting en banc.SeeRule 5A:35(b).As it was not part of our en banc review, Part II of the panel opinion affirming the trial court's ruling allowing the Commonwealth's expert to testify "remains undisturbed,"Rule 5A:35(b)(1), and we thus reinstate it.SeeCamann v. Commonwealth, 79 Va.App. 427, 431(2024)(en banc).We now reject Thomas's remaining challenges, affirm the judgment in full, and uphold Thomas's convictions.

Background^[4]

We recite the facts on appeal in the light most favorable to the Commonwealth.Camann, 79 Va.App. at 431.In doing so, "we'discard'the defendant's evidence when it conflicts with the Commonwealth's evidence, 'regard as true all the credible evidence favorable to the Commonwealth,' and read 'all fair inferences' in the Commonwealth's favor."Id.(quotingHammer v. Commonwealth, 74 Va.App. 225, 231(2022)).

A.The crimes against A.R.

In 2008, when Thomas was 24 years old, he was living in his grandmother's house that she operated as a private daycare in Fairfax County.A.R., the victim in Case No. FE-2021-37, was born in May 2004.She was a 17-year-old high-school senior by the time of trial in 2022.She testified that Thomas "raped [her] multiple times" at the daycare between January 1, 2008 and December 31, 2012.The "most memorable time" was in Thomas's bedroom, "downstairs in the basement."Thomas took off his pants, took off her pants, and "put his penis in [her] vagina."A.R. testified that Thomas raped her in the "bathroom" and "sometimes [in] the nursery."

A.R. also recalled that Thomas put his fingers in her vagina more than once during that five-year period.She recalled one instance in 2011 when Thomas stuck his finger in her vagina and "mov[ed] it around" as she sat on his lap at the computer.Thomas told her, "Don't tell anybody"; A.R. "just went upstairs and continued with [her] day."Another such incident occurred when she was sitting with Thomas as they watched her sister play a videogame on an "Xbox."

Thomas repeatedly told A.R. not to tell anyone about the rapes and the sexual touching.She kept it a secret for another seven years.

B. Thomas's conviction, sentence, and probation for an unrelated sex offense

Thomas was arrested in 2012 and convicted in 2013 on his guilty plea to aggravated sexual battery of a different child under 13 years of age.^[5]The trial court sentenced him to 8 years in prison with 7 years suspended and 20 years' supervised probation.During the investigation of that offense, Thomas had "at least a dozen" contacts with police.One time, he made a voluntary statement to police after he received Miranda warnings.

Thomas told officers at the time about a different "[k]id I [t]ouched," a girl with the same first name and relationship to him as A.R. A.R. was then eight years old.When her mother asked if Thomas had touched her, A.R. said "no."Investigators spoke with A.R. at the time.A.R. did not reveal the abuse but said it was "not okay to touch her private parts or butt."

Fairfax County Probation OfficerJoseph Samluk prepared the presentence-investigation report for Thomas's 2013 conviction, and Samluk later became Thomas's probation officer upon Thomas's release from custody in 2014.Thomas's supervised probation included sex-offender treatment, which Thomas completed.Samluk testified that he had "a very good rapport" with Thomas and that Thomas was "honest with [him] about everything."

C. Thomasconfesses to multiple crimes against other children

In July 2019, at age 15, A.R. finally told her mother about the sexual abuse at the daycare.Her mother testified that A.R. was "very frightened" when revealing that Thomas had "put his privates inside her private[s]."

After A.R.'s mother called the police, Fairfax County Police DetectivesSteven Carter and Thomas J. Gadell, Jr. were assigned to investigate.On July 26, 2019, Detective Carter observed a video in which Anissa Tanksley, a forensic interviewer, questioned A.R. about the abuse.

Obtaining a warrant for Thomas's arrest, the detectives arranged with Probation Officer Samluk to arrest Thomas when he reported to Samluk's office for a probation meeting.The detectives said they chose that location because Thomas lived nearby, they did not know how he would react, and they wanted a location that could be controlled and secured for safety.Samluk testified that "it's a normal procedure for the probation office to coordinate arrests with the Fairfax County Police Department."He said that "it happens all the time."

After his arrest, Thomas was transported by patrol car to police headquarters.Samluk drove there separately, having been asked by Detective Carter to come.Thomas was placed in an interrogation room and handcuffed to the table.A videorecording introduced at the suppression hearing captured what happened.Thomas was there for about five hours; the interview by the detectives lasted about three hours.

As Thomas had not yet eaten, the detectives got him two McDonald's breakfast sandwiches.One of the detectives uncuffed Thomas's dominant hand so he could eat breakfast and drink from a water bottle.As the detectives did not know Thomas, they asked Samluk to introduce them.Neither detective told Samluk how to introduce them or what to say.Detective Carter testified, "We wanted to treat Mr. Thomas respectfully and professionally, and we thought it would be important to have Mr. Samluk just introduce us as fellow professionals, as just who we were, and then leave."

Samluk told Thomas:

This is Detective Carter, Detective

...