Thomas v. Commonwealth

Decision Date01 December 2020
Docket NumberRecord No. 0176-20-2
Citation850 S.E.2d 400,72 Va.App. 560
CourtVirginia Court of Appeals
Parties Nicholas Lee THOMAS v. COMMONWEALTH of Virginia

Daniel W. Hall (Law Office of Daniel W. Hall, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata


On May 23, 2018, a grand jury for the Circuit Court of the City of Richmond ("circuit court") indicted appellant Nicholas Lee Thomas ("Thomas") on one count each of: first-degree murder, in violation of Code § 18.2-32 ; use of a firearm in the commission of first-degree murder, in violation of Code § 18.2-53.1 ; robbery, in violation of Code § 18.2-58 ; and use of a firearm in a robbery, in violation of Code § 18.2-53.1.

Thomas filed a motion to suppress statements he made to police while in custody. After an evidentiary hearing on the motion to suppress, the circuit court found the statements admissible and denied Thomas's motion. Thomas then entered a conditional nolo contendere plea to first-degree murder, pursuant to Code § 19.2-254, and the Commonwealth agreed to move for a nolle prosequi on each of the three remaining charges. The plea agreement preserved Thomas's right to appeal the ruling on the motion to suppress. Subsequently, the circuit court sentenced Thomas to fifty years’ incarceration and three years of post-release supervision.

On appeal, Thomas argues that the circuit court erred in denying his motion to suppress because police interrogated him in violation of his Fifth Amendment rights after he unequivocally invoked his right to remain silent.


On May 11, 2018, Russell Long ("Long") was fatally shot seven times during a robbery. Detective Mark Godwin ("Detective Godwin"), of the Richmond Police Department, identified Thomas as a suspect in the murder investigation. On May 15, 2018, police detained Thomas during the execution of a search warrant at his home and subsequently took him to the Richmond Police Department Headquarters to be interviewed. Thomas's interview with police was recorded, and the video of Thomas's interactions with the detectives is part of the record before us. During the interview, Thomas told Detective Godwin that it was not the first time his rights had been read to him. Detective Godwin advised Thomas of his right to remain silent and his right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966),1 and Thomas subsequently signed a written waiver of his so-called " Miranda rights." Detective Godwin interviewed Thomas for less than an hour. The detective felt the interview was not productive and ended it, asking Thomas if he would be willing to give them a DNA sample instead of continuing the conversation, to which Thomas consented.

Detectives Russell ("Detective Russell") and Bridges ("Detective Bridges") entered the interview room a short time later. They questioned Thomas while taking a DNA swab and continued questioning him after it was complete. After several moments, Thomas stated, "Imma stop talking." Detective Russell immediately stood up and asked him, "Listen to me. Did we treat you right?" Thomas nodded affirmatively. Detective Russell continued, "Nobody mistreated you, right? We gave you every opportunity to talk to us, is that fair?" Thomas nodded yes again. Detective Russell asked, "Okay, so you can't say we didn't try, right?" The detective paused until Thomas answered, "Yes." Detective Russell then stated, "Okay, I'm asking, I want to be fair, if there's something you need me to correct, let's do it." Thomas was silent and nonresponsive. Detective Russell then asked, "Okay, we're basically friends here, right? It's just a job, right? Can you shake my hand?" and put his outstretched hand in front of Thomas, who did not respond. Detective Russell asked, "You can't do that for me?" When Thomas did not respond, Detective Russell patted him on the arm. Detective Bridges then asked for Thomas's mother's phone number so he could call her. Thomas provided his mother's name and number.

Immediately afterward, as Detective Russell was on his way out of the room, he turned and asked Thomas if he knew what charges were pending against him. Thomas did not respond. The detective turned toward Thomas and said, "What do you think it is?" Thomas was silent. Detective Bridges suggested, "Robbery?" Thomas flicked his hand and said "Robbery." Detective Russell said, "Robbery, use of a firearm, first-degree murder, and use of a firearm." Detective Russell then asked if Thomas was aware of the penalties for those crimes. Thomas said nothing and rubbed his face. Detective Russell said, "I'll be more than glad to explain it if you'd like me to." Thomas nodded yes. Detective Russell stated the penalties: "First-degree murder carries a life sentence. Life. Robbery is five to forty.2 Of course, they're gonna ask for a jury, because of this guy's, you know, how he was. And the jury sentences you, you're twenty, the other young man is seventeen, he's going to catch a break." Thomas immediately asked Detective Russell why the other suspect would "catch a break" and if it was because he was a juvenile. Detective Russell replied, "Well, he talked." Detective Bridges said, "He got the story. You don't think he should get as much of a break?" Shortly afterward, Thomas admitted his involvement in Long's killing.

On May 22, 2019, Thomas filed a motion to suppress the statements he made to police asserting that the detectives violated his right to remain silent by continuing to question him after he invoked his right to silence. The circuit court denied the motion to suppress. Specifically, the circuit court held that Thomas's statement was not a clear and unequivocal invocation of his right to remain silent and that his statements to police were entirely voluntary. This appeal follows.

A. Invocation of the Right to Remain Silent

"We review the circuit court's factual findings in denying a motion to suppress for clear error but review its application of the law de novo. " Commonwealth v. Quarles, 283 Va. 214, 220, 720 S.E.2d 84 (2012) (citing Brooks v. Commonwealth, 282 Va. 90, 94-95, 712 S.E.2d 464 (2011) ). The contents of a defendant's statements are a question of fact that we review only for clear error. Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695 (2002). Whether a statement sufficiently invokes or waives the right to silence is a legal question we review de novo. Id. (citing United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993) ). "In reviewing the [circuit] court's denial of the motion to suppress, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences deducible therefrom." Giles v. Commonwealth, 28 Va. App. 527, 532, 507 S.E.2d 102 (1998).

The Fifth Amendment of the United States Constitution guarantees that, "[N]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Upon taking a suspect into custody, police are required to warn him of his right to an attorney and the right to remain silent during questioning by police. Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. If the defendant indicates that he wishes to remain silent at any point prior to or during questioning, "the interrogation must cease." Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981). Here, Thomas argues that he affirmatively invoked his right to remain silent by saying, "Imma stop talking."

Both the right to remain silent and the right to counsel require the suspect to unambiguously invoke them. Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 2259, 176 L.Ed.2d 1098 (2010). In the context of the right to counsel, "[A]mbiguity arises from the circumstances leading up to the statement, along with the statement itself, rather than the words of the statement alone." Stevens v. Commonwealth, 57 Va. App. 566, 577, 704 S.E.2d 585 (2011). Similarly, in determining whether a suspect unambiguously invoked his right to silence, we consider the substance of the statement as well as the context in which it was made. See Midkiff v. Commonwealth, 250 Va. 262, 267, 462 S.E.2d 112 (1995).

This Court has previously held that a suspect's statement that he "didn't have anything more to say" and the questioning detective should "buckle up for the long ride," accompanied by the suspect's turning his chair away, putting his foot up on the wall, and closing his eyes was not a clear and unambiguous assertion of the right to remain silent. Green v. Commonwealth, 27 Va. App. 646, 654, 500 S.E.2d 835 (1998). The Supreme Court of Virginia has held that "Do I have to talk about it now?" was not a valid invocation of the right to silence, nor was "I just don't think that I should say anything." Burket v. Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124 (1994) ; Akers v. Commonwealth, 216 Va. 40, 45-46, 216 S.E.2d 28 (1975). Similarly, the statement "I ain't got shit to say to y'all" did not constitute a sufficiently unambiguous invocation of the right to counsel. Mitchell v. Commonwealth, 30 Va. App. 520, 526-27, 518 S.E.2d 330 (1999).

Here, when Thomas stated, "Imma stop talking," Detective Russell immediately stood up and moved away from the interview table. Because Thomas had his head in his hands and spoke the words very softly, the audio of his statement is such that it is difficult to clearly discern whether this statement was directed at the detectives or himself. Assuming without deciding that Thomas's statement amounted to a clear and unambiguous assertion of his right to remain silent, we must decide whether the detectives’ questioning violated Thomas's right to remain silent, and whether he waived that right.

B. The Roots of Miranda

The Fifth Amendment privilege...

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