Timbers v. Com.

• Citation: 28 Va. App. 187, 503 S.E.2d 233
• Case Date: August 18, 1998
• Court: Court of Appeals of Virginia

503 S.E.2d 233
28 Va. App. 187

Kelly Yvette TIMBERS
v.
COMMONWEALTH of Virginia

Record No. 1702-97-2.

Court of Appeals of Virginia, Richmond.

August 18, 1998.

503 S.E.2d 234

Diana H. Wheeler, Orange, for appellant

Marla Graff Decker, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: WILLIS, ANNUNZIATA and OVERTON, JJ.

ANNUNZIATA, Judge.

Kelly Yvette Timbers (appellant) was convicted of two counts of forgery. In this appeal, she challenges the trial court's admission into evidence of statements she made to a deputy sheriff while she was incarcerated in a Madison County holding cell. She contends the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the statements were the unlawful fruit of an earlier detention in violation of the Fourth Amendment. She also contends the evidence was insufficient to support her convictions for forgery. We hold that law enforcement authorities violated appellant's Miranda rights to obtain her statement, and we reverse her convictions for forgery.

On November 15, 1996, law enforcement authorities executed a search warrant at an apartment complex in Madison County. In addition to searching appellant's apartment, law enforcement authorities searched the apartment of John Johnson. Johnson owned a blue Lincoln Town Car which he sometimes loaned out in trade for crack cocaine. During the execution of the search warrant, an officer saw the blue Lincoln enter the area of the apartment building.

The Lincoln then left the area of the apartment building and drove away. An officer of the Virginia State Police stopped the Lincoln because he was instructed to do so by an

503 S.E.2d 235

undisclosed person on his radio. During a search of the Lincoln, law enforcement officers found a small packet of cocaine in the car, and a Madison County deputy arrested appellant, who was the driver, and the other occupant of the car

At the sheriff's office, Deputy Robert MacFall asked appellant for identifying information, including her name, date of birth, and Social Security number. Appellant told MacFall that her name was Gwendolyn Ann Timbers. After appellant was fingerprinted, she signed the fingerprint card and a Central Criminal Records Exchange (CCRE) form with the name, "Gwendy Timbers." MacFall prepared and served appellant with a warrant for possession of cocaine.

Between a half-hour and an hour after appellant's booking, while appellant was in the holding cell at the sheriff's office, a woman came into the lobby of the sheriff's office and asked to give MacFall an item of clothing for Kelly Timbers. MacFall testified that, after this exchange, he immediately went "to the holding cell where we had Ms. Timbers and questioned her as to what her real identity was." When asked to specify his actions, MacFall testified as follows: "I went to the holding cell door, I called her by the name of Kelly Timbers and she looked at me. And I told her if she was Kelly Timbers, that she needed to come forth with that information." MacFall testified that he did not directly ask appellant if her name was Kelly.

Appellant acknowledged that she was actually Kelly Timbers. Appellant was not advised of her Miranda rights at any point prior to this acknowledgement. The deputy charged appellant with one count of forgery for the fingerprint card, one count of forgery for the CCRE card, and one count of giving false information to a police officer, in addition to possession of cocaine.

Appellant moved to suppress the cocaine on the basis that no reasonable suspicion supported the stop of the Lincoln, and moved to suppress the fingerprint cards and the statement she made in the holding cell that she was in fact Kelly Timbers on the basis that these statements were fruits of the unlawful stop. After a hearing, the trial court granted the motion to suppress the cocaine on the basis that no evidence established that the person who ordered the Lincoln stopped had reasonable suspicion to justify the stop. The court denied the motion to suppress the fingerprint cards and statement, reasoning that "there is a new act occurring here and this is not a fruit of the poisonous tree."

On the basis of evidence introduced in the first suppression hearing, appellant filed a motion to suppress her statements to the deputy on the basis that the statements were obtained in violation of her Miranda rights. At a hearing on appellant's second motion, appellant testified that MacFall approached the holding cell where she was incarcerated, asked if she was Kelly Timbers, and told her that he knew she was Kelly Timbers, so she might as well admit it. She testified that MacFall left for five to ten minutes, then returned and told her that someone had come to the office and said that appellant's name was Kelly. According to appellant, MacFall told her that someone was going to retrieve a picture of appellant, so appellant should admit that her name was Kelly. Appellant testified that MacFall left again, returned, and told her that they would not press charges if she admitted her name was Kelly. Appellant testified that she admitted her identity at this point.

The court denied appellant's motion to suppress her statements. The court found MacFall's testimony to be credible and found that the sequence of events was not as appellant described. The court specifically found as follows: "Certainly the defendant was in custody, but what occurred was not interrogation." After a trial without a jury, the court found appellant not guilty of providing false information to a police officer, but found her guilty of both counts of forgery.

I.

Miranda

Appellant contends her statement in the holding cell that she was in fact Kelly Timbers was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are bound by the trial court's findings of historical fact

503 S.E.2d 236

unless those findings are plainly wrong or without evidence to support them. See, e.g., McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). We review de novo questions of law and the trial court's application of defined legal standards to the particular facts of a case. See, e.g., Quinn v. Commonwealth, 25 Va.App. 702, 712-13, 492 S.E.2d 470, 475-76 (1997) (citing cases) (holding that whether a person has invoked her Miranda right to counsel and whether she has waived that right are reviewed de novo); McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (1997) (citing cases) (holding that issue of whether seizure occurred is reviewed de novo); Shears v. Commonwealth, 23 Va.App. 394, 398, 477 S.E.2d 309, 311 (1996) (citing Ornelas, 517 U.S. at 699, 116 S.Ct. 1657) (holding that determinations of reasonable suspicion and probable cause are reviewed de novo); Watson v. Commonwealth, 19 Va.App. 659, 663, 454 S.E.2d 358, 361 (1995) (citing Wilson v. Commonwealth, 13 Va.App. 549, 551, 413 S.E.2d 655, 656 (1992)) (holding that issue of whether a seizure continues or has abated is reviewed de novo)

"[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination," commonly known as Miranda warnings. Miranda, 384 U.S. at 444, 86 S.Ct. 1602. "Failure to give Miranda warnings prior to custodial interrogation requires suppression of any illegally obtained statements." Blain v. Commonwealth, 7 Va.App. 10, 13, 371 S.E.2d 838, 840 (1988) (citing Miranda, 384 U.S. at 479, 86 S.Ct. 1602). "Before Miranda is triggered, however, an individual must be both in `custody' and subjected to `interrogation.'" Id.

The Commonwealth concedes that appellant was not administered Miranda warnings at any point prior to her statement. Similarly, the Commonwealth conceded in the trial court that appellant was in custody at the time of the statement and is bound by that concession here. See, e.g., Johnson v. Commonwealth, 26 Va.App. 674, 683, 496 S.E.2d 143, 147 (1998) (citing Manns v. Commonwealth, 13 Va.App. 677, 679-80, 414 S.E.2d 613, 615 (1992)). Initially, we must determine whether appellant was subjected to interrogation, i.e., "express questioning or its functional equivalent." See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The Commonwealth also argues that MacFall's statements to appellant fall under a "routine booking question" exception to Miranda, and that, even if appellant's statements were obtained in violation of Miranda, the exclusionary rule should not apply because the Commonwealth would have inevitably discovered the evidence. Finally, the Commonwealth argues that the admission of appellant's statements was harmless error.

A.

Functional Equivalent of Questioning

After hearing evidence that appellant's name was Kelly Timbers rather than Gwendolyn Timbers, MacFall called appellant by the name Kelly Timbers and told her that, if she was Kelly Timbers, she needed to come forth with that information. MacFall did not expressly question appellant. For Miranda purposes, however, interrogation also includes the functional equivalent of questioning. Innis, 446 U.S. at 300-01, 100 S.Ct. 1682.

The Supreme Court has defined the functional equivalent of questioning as "any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301, 100 S.Ct. 1682; see also Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (citing Innis, 446 U.S. at 301, 100 S.Ct. 1682); Arizona v. Mauro, 481 U.S. 520, 526-27, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987) (citing Innis, 446...