Williams v. Com.

• Decision Date: 16 December 2008
• Docket Number: Record No. 2558-07-1.
• Citation: 53 Va. App. 50,669 S.E.2d 354
• Court: Virginia Court of Appeals
• Parties: Fred C. WILLIAMS, s/k/a Fred C. Williams, Jr. v. COMMONWEALTH of Virginia.

669 S.E.2d 354

53 Va. App. 50

Fred C. WILLIAMS, s/k/a Fred C. Williams, Jr. v. COMMONWEALTH of Virginia.

Record No. 2558-07-1.

Court of Appeals of Virginia, Richmond.

December 16, 2008.

S. Jane Chittom, Appellate Defender, for appellant.

Gregory W. Franklin, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER, HUMPHREYS and POWELL, JJ.

HUMPHREYS, Judge.

Fred C. Williams ("Williams") appeals his conviction for grand larceny, in violation of Code § 18.2-95, and conspiracy to commit grand larceny, in violation of Code § 18.2-23(B). Williams argues that the trial court erred by refusing to suppress statements that he made to a police officer because the warning given by the officer did not sufficiently advise him of his right to an attorney. Williams also argues that the trial court erred by holding that the evidence was sufficient to prove that he conspired to commit larceny. For the following reasons, we disagree.

I. BACKGROUND

"On appeal, we review the evidence in the light most favorable to the Commonwealth, the prevailing party below, giving it the benefit of all reasonable inferences." Pierce v. Commonwealth, 50 Va.App. 609, 612, 652 S.E.2d 785, 787 (2007). So viewed, the evidence established the following.

Late in the evening of January 9, 2007, Adrian Smith ("Smith") broke into two trailers on the property of Old Dominion Metals. From those trailers, Smith removed several Rubbermaid containers containing copper and brass, and placed the containers between the two trailers. The containers were too heavy for Smith to carry away by himself, so he called Williams and asked him to help him "pick some stuff up." When Williams arrived, Smith told Williams that he had removed several containers from the trailers and needed help carrying them away. Williams drove his truck to the trailers, where he and Smith loaded the containers into the truck's bed. Williams then drove the truck with the metal to Smith's house. Williams later admitted that he knew at the time that Smith did not have permission to take the containers.

Williams was subsequently arrested on an unrelated charge, and was being held at the Chesapeake City Jail, when Detective Mark Anthony ("Detective Anthony") of the Portsmouth Police Department went to speak with him. Prior to speaking with Williams about the stolen metal, Detective Anthony gave him the following warnings:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, the Court will consider appointing an attorney for you.

Detective Anthony then asked Williams if he understood his rights, and Williams responded "Yes." Williams went on to describe the facts set forth above.

Following his confession, the Commonwealth charged Williams with grand larceny, in violation of Code § 18.2-95 and conspiracy to commit grand larceny, in violation of Code § 18.2-23(B). Prior to trial, Williams moved to suppress his confession, arguing that he was not sufficiently apprised of his right to an attorney. Williams claimed that the officer's statement that the court would "consider" appointing an attorney did not satisfy the requirements enunciated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied Williams' motion.

At trial, the Commonwealth presented only one witness, Detective Anthony. Detective Anthony testified about what Williams had told him during the interview in the Chesapeake City Jail. Williams moved to strike the evidence, claiming that the Commonwealth failed to prove a conspiracy because Smith had already "completed" the larceny before Williams agreed to assist him. The trial court denied Williams' motion and ultimately convicted him of both charges.

II. ANALYSIS

A. The Miranda Warnings

Williams claims that Detective Anthony violated his Fifth Amendment rights by interrogating him without adequately warning him of his rights against self-incrimination. Williams argues that Detective Anthony's statement, "If you cannot afford an attorney, the Court will consider appointing an attorney for you," was not sufficient to inform him of his right to an attorney. Specifically, Williams claims that statement does not convey "the absolute right to have counsel appointed if one is indigent."

"On appeal from a trial court's denial of a motion to suppress, the burden is on the appellant to show that the denial of the motion constituted reversible error." Emerson v. Commonwealth, 43 Va.App. 263, 272, 597 S.E.2d 242, 247 (2004). "[W]e are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc). However, "[w]e review de novo questions of law and the `trial court's application of defined legal standards to the particular facts of a case.'" Emerson, 43 Va.App. at 272, 597 S.E.2d at 247 (quoting Watts v. Commonwealth, 38 Va.App. 206, 213, 562 S.E.2d 699, 703 (2002)).

In Miranda, the Supreme Court of the United States "established certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation." Duckworth v. Eagan, 492 U.S. 195, 202, 109 S.Ct. 2875, 2880, 106 L.Ed.2d 166 (1989). Specifically, the Court required that a suspect be told that

he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda, 384 U.S. at 479, 86 S.Ct. at 1630 (emphasis added). However, the Supreme Court has "never insisted that Miranda warnings be given in the exact form described in that decision." Duckworth, 492 U.S. at 202, 109 S.Ct. at 2880. "In Miranda itself, the Court said that `the warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.'" Id. (quoting Miranda, 384 U.S. at 476, 86 S.Ct. at 1629) (emphasis in original). Moreover, "`the rigidity of Miranda [does not] extend to the precise formulation of the warnings given a criminal defendant,' and [] `no talismanic incantation [is] required to satisfy its strictures.'" Id. at 202-03, 109 S.Ct. at 2880 (quoting California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981) (per curiam)) (first and last alteration in original).

Thus, the mere fact that Detective Anthony did not use the exact language of Miranda does not make the warning ineffective. In order to determine whether Detective Anthony adequately advised Williams of his rights, we must determine if Detective Anthony's statement was a "fully effective equivalent" to the warnings articulated in Miranda. 384 U.S. at 476, 86 S.Ct. at 1629.

In Duckworth, the Supreme Court of the United States addressed a similar situation. In that case,

The police told respondent that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had "this right to the advice and presence of a lawyer even if [he could] not afford to hire one," and that he had the "right to stop answering at any time until [he] talked to a lawyer." As noted, the police also added that they could not provide respondent with a lawyer, but that one would be appointed "if and when you go to court."

Duckworth, 492 U.S. at 203, 109 S.Ct. at 2880 (citations omitted) (emphasis added). The United States Court of Appeals for the Seventh Circuit held that the

"if and when you go to court" language suggested that "only those accused who can afford an attorney have the right to have one present before answering any questions," and "implie[d] that if the accused does not `go to court,' i.e.[,] the government does not file charges, the accused is not entitled to [counsel] at all."

Id. (quoting Eagan v. Duckworth, 843 F.2d 1554, 1557 (7th Cir.1988)) (alteration in original). The Supreme Court held that the Seventh Circuit "misapprehended the effect of the inclusion of `if and when you go to court' language." Id. The Court reasoned that the "if and when" language simply "described the procedure for the appointment of counsel," explaining that, "[u]nder Indiana law, counsel is appointed at the defendant's initial appearance in court." Id. at 204, 109 S.Ct. at 2881 (citing Ind.Code § 35-33-7-6 (1988)). The Court concluded that the warning given "touched all of the bases required by Miranda," and, was therefore, sufficient to alert the defendant to his Fifth Amendment rights. Id. at 203, 109 S.Ct. at 2880.

Here, as in Duckworth, the officer added language to the Miranda warning that could be interpreted as qualifying or limiting the suspect's Fifth Amendment rights. However, as was the case in Duckworth, Detective Anthony's warning did nothing more than "describe[] the procedure for appointment of counsel." Id. at 204, 109 S.Ct. at 2881. In Virginia, the government does not provide attorneys merely because someone claims to be unable to afford one. Code § 19.2-159 provides:

If the accused shall claim that he is indigent ... the court shall determine from oral examination of the accused or other competent evidence whether or not the accused is indigent within the contemplation of law pursuant to the guidelines set forth in this section.

Thus, Detective Anthony's statement that "the court will consider appointing an attorney" was technically accurate in reflecting the procedure set forth in Code § 19.2-159. Had Williams claimed to be unable to afford an attorney, he would have had to appear in c...