Webber v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia

FREDERICK WEBBER, S/K/A
FREDERICK WEBER
OPINION BY
v. Record No. 0621-97-1 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Marc Jacobson, Judge
James O. Broccoletti (Zoby & Broccoletti, on
briefs), for appellant.

Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

On appeal, Frederick Weber contends: (1) that the trial

court erred in refusing to suppress statements he made to the

police; (2) that the evidence was insufficient to support his

conviction for second-degree murder; and (3) that the trial court

erred in refusing to declare a mistrial due to the prosecutor's

improper comments. We affirm the judgment of the trial court.

I. MOTION TO SUPPRESS

A. BACKGROUND

On November 17, 1994, around 7:00 p.m., Frederick Weber and

his wife, Robin Weber, brought their twenty-nine-day-old son,

Andrew Joseph Weber, to Norfolk Sentara General Hospital.

Norfolk Police Investigators Evans and Chupik, who were at the

hospital on unrelated business, learned that the circumstances

suggested child abuse. Beginning at 8:05 p.m., Evans spoke with
Weber for approximately twelve minutes concerning the baby's

injuries. Evans and Chupik later learned from Dr. Arlo Zaritsky

that the baby's injuries were consistent with Shaken Baby

Syndrome. 1

The baby was transferred to Children's Hospital of the

King's Daughters, where he died on November 27, 1994.

On November 17, 1994, from 9:00 p.m. until 9:25 p.m., at

Children's Hospital and in the presence of a child protective

services worker, Evans spoke with Weber and his wife concerning

what had happened to the baby. At 10:55 p.m., Weber and his wife

came out of the intensive care unit. Chupik asked Weber, who was

visibly upset, how he was doing. Weber replied that he was

watching his son die and that the doctor had accused him of

causing the baby's injuries. He then said, "I don't want to talk

to anybody."
Shortly thereafter, Evans and Chupik told Weber and his wife

that "[they] needed to talk to them and [they would] like for

1
Dr. Zaritsky described Shaken Baby Syndrome as "a type of
injury that's caused by a very vigorous shaking of a small infant
and typically an infant less than a year of age. That occurs
presumably because the neck muscles are not as strong, and so the
head tends to move back and forth fairly rapidly. And the brain
substance is much like jello inside the skull, so the movements
in each direction tend to deform or cause the brain to kind of
move in a way that's not as fast as the head itself is moving, so
it basically is thought to really be bumping on the front side
and back side of the skull. And in addition there's tearing of
the substance of the brain because of it's [sic] sort of jello or
gelatinous nature. And there's literally on a microscopic level
tearing of the connections between nerves that are called axons
that one can see."

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them to come down to the Police Operations Center." Weber

testified that when he was asked to go to the police station, he

told the officers that he "had talked to [his] mother-in-law and

[he] wanted to talk to -- would like to talk to an attorney

first." The police officers testified that Weber did not ask to

speak to an attorney. Weber and his wife accompanied the

officers and were driven to the police station in a police car.

Neither was arrested nor placed in handcuffs.
Upon arriving at the police station at 11:12 p.m., Weber and

his wife were placed in separate rooms. Evans and Chupik advised

Mrs. Weber of her Miranda rights. She requested an attorney, and

they questioned her no further.

Shortly after 1:00 a.m., Weber received a "Legal Rights

Advice Form," asking him, inter alia, whether he understood that

he had a right to remain silent, that he had a right to a lawyer,

and that a lawyer would be provided if he could not afford one.

He read the form and wrote, "Yes," below each question on the

form. He also wrote, "Yes," in the spaces indicating that he

understood his rights and that he wished to "waive these rights

and desire[d] to make a statement." Weber acknowledged on the

form that "[t]his statement is completely free and voluntary on

my part without any threat or promise from anyone." He signed

the form at 1:11 a.m. Evans then interviewed Weber for

thirty-six minutes. During the interview, Weber stated that the

baby went limp and he shook and slapped the baby in an attempt to

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revive him. After the interview, Weber was given a soft drink

and used the rest room.

The officers interviewed Weber again from 3:00 a.m. until

3:38 a.m. At 4:05 a.m., Chupik took Weber outside for ten

minutes, to get some fresh air and to smoke a cigarette. From

4:20 a.m. until 4:56 a.m., Weber tape-recorded a statement. At

6:35 a.m., Weber consented to Chupik's request to search his

home. At 6:36 a.m., Weber went to the bathroom. At 7:50 a.m.,

Evans arrested Weber on a charge of felony child neglect.
From 9:07 a.m. until 9:40 a.m., Weber reviewed, corrected,

initialed, and signed a copy of his transcribed statement. When

asked at 10:06 a.m. whether he needed or wanted anything, he

replied, "no." At 10:14 a.m., Weber asked to call a friend, "who

might have some information about a lawyer." This request was

denied.

Weber was taken to the bathroom at 10:28 a.m. and was given

a soft drink at 11:40 a.m. He agreed to a polygraph examination,

which was conducted at 1:12 p.m. Weber testified that before

agreeing to the polygraph examination, he told the police, "I

would like to talk to an attorney about it first." The officers

denied that Weber made that request. The polygraph examiner

asked Weber whether he had been sleeping. Weber replied that he

had taken "cat naps." The examiner displayed a copy of the legal

rights form that Weber had signed, and advised him that those

legal rights still applied. At 1:17 p.m., Weber declined the

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examiner's offer of water.

At 2:22 p.m., Weber was asked again whether he wanted

anything to eat or drink or whether he needed to use the rest

room. He declined the offer of food or drink but accepted a

cigarette. Officers interviewed Weber from 2:47 p.m. until 3:30

p.m., and from 3:40 p.m. until 4:20 p.m.

From 4:24 p.m. until 4:55 p.m., Sergeant Williams and

Investigator Evans interviewed Weber, who then admitted shaking

the baby before the baby went limp. Weber testified that the

officers told him that "they would be taking me back to see my

son after they had gotten what they needed." The officers denied

having made that statement. After confessing, Weber began crying

very hard, and Williams brought him a glass of water. From 5:15

p.m. until 5:25 p.m., Weber made an audio recording of his

statement. The statement included the following dialogue:
BY INV. CHUPIK:

Q. Fred, you've been down here quite a long
time. Have you been treated well during
all this time and been offered the use
of our facilities and given something to
drink and offered something to eat
during all this?

A. Yes.

BY INV. EVANS:

Q. Has anyone threatened you in any way?

A. No.

After recording his statement, Weber used the rest room,

went outside, returned, and was given a meal from a fast-food

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restaurant. From 6:56 p.m. until 7:05 p.m., Weber reviewed,

corrected, and signed his transcribed statement. He initialed

the top and bottom of each page. He was then transferred to

another location for booking.

The trial court denied Weber's motion to suppress the

statements he made to the police.

B. PRE-CUSTODIAL ASSERTION

Weber contends that the police violated his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), by continuing to

question him after he stated at the hospital that he did not want

to talk to anybody. Because Weber was not in custody at that

time, this assertion did not invoke Miranda protections.

In a custodial interrogation:
Once warnings have been given, the
subsequent procedure is clear. If the
individual indicates in any manner, at any
time prior to or during questioning, that he
wishes to remain silent, the interrogation
must cease. At this point he has shown that
he intends to exercise his Fifth Amendment
privilege; any statement taken after the
person invokes his privilege cannot be other
than the product of compulsion, subtle or
otherwise.

Miranda, 384 U.S. at 473-74. Miranda forbids continued

interrogation of an individual in custody after he has invoked

his right to remain silent. Michigan v. Mosley, 423 U.S. 96, 101

(1975). The requirement that police officers "scrupulously

honor" a suspect's desire to cease questioning derives from the

pressures inherent in custodial interrogation. See id. at 104.

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However, the protection afforded by Miranda applies only when a

suspect is subjected to custodial interrogation. Davis v.

Allsbrooks, 778 F.2d 168, 170-71 (4th Cir. 1985). See Pruett v.

Commonwealth, 232 Va. 266, 272, 351 S.E.2d 1, 4 (1986)

(explaining that Miranda does not apply to a police officer's

general questioning of citizens in the course of the fact-finding

process). Cf. Tipton v. Commonwealth, 18 Va. App. 832, 835, 447

S.E.2d 539, 540 (1994) (holding that the right to an attorney

does not apply when invoked during non-custodial interrogation).
Weber was not in custody at the hospital. Because he was

not in custody when he stated his desire not to talk, that

assertion did not invoke Miranda to bar the use of his subsequent

statements.

C. RIGHT TO COUNSEL

Weber contends that his continued interrogation by the

police after he requested an attorney violated Edwards v.

Arizona, 451 U.S. 477 (1981). We disagree.

First, Weber argues that at the hospital, prior to

accompanying the officers to the police station, he asked to

speak with an attorney.
Edwards held that when an accused,
during a custodial interrogation, invokes the
right to have counsel present, the police may
not resume the interrogation until the
individual re-initiates communications and
waives his right to counsel. The Edwards
rule has not been expanded to include
non-custodial demands for an attorney . . . .

Tipton, 18 Va. App. at 834, 447 S.E.2d at 540 (citation omitted)

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(emphasis in original). Weber was not in custody at the

hospital. Accordingly, his assertion at the hospital did not

invoke the rule in Edwards.

Next, Weber argues that the police impermissibly questioned

him after he requested counsel while in custody. See Edwards,

451 U.S. at 484-85. The operation of the Edwards rule requires

an initial finding that the suspect properly invoked his right to

counsel. See Eaton v. Commonwealth, 240 Va. 236, 253-54, 397

S.E.2d 385, 395-96 (1990) (holding that a suspect must assert his

right to counsel clearly); Midkiff v. Commonwealth, 250 Va. 262,
266, 462 S.E.2d 112, 115 (1995) (assertion must be "clear and

unambiguous").

"Whether an individual requested counsel is a factual

determination, and that finding will not be disturbed on appeal

unless clearly erroneous." Pugliese v. Commonwealth, 16 Va. App.

82, 87, 428 S.E.2d 16, 21 (1993) (citation omitted). Evans,

Chupik and Williams all denied that Weber requested an attorney,

"an event which police officers would be expected to observe and

remember." Id. The trial court "believe[d] and accept[ed] the

testimony of the investigative officers that the defendant never

clearly and unambiguously invoked his right to counsel." The

evidence supports this ruling.

D. VOLUNTARINESS OF STATEMENT

Weber contends that the length and circumstances of his

custody and interrogation render his statements to the police

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involuntary as the products of duress and coercion.

In Bottenfield v. Commonwealth, 25 Va. App. 316, 487 S.E.2d

883 (1997), we stated that:
The Commonwealth has the burden to
prove, by a preponderance of the evidence,
that a defendant's confession was freely and
voluntarily given. In determining whether a
statement or a confession was voluntary, the
trial court must decide whether the statement
was the "product of an essentially free and
unconstrained choice by its maker," or
whether the maker's will "has been overborne
and his capacity for self-determination
critically impaired." In so deciding, the
trial court must look to "the totality of all
the surrounding circumstances." The court
must consider the defendant's age,
intelligence, mental and physical condition,
background and experience with the criminal
justice system, the conduct of the police,
and the circumstances of the interview.
Because only state action may violate a
criminal defendant's due process rights,
"coercive police activity is a necessary
predicate to the finding that a confession is
not 'voluntary' within the meaning of the Due
Process Clause of the Fourteenth Amendment."

Id. at 323, 487 S.E.2d at 886-87 (citations and quotations

omitted) (emphasis in original).

Weber completed high school, attended a year of college,

completed two years of advanced electronics training in the

United States Navy and was graduated from a private investigation

school. He acknowledged that he understood his Miranda rights
and signed a form stating that he wished to make a statement to

the police. Before administering the polygraph examination, the

polygraph examiner reminded Weber that he could assert his legal

rights. Evans, Chupik and Williams testified that they neither

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threatened Weber nor promised him anything in return for his

statement. In his final statement, Weber confirmed that the

police had not threatened him and that he had been well treated.

He subsequently reviewed, corrected and signed this statement.

The lengthy course of interrogation raises concern as to

whether the duration and constraints of custody amounted to

coercion. However, the interviews themselves were relatively

short. Before, during and after the interviews, Weber was

treated with respect. He was afforded necessary comforts. He

was provided food, drink, cigarettes, and the use of rest room

facilities. He took short naps. On more than one occasion, he

went outside for fresh air. He never protested that he felt

tired or weakened.
The trial court found that Weber's statements were the

product of an essentially free and unconstrained choice and that

Weber's will was not overborne despite the circumstances and

conditions of his custody. The trial court found no evidence of

police promises or "trickery." The record supports these

findings.

On appeal from a trial court's decision on a suppression

motion, "it is clear that we must conduct an independent review

of the question whether a confession is voluntary. However in

making that determination, we are bound by the trial court's

subsidiary factual findings unless those findings are plainly

wrong." Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d

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655, 656 (1992). Based upon our review of the record, we hold

that Weber's statements were made voluntarily. He waived his

right to remain silent knowingly and voluntarily, without

coercion, threats or promises, and after being fully advised of

his Miranda rights. Accordingly, the trial court did not err in

denying his motion to suppress his statements to the police.

E. DELAY IN BRINGING BEFORE MAGISTRATE

Weber contends that the police delayed unnecessarily in

bringing him before a magistrate. He argues that the delay

transformed his lawful custody into an unconstitutional

detention, requiring exclusion of any evidence derived from that

detention.
Code § 19.2-80 provides, in pertinent part:

[A]n officer making an arrest under a warrant
or capias shall bring the arrested person
without unnecessary delay before and return
such warrant or capias to a court of
appropriate jurisdiction . . . .

However:

[N]ot every violation of the requirement that
a suspect be taken before a magistrate
without unnecessary delay results in the
exclusion of evidence. Only in a situation
where the delay in taking a suspect before a
magistrate resulted in the loss of
exculpatory evidence have we concluded that
the defendant's due process rights were
violated and reversed his conviction. In all
other cases, though we have acknowledged
violation of the statute, we found no
deprivation of the defendant's constitutional
rights.

Horne v. Commonwealth, 230 Va. 512, 518-19, 339 S.E.2d 186, 191

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(1986) (citations omitted). The record discloses no loss of

exculpatory evidence.

Assuming, without deciding, that the delay caused by

interrogating Weber was unnecessary, we hold that the delay was a

mere procedural statutory violation, not a denial of a

constitutional right. Therefore, the statements obtained during

the delay were properly admitted. See id. at 519, 339 S.E.2d at

191; Alatishe v. Commonwealth, 12 Va. App. 376, 379, 404 S.E.2d

81, 83 (1991).

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 II. SUFFICIENCY OF EVIDENCE

Weber contends that the evidence was insufficient to support

his conviction for second-degree murder. He argues that the

Commonwealth failed to prove that his conduct caused the baby's

death.

On November 17, 1994, at 5:15 p.m. Robin Weber arrived home

and handed the baby to Weber. In his final statement to the

police, Weber explained:
I was getting a little frustrated, and I got
up to open the windows. And I hollered at
Robin about not opening the windows. It was
getting hot in there. She should know better
with her cooking that it was getting hot.
She apologized.
I went back in the room, and he was
still crying. I went to sit down and he was
still crying. I went to sit down. I was
getting really frustrated and I took him from
my shoulder, and I was like, "What is wrong?"
And I gave him two quick jerks. I didn't
realize it was so rough.

* * * * * * *

Well, I asked him "what's wrong?" and I
put him on my shoulder and rocked him. His
arm was up around my neck, and it started to
drift down to my chest. I took him off my
chest, because he was starting to feel really
limp, and I looked at him, and he was really
-- and he was real dreamy-eyed. And I said,
"Robin, come in here, there's something
wrong," and I shook him, like I said before,
like a washing machine just side-to-side,
trying to get a response from him, and he
cried a little bit. She came in, and I said
"There's something wrong." And I put him up
on my hand and lifted him up over so he could
rest on my hand horizontally -- he was just
limp over my hand. I brought him back down,
and I tried to get a response, and I slapped
him on his face on both sides trying to get
something out of him. He cried a little

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bit . . . .

* * * * * * *
Q: And he went limp after you shook
him?

WEBER: Yes.

Q: How many times do you think you
shook him?

WEBER: Twice.

Q: Could you describe for me how you
shook him?
WEBER: It was quick jerks.

Q: Where were your hands?

WEBER: Underneath his chest like this.
His armpits were in the crux of my
thumb and my finger, my thumb and
my index finger.

Q: And you jerked him back and forth?

WEBER: Yes.

Q: And right after that is when you
put him on your chest?

WEBER: Yes.

Q: And that's when you noticed that he
started going limp?

WEBER: Yes.

Q: When did you strike his ears or the
side of his head?

WEBER: His face. I thought I was just
smacking his face. . . .

Q: Which hand did you strike him with?

WEBER: My right.

Q: And with both sides of your hands,

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 or --

WEBER: Yes.

Q: How many times would you say you
struck him?

WEBER: I'd say once on each side, about,
yea. No, it was twice, first cross
hand then back hand, and then cross
hand and back hand.

Q: But he was fine up until the point
where you shook him; is that
correct?

WEBER: Yes.

Dr. Zaritsky testified that the infant suffered from retinal

hemorrhaging, subdural hemorrhaging and significant trauma to the

brain, resulting in swelling. In addition, there was bruising on

the infant's cheeks, ears, ribs, and the left side of the chin.

Dr. Zaritsky stated that these symptoms were consistent with a

diagnosis of Shaken Baby Syndrome. He testified that two factors

produced the baby's death: (1) shaking that produced severe

swelling of the brain; and (2) the lapse of time before

treatment. Dr. Leah Bush, Assistant Chief Medical Examiner,

concurred in this diagnosis.

Dr. Zaritsky testified that the event that caused the

swelling of the brain occurred six to twelve hours before the

baby was brought to the hospital, or between 7:00 a.m. and 1:00

p.m. He concluded from his review of the baby's blood density

that the injuries occurred within the previous week. He

testified that the swelling of the brain was consistent with

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Weber's statement that the baby became limp.

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. The jury's verdict will

not be disturbed on appeal unless it is plainly wrong or without

evidence to support it." Maynard v. Commonwealth, 11 Va. App.

437, 439, 399 S.E.2d 635, 637 (1990) (en banc) (citations

omitted). When the sufficiency of the evidence is challenged on

appeal, "it is our duty to look to that evidence which tends to

support the verdict and to permit the verdict to stand unless

plainly wrong." Snyder v. Commonwealth, 202 Va. 1009, 1016, 121

S.E.2d 452, 457 (1961).

Weber argues that, although the evidence proved that he

shook and slapped the baby, it failed to prove that these acts

inflicted the baby's fatal injuries. He notes that Dr. Zaritsky

testified that the injuries that caused the baby's brain to swell

were suffered six to twelve hours prior to examination of the

baby in the hospital. Weber argues that this testimony

established a time frame proving that the baby's fatal injuries

were suffered several hours before the events described in his

confession. We find this argument unpersuasive. The jury, as

finder of fact, was not required to accept every detail of each

witness' testimony. Rather, it was the duty of the jury, upon

determining credibility and weight, to view the evidence as a

body and thus to determine the facts proven by that body of

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evidence.

The baby, though fretful, was in good condition until Weber

shook and slapped him. Following that assault, the baby went

limp and lapsed quickly into the condition from which he never

recovered. That condition was consistent with trauma resulting

from an assault such as Weber admitted inflicting on the baby.

The jury was not obliged to accept Weber's account of when the

shaking and slapping took place; nor was it obliged to accept

that the brain swelling fit precisely within the time frame

described by Dr. Zaritsky.
Weber further argues that even should the evidence be deemed

sufficient to prove that he inflicted the baby's fatal injuries,

it failed to prove that he did so maliciously. We disagree. "A

trier of fact may infer that a person intends the natural

consequences of his or her acts." Hernandez v. Commonwealth, 12

Va. App. 669, 672, 406 S.E.2d 398, 400 (1991). "In determining

the probable consequences of an aggressor's actions and his or

her intent to achieve those consequences, the comparative

weakness of the victim and the strength of the aggressor may be

considered." Campbell v. Commonwealth, 12 Va. App. 476, 485, 405

S.E.2d 1, 5 (1991) (en banc). Weber admitted that he was

"frustrated." He, a grown man, held the victim, a

twenty-nine-day-old baby, upright in his hands and shook the baby

side to side with "quick jerks." He then smacked the baby's

face, twice forehand, and twice backhand. The brutality of this

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assault supports the jury's finding of malice.

III. DENIAL OF MISTRIAL

During rebuttal argument at the sentencing phase of the

trial, the Commonwealth's attorney stated to the jury:
[Defense counsel] told you yesterday this was
a tragedy for everyone involved. Ladies and
gentlemen, child abuse is a tragedy for every
human being, and Andrew Joseph represents
that. Child abuse is a tragedy.

The trial court sustained Weber's objection to this argument but

denied his motion for a mistrial.
Weber contends that the quoted argument sought to inflame

the jury and to incite it to punish him for crimes committed by

others. We read no such purpose or effect into the quoted

argument. The argument responded to defense counsel's earlier

observation that the death of the baby was a tragedy for all

involved. The argument acknowledged the truth of that

observation and went on to observe the undeniable fact that child

abuse is a tragedy for all society. This argument in no way

sought to thrust upon Weber responsibility for anything other

than the crime for which he had been convicted. It neither

sought nor served to inflame the jury or to incite it to take an

improper view of the case. We find no error in the trial court's

denial of Weber's motion for a mistrial.

The judgment of the trial court is affirmed.

Affirmed.

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