COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2360-00-2 JUDGE LARRY G. ELDER
MARCH 6, 2001
ANABELIS CORRALES
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
John Franklin for appellee.
Anabelis Corrales (defendant) stands indicted for the
murder of her newborn infant. The Commonwealth appeals a
pretrial ruling granting defendant's motion to suppress three
statements defendant made to police. On appeal, the
Commonwealth contends the trial court erroneously suppressed the
evidence because defendant was not in custody when interviewed
by the police in her hospital room on three separate occasions.
It also contends that even if the interviews were custodial,
defendant validly waived her right to have counsel present after
initially invoking that right. We hold the evidence supported
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the trial court's finding that the interviews were custodial and
that defendant invoked and did not validly waive her right to
counsel. Therefore, we affirm the trial court's suppression of
defendant's statements and remand for further proceedings
consistent with this opinion if the Commonwealth be so advised.
On appeal of a ruling on a motion to suppress, we view the
evidence in the light most favorable to the prevailing party,
here the defendant, granting to it all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound
by the trial court's findings of historical fact unless 'plainly
wrong' or without evidence to support them[,] and we give due
weight to the inferences drawn from those facts by resident
judges and local law enforcement officers." 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, 1663, 134 L. Ed. 2d 911 (1996)). However, we
review de novo the trial court's application of defined legal
standards to the particular facts of the case. See Ornelas, 517
U.S. at 699, 116 S. Ct. at 1663.
A.
CUSTODIAL STATUS
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694 (1966), holds that "statements stemming from
custodial interrogation are inadmissible unless certain
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procedural safeguards effective to secure the privilege against
self-incrimination are provided. Custodial interrogation is
'questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.'" Wass v.
Commonwealth, 5 Va. App. 27, 29-30, 359 S.E.2d 836, 837 (1987)
(quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612).
The totality of circumstances must be
considered in determining whether the
suspect is in custody when questioned
. . . . It is only when a suspect's freedom
of movement is curtailed to a degree
associated with formal arrest that the
suspect is entitled to the full protection
of Miranda. In making that determination,
the situation must be viewed from the
vantage point of "how a reasonable [person]
in the suspect's position would have
understood his situation."
Id. at 32, 359 S.E.2d at 839 (quoting Berkemer v. McCarty, 468
U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317 (1984)).
Appropriate factors for consideration include the nature of
the surroundings in which the questioning takes place, "the
number of police officers present, the degree of physical
restraint, and the duration and character of the interrogation."
Id. at 32-33, 359 S.E.2d at 839. The existence of probable
cause to arrest, the focus of the investigation on a particular
suspect, and "'"the extent to which he or she is confronted with
evidence of guilt"'" are also relevant factors. Id. at 33, 359
S.E.2d at 839 (quoting United States v. Bautista, 684 F.2d 1286,
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1292 (9th Cir. 1982) (quoting United States v. Booth, 669 F.2d
1231, 1235 (9th Cir. 1982))). "An officer's knowledge or
beliefs may bear upon the custody issue if they are conveyed, by
word or deed, to the individual being questioned. Those beliefs
are relevant . . . to the extent they would affect how a
reasonable person in the position of the individual being
questioned would gauge the breadth of his or her 'freedom of
action.'" Stansbury v. California, 511 U.S. 318, 325, 114
S. Ct. 1526, 1530, 128 L. Ed. 2d 293 (1994) (quoting Berkemer,
468 U.S. at 440, 104 S. Ct. at 3150) (other citations omitted).
The fact that one is hospitalized at the time of an
interrogation does not automatically render the interrogation
custodial, see Taylor v. Commonwealth, 26 Va. App. 485, 489,
491-92, 495 S.E.2d 522, 524, 525 (1998) (assuming without
discussion that interview of hospitalized driver regarding car
accident was non-custodial), but it is an appropriate factor for
inclusion in the analysis of whether a reasonable person would
have believed she was in custody, see State v. Choinacki, 734
A.2d 324, 338-40 (N.J. Super. Ct. App. Div. 1999) (considering
factors such as whether police transported suspect to hospital,
posted guard outside suspect's room, or otherwise prevented
suspect from leaving), cert. denied, 743 A.2d 849 (1999).
Here, the evidence, viewed in the light most favorable to
defendant, supports the trial court's ruling that defendant was
in custody while being questioned by police. Officer Perkins'
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interrogation of defendant occurred while the sleepy defendant
was receiving medical treatment for a birth which occurred at
home and necessitated subsequent inpatient care. Hospital
personnel had earlier denied defendant's boyfriend entry into
defendant's hospital room at the request of police. Although
visitors were in defendant's room when Officer Perkins arrived,
hospital personnel asked them to leave. Perkins then closed
defendant's hospital room door, and no one but hospital
personnel entered while the questioning was taking place.
Although police allowed defendant's sister, Rosa Corrales, to be
present during the second interrogation, they did so in an
express attempt to establish that it was defendant and not her
sister who put the baby in the closet.
Other evidence established that defendant spoke only broken
English, and the person who acted as an interpreter for Officer
Perkins, Ed Medina, was also a police officer. The officers
spent one hour and twenty minutes interrogating defendant the
first time and returned less than two hours later to interrogate
her a second time. Perkins admitted that he had "focused" his
investigation on defendant and that she was his "prime suspect."
Although the officers did not tell defendant this specifically,
Medina told defendant that they "[were] going to" and "[had] to
ask [her] some questions about what happened today," and they
read defendant her Miranda rights. Defendant was Mirandized
again during the third interrogation.
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Whether the police have Mirandized a suspect, although not
conclusive evidence of one's custodial status, see United States
v. Owens, 431 F.2d 349, 352 (5th Cir. 1970), is an appropriate
factor to be considered in the totality-of-the-circumstances
analysis, see Wass, 5 Va. App. at 32-33, 359 S.E.2d at 839.
Under the facts of this case, we hold that defendant's receipt
of her Miranda rights would convey to a reasonable person in
defendant's position that the police had, in fact, focused their
investigation on her, and additional circumstances reinforced
this view. After defendant had been Mirandized, Perkins made
statements indicating his belief that defendant was responsible
for the death of her infant. Perkins said one of the nurses
reported defendant's confession to placing the baby in the
toilet, and Perkins indicated he thought defendant was lying
when she said she did not remember what had occurred. Further,
the second interrogation was for the express purpose of
"confront[ing] [defendant] about [defendant's] putting the baby
in the closet," thereby emphasizing that defendant was their
prime suspect in the murder investigation.
Although Perkins and Medina testified that defendant was
not in custody and was free to leave or terminate the interviews
at any time, the totality of the circumstances supports the
trial court's finding that a reasonable person in defendant's
position would have believed she was in custody for the murder
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of her child while confined with the officers in her hospital
room.
B.
RIGHT TO COUNSEL
"If, while in custody, a person invokes the right to have
counsel present, the police may not resume interrogation until
counsel has been made available or until the individual
re-initiates communications and waives . . . her right to
counsel." Pugliese v. Commonwealth, 16 Va. App. 82, 87, 428
S.E.2d 16, 21 (1993) (citing Edwards v. Arizona, 451 U.S. 477,
484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981)). The
interrogation also must cease if a person in custody invokes her
right to remain silent. Michigan v. Mosley, 423 U.S. 96, 101,
96 S. Ct. 321, 325, 46 L. Ed. 2d 313 (1975). "Police officers
may not resume interrogation of a person in custody who has
asserted his right to remain silent unless they have
'scrupulously honored' that right." Pugliese, 16 Va. App. at
87, 428 S.E.2d at 21 (quoting Mosley, 423 U.S. at 102-04, 96
S. Ct. at 325-26).
The test for determining whether a suspect invoked either
right is an objective one. Davis v. United States, 512 U.S.
452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994)
(applying objective test to invocation of right to counsel);
Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir. 1995)
(applying objective test of Davis to invocation of right to
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remain silent). A suspect must articulate her desire to
exercise her right to silence or counsel "'with sufficient
clarity that a reasonable police officer in the circumstances
would understand the statement to be an assertion of [the right
at issue].'" Medina, 59 F.3d at 1101 (quoting Coleman v.
Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994)).
Any statement or confession obtained in violation of these
principles is presumed to have been the result of an involuntary
waiver of one's constitutional rights and, therefore, any
evidence obtained as a result is inadmissible. See Giles v.
Commonwealth, 28 Va. App. 527, 530-31, 507 S.E.2d 102, 104
(1998); Pugliese, 16 Va. App. at 87, 428 S.E.2d at 21. We are
bound by the trial court's "subsidiary factual findings"
underpinning both these issues unless they are plainly wrong.
Pugliese, 16 Va. App. at 87, 88, 428 S.E.2d at 21; see Giles, 28
Va. App. at 532-33, 507 S.E.2d at 105.
Here, the trial court accepted the translation of the
interview prepared by certified translator Michelle Kusuda.
That transcript revealed the following exchange:
Medina: This, do you want an attorney now?
[Defendant]: Yes.
Medina: I beg your pardon?
[Defendant]: Yes.
Medina: Do you want an attorney?
[Defendant]: Yes.
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Medina: Ok. Well, you do not want to talk
with us now any more then…
[Defendant]: No
Medina: That is what I need.
Medina: Do you want an attorney here now?
[Defendant]: No. No, it's alright.
Medina: Are you sure? That is not a
problem for me. I want to know that you are
sure of everything before you answer.
[Defendant]: Well, I think it is alright
with you. It is not necessary.
Medina: It isn't necessary then?
[Defendant]: No.
Medina: Ok.
Medina: We questioned her whether she
wanted a lawyer or not. She changed her
mind. She said she would be willing to talk
to us.
Perkins: So she wants to talk to us?
Medina: Yeah, that's what she says.
Relying on this passage, the court found that defendant
unambiguously requested an attorney three times in succession by
answering, "Yes," to Medina's questions regarding her desire for
counsel and that she made an unambiguous request to terminate
the interview. Although Officer Medina testified that he had
trouble hearing defendant and asked her to repeat herself only
because he was not sure whether she was invoking her right to
counsel, the trial court rejected this testimony, as it was free
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to do. Because the officers did not cease questioning defendant
after she unequivocally invoked her rights to silence and
counsel, the evidence supports the trial court's exclusion of
her subsequent statements.
For these reasons, we affirm the trial court's suppression
of appellant's statements and remand to the trial court for
further proceedings consistent with this opinion.
Affirmed and remanded.
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