COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
RONALD CASTANEDA RAMIREZ, A/K/A
RONALD CASTANADA, S/K/A
RONALD CASTANADA-RAMIREZ MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
v. Record No. 2971-95-2 JANUARY 14, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Michael Morchower (Morchower, Luxton &
Whaley, on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ronald Castaneda Ramirez (defendant) was convicted in a
bench trial for transportation of one or more ounces of cocaine
into the Commonwealth with the intent to sell or distribute it in
violation of Code § 18.2-248.01 and for distribution of cocaine
in violation of Code § 18.2-248. On appeal, he contends that the
trial court erred in failing to suppress statements he made to an
officer because the statements were made in violation of Miranda
v. Arizona, 384 U.S. 436 (1966). 1 We affirm the convictions.
On review, we examine the evidence "in the light most
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
This appeal was granted on April 22, 1996, on the sole
issue of whether the defendant's statements were voluntary and
properly introduced into evidence.
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of
a trial court, sitting without a jury, is entitled to the same
weight as a jury verdict and will be disturbed only if plainly
wrong or without evidence to support it. Id. The credibility of
a witness, the weight accorded the testimony, and the inferences
to be drawn from proven facts are matters solely within the
province of the fact finder. Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989).
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the issues on appeal.
On January 26, 1995, Special Agent Timothy Reibel of the
Virginia State Police negotiated a sale of cocaine outside the
Weston Motel in Crewe, Virginia. Reibel gave the defendant two
thousand seventy-five dollars ($2,075) and the defendant reached
under the front seat of the car he was in, pulled out two clear
plastic baggies containing cocaine and delivered them to the
officer. Police officers located in an adjacent motel room came
out and physically took control of the defendant. Special Agent
Steve Berry, who was Reibel's supervisor, arrested the defendant
for distribution of cocaine. According to the testimony of
Special Agent Reibel, Berry immediately advised the defendant of
his Miranda rights.
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The defendant was escorted into one of the motel rooms where
he was interviewed by Special Agent Steve Berry of the Virginia
State Police and Investigator John Rutledge of the Nottoway
County Sheriff's Office. Before any interrogation commenced,
Berry read the defendant his Miranda rights from a card. One
right read to him was that he had "the right to talk to a lawyer
and have him present while [he was] being questioned. . . ."
Berry testified that he asked Ramirez if he understood his rights
and he said he did. Berry also testified that he did not have
any problem conversing with Ramirez in English.
During the interview, Ramirez admitted he sold two ounces of
cocaine to the undercover officer. When asked where the rest of
the cocaine was, Ramirez stated that was all he brought with him.
Berry inquired further and said, "[A]re you telling me that's
all the cocaine that you brought up from Florida to sell?" The
defendant replied, "Yes." Berry then questioned, "[A]re you
telling me you transported two ounces of cocaine from Florida to
Virginia, obtained a motel room, sold the cocaine to the
undercover officer and made enough money to pay for your
expenses?" The defendant responded, "Yes."
After Berry commenced questioning the defendant about a
hotel room key in his pocket, the defendant said he would like to
talk to a lawyer. Berry then stopped the interrogation and did
not question the defendant further.
Berry did not record the defendant's statement. He made
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notes of his questions and answers during the interview and
subsequently dictated his police report from the notes. Berry
testified that upon reviewing his notes the next day, he added
"Miranda" and the date to them because he had neglected to
include this information when he was originally writing them.
Investigator John Rutledge did not personally question the
defendant. He testified that he was in and out of the motel room
and did not pay any attention to the conversation between the
police and the defendant. He stated that he did not hear any of
it.
Ramirez testified only upon the suppression issue and not
upon guilt or innocence. He stated that he did not "remember
that [Berry said] anything about" Miranda rights because he spoke
fast and there were several other officers speaking at the same
time. He testified that he was first advised of his rights by
Reibel at the Sheriff's office. He did not sign anything
indicating that he understood his rights.
The defendant testified that his native language was
Spanish, that he attended school through the twelfth grade in
Costa Rica, and that he received a GED in Spanish while living in
New York. At the time of the trial, he had lived in the United
States for fourteen years and had been speaking English about
four years.
The trial judge reviewed the evidence. He stated that he
had no difficulty understanding the defendant and he did not
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believe he had "particular difficulty with communication." The
trial judge stated that he believed Berry's testimony that he
gave defendant his Miranda warnings and that he did not believe
that Berry had falsely altered his notes to indicate that Miranda
rights were given.
We are confronted with two questions: (1) the standard of
review concerning the validity of a waiver of Miranda rights; and
(2) the standard of review concerning the voluntariness of a
confession.
Upon the first question, the Supreme Court has established
the standard:
[T]he inquiry whether a waiver of Miranda
rights was made knowingly and intelligently
is a question of fact, and the trial court's
resolution of that question is entitled on
appeal to a presumption of correctness.
[The trial court] evaluates the
credibility of the witnesses,
resolves any conflicts in the
testimony, and weighs the evidence
as a whole. The court must decide
whether the defendant knowingly and
intelligently relinquished and
abandoned his rights. The court's
determination is a question of fact
based upon the totality of
circumstances. This factual
finding will not be disturbed on
appeal unless plainly wrong.
Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163
(1992) (citation omitted).
"An express written or oral statement of waiver of rights is
not required. Waiver can be inferred from the actions and words
5
of the person interrogated." Cheng v. Commonwealth, 240 Va. 26,
35, 393 S.E.2d 599, 604 (1990). In Cheng, the Supreme Court held
that Cheng's decision to talk with the police officer, after
having been advised of his Miranda rights, constituted an implied
waiver of the Miranda rights.
In this case, the trial judge stated in the record that he
believed Special Agent Berry and that the Miranda warnings were
given prior to the defendant's statements. He also stated that
he had no difficulty communicating with the defendant. There is
credible evidence in the record to support the trial court's
determination that the defendant waived his Miranda rights, and
we so find.
Second, although the defendant may have waived his rights,
it must be shown that "the waiver is made voluntarily, knowingly
and intelligently." Miranda, 384 U.S. at 444. The Supreme Court
of Virginia has established the standard of review as follows:
"Whether a statement is voluntary is
ultimately a legal rather than factual
question. Subsidiary factual questions,
however, are entitled to a presumption of
correctness.
The test to be applied in determining
voluntariness is whether the statement is 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 determining whether
a defendant's will has been overborne, courts
look to 'the totality of all the surrounding
circumstances,' including the defendant's
background and experience and the conduct of
the police."
6
Roach v. Commonwealth, 251 Va. 324, 341, 468 S.E.2d 98, 108
(citations omitted), cert. denied, 117 S. Ct. 365 (1996).
The argument advanced by the defendant is that Spanish was
his primary language and that he did not speak the best English.
He testified that the officer was speaking so fast that he did
not hear him because there were other "guys" in the room
speaking. He does not contend that he was threatened or coerced
in any way. The interview lasted about five minutes and was
terminated when the defendant stated he wanted to consult an
attorney.
The Commonwealth presented evidence that the defendant was
read the Miranda warnings from a card and he stated that he
understood them. This is corroborated by the fact that after a
short period of interrogation, he did in fact request an
attorney. The record also disclosed that Ramirez obtained a GED
in New York in Spanish, and has been in this country for fourteen
years. Splecial Agents Reibel and Berry both testified that they
had no difficulty in communicating with him. The trial judge
commented that the testimony before him convinced him that the
defendant did not have any "particular difficulty with
communication." The evidence does not disclose any threats or
coercion on the part of the police.
Based upon our independent examination of the record, we
conclude that the defendant's will was not overborne, that his
capacity for self-determination was not critically impaired, and
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that his confession was the product of a free and unconstrained
choice.
For the foregoing reasons we affirm the convictions.
Affirmed.
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