COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
JOSEPH DEAN GARDNER
v. Record No. 1050-95-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
Ronald L. Smith for appellant.
Linwood T. Wells, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Joseph Dean Gardner (defendant) was convicted in a bench
trial for taking indecent liberties with a child under the age
of fourteen years, rape, and sodomy. On appeal, defendant
complains that the trial court erroneously admitted certain
inculpatory statements and challenges the sufficiency of the
evidence. For the reasons set forth below, we reverse the
convictions.
The parties are fully conversant with the record, and we
recite only those facts necessary to a disposition of this
appeal.
1
On September 5, 1993, Kathy Fallon notified police of the
subject offenses, which occurred in 1976, and defendant was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Also spelled "Fallen" in the record.
arrested at his home by Detective James B. Jarden on October 19,
1993, at approximately 8:30 p.m. When arrested, defendant
instructed his wife to contact "his attorney." Later, at the
station house, defendant was advised of his constitutional rights
in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and
repeated to Jarden that he "wanted to wait for his attorney," a
Mr. King, before talking to police. However, while awaiting a
response from King, Jarden began to question defendant relative
to the subject offenses.
At approximately 10:00 p.m., Jarden telephoned King at
defendant's request, and King advised Jarden that "he wasn't
coming . . . to the station and had already told [defendant] not
to answer any of [Jarden's] questions." Jarden related this
conversation to defendant, including King's admonition not to
speak with Jarden, but, nevertheless, resumed his interrogation
of defendant. During the interview, defendant asked "to see" the
victim, Fallon, and Jarden immediately arranged a meeting at the
police station.
Meanwhile, defendant recounted to Jarden incidents involving
himself and Fallon, "similar to what [she] had said," but "things
. . . that she had initiated." In response to Jarden's further
inquiries, defendant explained that he had not discussed Fallon's
conduct with his wife because she was a rape victim, easily upset
by "these kinds of things." Jarden then contacted defendant's
wife to confirm this information and, upon learning that it was
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untrue, confronted defendant with the conflict. Defendant became
"quite upset," "stood up in the interview room, took off his
glasses[,] and made a move [as if] he was going to hit [Jarden]."
Jarden "pushed him in the chest[,] . . . backed him up to a
table, got a wrist lock on him[,] . . . flipped him around on the
table[,] and handcuffed him."
Fallon arrived at the station during this scuffle, and the
officer accompanying her assisted Jarden in restraining
defendant. 2 Fallon was then seated at a desk "across the
way . . . from" defendant, an arrangement which "allowed . . .
them to talk," while Jarden listened "directly outside the
door." 3 During the ensuing "conversation," Fallon sought and
obtained defendant's admission to the subject offenses. Jarden
also participated in the exchange between Fallon and defendant,
specifically asking defendant to verify Fallon's allegations.
I. ADMISSIBILITY OF STATEMENTS MADE TO VICTIM
It is well established that an accused has a Fifth and
Fourteenth Amendment right to counsel during custodial
interrogation. Correll v. Commonwealth, 232 Va. 454, 462, 352
S.E.2d 352, 356, cert. denied, 482 U.S. 931 (1987). Once such
right is invoked, the accused may not be "subject to further
interrogation by the authorities until counsel has been made
2
The record indicates that Fallon arrived at approximately
12:30 a.m.
3
To accommodate defendant, Jarden "took off one of the
cuffs, so [defendant] could have his hands somewhat free . . . ."
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available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police."
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). "If a
confession is obtained in violation of Edwards, it is presumed to
have been the result of an involuntary waiver of Fifth Amendment
rights and, therefore, any evidence obtained as a result thereof
is inadmissible." Pugliese v. Commonwealth, 16 Va. App. 82, 87,
428 S.E.2d 16, 21 (1993) (citing Edwards, 451 U.S. at 487).
"Whether an individual requested counsel is a factual
determination . . . [which] will not be disturbed on appeal
unless clearly erroneous." Id. We similarly defer to the trial
court's factual finding that an accused did not "initiate[] the
discussions which led to his confession," if supported by the
evidence. Correll, 232 Va. at 463, 352 S.E.2d at 357.
Here, the trial court's determination that Jarden violated
defendant's right to counsel during Jarden's initial questioning
is well supported by the record. Moreover, contrary to the
court's related ruling, this police misconduct also tainted
defendant's later statements during the meeting with Fallon.
Jarden, obviously calculating that the confrontation would likely
"'elicit an incriminating response,'" arranged and participated
in the exchange, which was an integral part of a "continued
inquiry" and interrogation of defendant that Jarden was "bound to
cease." 4 Hines v. Commonwealth, 19 Va. App. 218, 221-22, 450
4
Jarden considered "a confession . . . almost a necessity to
go forward with this case."
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S.E.2d 403, 404 (1994) (quoting Rhode Island v. Innis, 446 U.S.
291, 301 (1980)). Thus, defendant's statements resulting from
the Fallon encounter were similarly inadmissible. 5
II. SUFFICIENCY OF EVIDENCE REGARDING DEFENDANT'S AGE
In reviewing a challenge to the sufficiency of the evidence,
we must consider the record in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, and will disturb the judgment of the trial
court only if plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Code § 18.2-370 requires that an accused be "eighteen years
of age or over" at the time of the offense. Fallon testified
that, at the time of the instant offense, defendant was married
and had two children, the oldest of whom was four years old.
Moreover, defendant was present at trial, and his "physical
appearance may be considered" by the court as evidence of his age
at the time of the offense. Jewell v. Commonwealth, 8 Va. App.
353, 356, 382 S.E.2d 259, 261 (1989). Such evidence sufficiently
established that defendant was no less than eighteen years of age
at the time of the offenses.
Accordingly, we reverse the convictions and remand for
further proceedings consistent with this opinion, if the
Commonwealth be so advised.
Reversed and remanded.
5
The Commonwealth's argument that this issue was not before
the trial court is without merit.
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