Timbers v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia

KELLY YVETTE TIMBERS
OPINION BY
v. Record No. 1702-97-2 JUDGE ROSEMARIE ANNUNZIATA
AUGUST 18, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge
Diana H. Wheeler for appellant.

Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Kelly Yvette Timbers (appellant) was convicted of two counts

of forgery. In this appeal, she challenges the trial court's

admission into evidence of statements she made to a deputy

sheriff while she was incarcerated in a Madison County holding

cell. She contends the statements were obtained in violation of
Miranda v. Arizona, 384 U.S. 436 (1966), and that the statements

were the unlawful fruit of an earlier detention in violation of

the Fourth Amendment. She also contends the evidence was

insufficient to support her convictions for forgery. We hold

that law enforcement authorities violated appellant's Miranda

rights to obtain her statement, and we reverse her convictions

for forgery.

On November 15, 1996, law enforcement authorities executed a

search warrant at an apartment complex in Madison County. In

addition to searching appellant's apartment, law enforcement
authorities searched the apartment of John Johnson. Johnson

owned a blue Lincoln Town Car which he sometimes loaned out in

trade for crack cocaine. During the execution of the search

warrant, an officer saw the blue Lincoln enter the area of the

apartment building.

The Lincoln then left the area of the apartment building and

drove away. An officer of the Virginia State Police stopped the

Lincoln because he was instructed to do so by an undisclosed

person on his radio. During a search of the Lincoln, law

enforcement officers found a small packet of cocaine in the car,

and a Madison County deputy arrested appellant, who was the

driver, and the other occupant of the car.
At the sheriff's office, Deputy Robert MacFall asked

appellant for identifying information, including her name, date

of birth, and Social Security number. Appellant told MacFall

that her name was Gwendolyn Ann Timbers. After appellant was

fingerprinted, she signed the fingerprint card and a Central

Criminal Records Exchange (CCRE) form with the name, "Gwendy

Timbers." MacFall prepared and served appellant with a warrant

for possession of cocaine.

Between a half-hour and an hour after appellant's booking,

while appellant was in the holding cell at the sheriff's office,

a woman came into the lobby of the sheriff's office and asked to

give MacFall an item of clothing for Kelly Timbers. MacFall

testified that, after this exchange, he immediately went "to the

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holding cell where we had Ms. Timbers and questioned her as to

what her real identity was." When asked to specify his actions,

MacFall testified as follows: "I went to the holding cell door,

I called her by the name of Kelly Timbers and she looked at me.

And I told her if she was Kelly Timbers, that she needed to come

forth with that information." MacFall testified that he did not

directly ask appellant if her name was Kelly.

Appellant acknowledged that she was actually Kelly Timbers.

Appellant was not advised of her Miranda rights at any point

prior to this acknowledgement. The deputy charged appellant with

one count of forgery for the fingerprint card, one count of

forgery for the CCRE card, and one count of giving false

information to a police officer, in addition to possession of

cocaine.

Appellant moved to suppress the cocaine on the basis that no

reasonable suspicion supported the stop of the Lincoln, and moved

to suppress the fingerprint cards and the statement she made in

the holding cell that she was in fact Kelly Timbers on the basis

that these statements were fruits of the unlawful stop. After a

hearing, the trial court granted the motion to suppress the

cocaine on the basis that no evidence established that the person

who ordered the Lincoln stopped had reasonable suspicion to

justify the stop. The court denied the motion to suppress the

fingerprint cards and statement, reasoning that "there is a new

act occurring here and this is not a fruit of the poisonous

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tree."

On the basis of evidence introduced in the first suppression

hearing, appellant filed a motion to suppress her statements to

the deputy on the basis that the statements were obtained in

violation of her Miranda rights. At a hearing on appellant's

second motion, appellant testified that MacFall approached the

holding cell where she was incarcerated, asked if she was Kelly

Timbers, and told her that he knew she was Kelly Timbers, so she

might as well admit it. She testified that MacFall left for five

to ten minutes, then returned and told her that someone had come

to the office and said that appellant's name was Kelly.

According to appellant, MacFall told her that someone was going

to retrieve a picture of appellant, so appellant should admit

that her name was Kelly. Appellant testified that MacFall left

again, returned, and told her that they would not press charges

if she admitted her name was Kelly. Appellant testified that she

admitted her identity at this point.
The court denied appellant's motion to suppress her

statements. The court found MacFall's testimony to be credible

and found that the sequence of events was not as appellant

described. The court specifically found as follows: "Certainly

the defendant was in custody, but what occurred was not

interrogation." After a trial without a jury, the court found

appellant not guilty of providing false information to a police

officer, but found her guilty of both counts of forgery.

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 I.

Miranda

Appellant contends her statement in the holding cell that

she was in fact Kelly Timbers was obtained in violation of

Miranda v. Arizona, 384 U.S. 436 (1966). We are bound by the

trial court's findings of historical fact unless those findings

are plainly wrong or without evidence to support them. See,

e.g., 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 (1996)). We review de novo questions of law and

the trial court's application of defined legal standards to the

particular facts of a case. See, e.g., Quinn v. Commonwealth, 25

Va. App. 702, 712-13, 492 S.E.2d 470, 475-76 (1997) (citing

cases) (holding that whether a person has invoked her Miranda

right to counsel and whether she has waived that right are

reviewed de novo); McGee, 25 Va. App. at 198, 487 S.E.2d at 261

(1997) (citing cases) (holding that issue of whether seizure

occurred is reviewed de novo); Shears v. Commonwealth, 23 Va.
App. 394, 398, 477 S.E.2d 309, 311 (1996) (citing Ornelas, 517

U.S. at 699) (holding that determinations of reasonable suspicion

and probable cause are reviewed de novo); Watson v. Commonwealth,

19 Va. App. 659, 663, 454 S.E.2d 358, 361 (1995) (citing Wilson

v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992)

(holding that issue of whether a seizure continues or has abated

is reviewed de novo).

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 "[T]he prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation

of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against

self-incrimination," commonly known as Miranda warnings.

Miranda, 384 U.S. at 444. "Failure to give Miranda warnings

prior to custodial interrogation requires suppression of any

illegally obtained statements." Blain v. Commonwealth, 7 Va.

App. 10, 13, 371 S.E.2d 838, 840 (1988) (citing Miranda, 384 U.S.
at 479). "Before Miranda is triggered, however, an individual

must be both in 'custody' and subjected to 'interrogation.'" Id.

The Commonwealth concedes that appellant was not

administered Miranda warnings at any point prior to her

statement. Similarly, the Commonwealth conceded in the trial

court that appellant was in custody at the time of the statement

and is bound by that concession here. See, e.g., Johnson v.

Commonwealth, 26 Va. App. 674, 683, 496 S.E.2d 143, 147 (1998)

(citing Manns v. Commonwealth, 13 Va. App. 677, 679-80, 414
S.E.2d 613, 615 (1992)). Initially, we must determine whether

appellant was subjected to interrogation, i.e., "express

questioning or its functional equivalent." See Rhode Island v.

Innis, 446 U.S. 291, 300-01 (1980). The Commonwealth also argues

that MacFall's statements to appellant fall under a "routine

booking question" exception to Miranda, and that, even if

appellant's statements were obtained in violation of Miranda, the

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exclusionary rule should not apply because the Commonwealth would

have inevitably discovered the evidence. Finally, the

Commonwealth argues that the admission of appellant's statements

was harmless error.

A.

Functional Equivalent of Questioning

After hearing evidence that appellant's name was Kelly

Timbers rather than Gwendolyn Timbers, MacFall called appellant

by the name Kelly Timbers and told her that, if she was Kelly

Timbers, she needed to come forth with that information. MacFall

did not expressly question appellant. For Miranda purposes,

however, interrogation also includes the functional equivalent of

questioning. Innis, 446 U.S. at 300-01.

The Supreme Court has defined the functional equivalent of

questioning as "any words or actions on the part of the police

. . . that the police should know are reasonably likely to elicit

an incriminating response from the suspect." Innis, 446 U.S. at

301; see also Pennsylvania v. Muniz, 496 U.S. 582, 600-01 (1990)
(citing Innis, 446 U.S. at 301); Arizona v. Mauro, 481 U.S. 520,

526-27 (1987) (citing Innis, 446 U.S. at 301). The Supreme Court

indicated that whether a practice "is designed to elicit an

incriminating response" is a factor in determining whether the

practice is "reasonably likely" to elicit an incriminating

response. Innis, 446 U.S. at 301-02 n.7.

Virginia courts have formulated and applied the Innis

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standard in several ways. In applying the Innis standard,

Virginia courts have discussed (1) the subjective intent of the

police, see, e.g., Wright v. Commonwealth, 2 Va. App. 743, 746,

348 S.E.2d 9, 12 (1986) (noting "the total absence of any

evidence that the questioning here was intended or designed to

produce an incriminating response"), (2) the objective likelihood

of self-incrimination, see, e.g., Riddick v. Commonwealth, 22 Va.

App. 136, 145, 468 S.E.2d 135, 139 (1996) (citing Innis, 446 U.S.

at 301) (explaining that "police activities reasonably incidental

to arrest and custody . . . are unlikely to elicit an

'incriminating response'"), and (3) an objective evaluation of

the manifestation of the officer's intent. See, e.g., Blain, 7

Va. App. at 15, 371 S.E.2d at 841 (interpreting the Innis

standard to require "a determination whether an objective

observer would view an officer's words or actions as designed to

elicit an incriminating response").

An interpretation of the "reasonably likely to elicit an

incriminating response" test as purely objective would require a

case-by-case evaluation of how likely a defendant is to respond

to a given statement by police. See Wayne R. LaFave & Jerold H.

Israel, Criminal Procedure § 6.7(a) (1984). A requirement of

actual proof that "questioning . . . was intended or designed to

produce an incriminating response," Wright, 2 Va. App. at 746,

348 S.E.2d at 12, on the other hand, is contrary to the Supreme

Court's admonition that the definition of interrogation "focuses

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primarily upon the perceptions of the suspect, rather than the

intent of the police." Innis, 446 U.S. at 301.

Although Virginia courts have articulated the requirements

of the Innis standard in several ways, we are bound by the

interpretation of Innis outlined in Blain, 7 Va. App. at 15, 371

S.E.2d at 841. See Johnson v. Commonwealth, 252 Va. 425, 430,

478 S.E.2d 539, 541 (1996) (holding that a decision by one panel

of this Court is binding on a subsequent panel unless overruled

by this Court sitting en banc or the Supreme Court of Virginia).

In Blain, we held: "We interpret the Innis standard as

requiring a determination of whether an objective observer would

view an officer's words or actions as designed to elicit an

incriminating response." 7 Va. App. at 15, 371 S.E.2d at 841.

Although other Virginia cases have applied the Innis test as

either purely subjective or purely objective, Blain contains the

only square holding on the issue. The Blain interpretation is

also "consistent with the result reached in Innis, 'will not be

difficult to apply' because it is an objective test which does

not require a determination of the actual perception of the

suspect, but yet is 'fully responsive to the concerns of the
Miranda decision' because it identified the situation in which

the subject 'will experience the "functional equivalent" of

direct questioning' by concluding that the police are trying to

get him to make an incriminating response." LaFave & Israel,

supra, at § 6.7(a) (quoting Welsh S. White, Interrogation Without

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Questions: Rhode Island v. Innis and United States v. Henry, 78

Mich. L. Rev. 1209, 1236 (1980)).

Applying this standard, we hold that MacFall's statements to

appellant constituted interrogation. After learning that

appellant's real name was probably Kelly Timbers rather than

Gwendolyn Timbers, MacFall went to the holding cell door and

called appellant by the name Kelly Timbers. In the first

testimony he gave on the issue, MacFall described this exchange

as "question[ing] her as to what her real identity was." After

appellant looked at MacFall, MacFall told her that if she was

Kelly Timbers, she needed to admit that fact. MacFall testified

that in response to these statements, appellant "came clean to me

and said that she was actually Kelly Yvette Timbers." A

reasonable observer would view MacFall's statements as designed

to elicit appellant's incriminating statement that she was, in

fact, Kelly Timbers.
B.

Routine Booking Question Exception

The Commonwealth argues that Miranda warnings were
unnecessary because MacFall's interrogation of appellant was an

attempt to obtain accurate booking information pursuant to arrest

and custody. In Innis, the Supreme Court of the United States

defined the functional equivalent of interrogation as "any words

or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are

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reasonably likely to elicit an incriminating response from the

suspect." Innis, 446 U.S. at 301.

Applying this definition, we held in Wright, 2 Va. App. at

746, 348 S.E.2d at 12, that the police need not administer

Miranda warnings prior to obtaining biographical information for

a fingerprint card. In so holding, we reasoned as follows:
Under the facts presented here, we believe
that [the defendant's] statement concerning
his address [made on a fingerprint card] was
obtained as a result of conduct normally
attendant to arrest and custody. We also
note the total absence of any evidence that
the questioning here was intended or designed
to produce an incriminating response. For
these reasons, Miranda warnings were
unnecessary.

Id. As previously discussed, we adopted an interpretation of the

Innis standard in Blain, 7 Va. App. at 15, 371 S.E.2d at 841,

which governs our inquiry in this case: "whether an objective

observer would view an officer's words or actions as designed to

elicit an incriminating response."

In Muniz, 496 U.S. at 601 (plurality opinion) (quoting Brief

of the United States as Amicus Curiae 12 (quoting United States
v. Horton, 873 F.2d 180, 181 n.2 (8th Cir. 1989))), a

four-justice plurality of the Supreme Court 1 reiterated the Innis
1
Four justices found it "unnecessary to determine whether the
questions fall within the 'routine booking question' exception to
Miranda" recognized by the plurality. Id. at 608 (Rehnquist,
C.J., concurring in part, concurring in the result in part, and
dissenting in part). The ninth justice rejected the "routine
booking question" exception on the basis that the exception
"would necessitate difficult, time-consuming litigation over
whether particular questions asked during booking are 'routine,'
whether they are necessary to secure biographical information,

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"reasonably likely to elicit an incriminating response" standard,

but wrote that the answers to biographical questions asked during

booking "fall within a 'routine booking question' exception which

exempts from Miranda's coverage questions to secure the

'"biographical data necessary to complete booking or pretrial

services."'" In a footnote, the plurality wrote: "As amicus

United States explains, 'recognizing a "booking exception" to

Miranda does not mean, of course, that any question asked during

the booking process falls within that exception. Without

obtaining a waiver of the suspect's Miranda rights, the police
may not ask questions, even during booking, that are designed to

elicit incriminatory admissions.'" Id. at 602 n.14 (plurality

opinion) (quoting Brief for the United States as Amicus Curiae).

No Virginia court has addressed the viability or scope of a

routine booking question exception in Virginia subsequent to

Muniz. Assuming without deciding that a routine booking question

exception exists in Virginia, MacFall's interrogation of

appellant does not fall within the exception. Most importantly,

MacFall did not confront appellant in the holding cell to clarify

an ambiguity in her statements made during booking; rather, he

sought to investigate what he believed to be false information.

In addition, MacFall's statement that if appellant had given a

whether that information is itself necessary for recordkeeping
purposes, and whether the questions are--despite their routine
nature--designed to elicit incriminating testimony." Id. at 608
(Marshall, J., concurring in part and dissenting in part).

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false name, she needed to come forward with that information, can

hardly be considered a routine booking question. Finally,

MacFall's interrogation of appellant does not fall under a

routine booking question because, under the standard in Blain, 7

Va. App. at 15, 371 S.E.2d at 841, a reasonable observer would

view MacFall's statements as designed to elicit appellant's

incriminating statement that she was, in fact, Kelly Timbers.

C.
Inevitable Discovery

The Commonwealth argues that, notwithstanding a violation of

Miranda, we should not apply the exclusionary rule in this case

because the police inevitably would have discovered appellant's

true identity. In Nix v. Williams, 467 U.S. 431, 447 (1984), the

Supreme Court of the United States held that "if the government

can prove that the evidence [obtained by illegal means] would

have been obtained inevitably and, therefore, would have been

admitted regardless of any overreaching by the police, there is

no rational basis to keep that evidence from the jury." We have

explained the requirements of the inevitable discovery doctrine:
the inevitable discovery exception requires
that the prosecution show: "(1) a reasonable
probability that the evidence in question
would have been discovered by lawful means
but for the police misconduct; (2) that the
leads making the discovery inevitable were
possessed by the police at the time of the
misconduct, and (3) that the police also
prior to the misconduct were actively
pursuing the alternative line of
investigation."

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Walls v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185

(1986) (quoting United States v. Cherry, 759 F.2d 1196, 1204 (5th

Cir. 1985)).

Specifically, the Commonwealth argues that because the

police had appellant's fingerprints, they would have inevitably

discovered appellant's true identity. No Virginia court has

applied the inevitable discovery doctrine outside of the

derivative "fruit of the poisonous tree" context. Furthermore,

no Virginia court has applied the inevitable discovery doctrine

to the suppression of a statement obtained in violation of
Miranda. See Keeter v. Commonwealth, 222 Va. 134, 140 & n.2, 278

S.E.2d 841, 845 & n.2 (1981) (noting in dicta that evidence

seized after assumed illegal entry was not "fruit of the

poisonous tree" because search warrant was in process of

preparation); Warlick v. Commonwealth, 215 Va. 263, 266, 208

S.E.2d 746, 748 (1974) (explaining that inevitable discovery is

an exception to the "fruit of the poisonous tree" doctrine);
Commonwealth v. Ealy, 12 Va. App. 744, 758, 407 S.E.2d 681, 690

(1991) (holding that consent to search a garage was fruit of

illegal search, and rejecting claim that police would have

inevitably searched the garage); Walls, 2 Va. App. at 656-57, 347

S.E.2d at 185 (holding that consent to search a trailer was fruit

of illegal entry, and rejecting claim that police would have

inevitably searched the trailer).

Assuming without deciding that inevitable discovery analysis

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applies in the context of a statement directly obtained in

violation of Miranda, the Commonwealth has not carried its burden

to prove the three Walls factors. The Commonwealth did not argue

the inevitable discovery doctrine to the trial court. In

addition, the Commonwealth did not present evidence at the

hearing that the police were actively pursuing any alternative

line of investigation into appellant's identity. The court

specifically found credible MacFall's denial that he had told

appellant he had sent an officer to Culpeper, Virginia, to obtain

a photograph of her; this action was the only alternative line of

investigation mentioned. Most importantly, the Commonwealth

never presented any evidence that the police fingerprint cards

would have established appellant's identity. We will not exempt

the violation of appellant's Miranda rights from the exclusionary
rule under these circumstances.

D.

Harmless Error

Finally, the Commonwealth argues that the Miranda error, if
any, was harmless. A violation of Miranda is subject to review

for harmless error. Pearson v. Commonwealth, 221 Va. 936, 945,

275 S.E.2d 893, 899 (1981). In Virginia, constitutional error

"is harmless only when the reviewing court is 'able to declare a

belief that it was harmless beyond a reasonable doubt.'"

Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910,

911 (1991) (en banc) (quoting Chapman v. California, 386 U.S. 18,

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24 (1967)).

We cannot say the trial court's error in admitting

appellant's admission that she was Kelly Timbers rather than

Gwendolyn Timbers was harmless. Appellant's admission to MacFall

was the most important evidence admitted at appellant's trial for

forgery on the issue of whether appellant's signature as Gwendy

Timbers was, in fact, false. The only other evidence admitted at

trial on the issue was MacFall's testimony that a person came

into the sheriff's office and asked for Kelly Timbers. Without

testimony as to appellant's admission, there would have been

little evidence of the falsity of appellant's signature. Under

these circumstances, we cannot declare a belief that the error,

if any, was harmless beyond a reasonable doubt. Lavinder, 12 Va.

App. at 1005, 407 S.E.2d at 911 (citing Chapman, 386 U.S. at 24).

Therefore, we reverse appellant's convictions because of the

violation of her Miranda rights. Given our disposition of this

issue, we need not reach appellant's argument that her statement

to MacFall was the fruit of her illegal arrest. Notwithstanding

the fact that we reverse for a Miranda violation, however, we
address appellant's sufficiency of the evidence argument because

the Commonwealth would be barred on double jeopardy grounds from

retrying appellant if we were to reverse for insufficiency of the

evidence. See, e.g., Burks v. United States, 437 U.S. 1, 18

(1978).

II.

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 Sufficiency of the Evidence

Appellant argues the evidence was insufficient to support

her convictions for forgery because no evidence at trial proved

that "Gwendy Timbers" was not her usual signature. "When the

sufficiency of the evidence is challenged on appeal, we must

determine whether the evidence, viewed in the light most

favorable to the Commonwealth, and the reasonable inferences

fairly deducible from that evidence, prove every essential

element of the offense beyond a reasonable doubt." Stevenson v.

Commonwealth, 27 Va. App. 453, 459, 499 S.E.2d 580, 583 (1998)

(citing cases), reh'g en banc granted, __ Va. App. __, __ S.E.2d

__ (July 21, 1998). "We will not disturb a jury's verdict unless

it is plainly wrong or without evidence to support it." Id.

(citing George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12,

20 (1991)).

Code § 18.2-172, codifying the common law crime of forgery,

provides that "[i]f any person forge any writing, . . . to the

prejudice of another's right, . . . [she] shall be guilty of a

Class 5 felony." Under the common law, forgery "is defined as

'the false making or materially altering with intent to defraud,

or any writing which, if genuine, might apparently be of legal

efficacy, or the foundation of legal liability.'" Fitzgerald v.

Commonwealth, 227 Va. 171, 173-74, 313 S.E.2d 394, 395 (1984)

(quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d

261, 263 (1964)).

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 Essentially, appellant argues that the evidence was

insufficient to prove that her signature, "Gwendy Timbers," was

false. We hold that the evidence was sufficient to support an

inference that appellant's signature was false.

While being fingerprinted, appellant told MacFall that her

name was Gwendolyn Ann Timbers. Appellant signed the fingerprint

card bearing the name Gwendolyn Ann Timbers with the signature,

"Gwendy Timbers." The trial court was entitled to reasonably

infer that "Gwendy" was a short form of "Gwendolyn." A woman

brought clothing for appellant while appellant was incarcerated

and referred to appellant as "Kelly." The trial court was

entitled to infer from this evidence that appellant was commonly

known as "Kelly" rather than "Gwendy." Finally, when confronted

by MacFall, appellant admitted she was Kelly Timbers and not

Gwendolyn Timbers. Cf. Lockhart v. Nelson, 488 U.S. 33, 41

(1988) (holding that reviewing court should consider all admitted

evidence, including illegally admitted evidence, in assessing the

sufficiency of the evidence to support a conviction). Given this

evidence, the court was entitled to reasonably infer that

appellant falsely signed the name "Gwendy" in conjunction with

her provision of the false name "Gwendolyn." See Reid v.

Commonwealth, 16 Va. App. 468, 471-72, 431 S.E.2d 63, 65 (1993)

(approving inference that defendant signed false name). The

evidence, along with the reasonable inferences deducible

therefrom, was sufficient to support appellant's convictions.

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 We reverse and remand for a new trial, if the Commonwealth

be so advised.

Reversed and remanded.

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