COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker and Bray
Argued at Norfolk, Virginia
LARRY DONNELL GREEN
OPINION BY
v. Record No. 0581-97-1 JUDGE JOSEPH E. BAKER
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Timothy S. Fisher (G. Ben Pavek, III;
Overman, Cowardin & Martin, P.L.C., on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Larry Donnell Green (appellant) appeals from his bench trial
convictions by the Circuit Court of the City of Newport News
(trial court) for attempted rape, attempted robbery, inanimate
object sexual penetration, capital murder, and two counts of
first degree murder of three women. Appellant entered
conditional pleas of guilty to all charges. Appellant contends
the trial court erroneously failed to suppress inculpatory
statements he made to the police during the investigative stages
preceding his trial. Finding no error, we affirm the judgments.
Renee Wilkes was found dead in her home on December 15,
1994, as a result of smothering. On December 19, 1994,
Detective L. L. Sheppard Mirandized appellant, and appellant made
a voluntary, non-inculpatory statement, which was videotaped.
Eva Gray, appellant's aunt, was found dead in her home on
January 9, 1996, as a result of manual strangulation. On
January 16, 1996, Detective Sheppard asked appellant when he last
saw Gray. Appellant indicated he had last seen his aunt the
previous August, "that he didn't know anything about her death
and that he wasn't going to answer any more questions." Sheppard
asked no further questions at that time.
Helen "Kathy" Mewborn was found dead in her home on
February 5, 1996, as a result of mechanical asphyxia. Detective
Sheppard again contacted appellant, who admitted he had been at
Mewborn's home a few days earlier and agreed to go to the police
station to make a statement.
On February 21, 1996, an attempted murder warrant was issued
for appellant's arrest as a result of the complaint of Dorothy
Graham that appellant had tried to strangle her the previous
night. Detectives Sheppard and Brown found appellant at about
3:30 p.m. and drove him to police headquarters, where they served
him with the arrest warrant and orally advised him of his rights.
Appellant said "he didn't know anything about this incident and
he wasn't going to say anything else unless he had an attorney."
Sheppard then said, "Since you don't want to talk, we will
just take you over to the magistrate" to have the attempted
murder warrant served. Appellant responded, "Attempted murder?
. . . 'She assaulted me. I ought to take out a warrant for her
assaulting me.'" Appellant showed Sheppard some scratches on his
chest. Sheppard then said:
Mr. Green, I gave you this opportunity about
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five minutes ago. You said you didn't know
anything about it, that you wanted an
attorney. Then [appellant said], 'Attempted
murder? You're talking about my life.' I
said, I understand that, but we gave you that
opportunity to talk to us about it and you
didn't wish to.
Appellant said he wanted to tell Sheppard what happened.
Sheppard "again . . . told [appellant] that he requested an
attorney and [that Sheppard] didn't want to talk to him again
[but] . . . [appellant] insisted that he wanted to talk . . . ."
Sheppard told appellant he was going to re-advise him of his
rights and have him put on tape that he requested an attorney and
now was initiating this conversation to give a statement in
reference to the incident involving Graham. After Sheppard did
these things, appellant made a non-inculpatory statement about
the incident with Graham, and Sheppard turned off the tape
recorder at about 4:00 p.m.
Due to the proximity of the Graham incident to the Gray
murder scene and the similarities of the Graham incident to all
three murders, Sheppard attempted to question appellant about
those murders. Sheppard testified as follows:
[Appellant] was silent. He wasn't real
vocal. He told me that I had already spoke
[sic] with him before about Rene[e] Wilkes
and that he didn't have anything more to say
than what he had told me prior, and if I
didn't recall what [appellant] had told me,
then to go back and review the tape that I
had gotten from him on December the 19th of
1994.
On further questioning, appellant denied any involvement in the
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murders of Gray and Mewborn, but admitted he had a cocaine
problem. Sheppard testified as follows:
And then [appellant] stated that if I
thought that he wanted to confess to some
things that he didn't do, that I might as
well buckle up for the long ride[, and] . . .
he turned his chair away from me. . . . He
turned all the way away from me and put his
foot on the wall and leaned back in his chair
and just closed his eyes.
. . . . I continued to ask [appellant]
about those three murders. . . . I talked to
him for about two and a half hours, and
[appellant] didn't respond. Several times I
had to just ask him was he listening . . . to
make sure that [appellant] wasn't asleep or
anything.
Sheppard did not tape that session and made no notes because
appellant said nothing of substance.
At about 6:30 p.m., Sheppard left the interview room and
told Detective Brown that appellant was not saying anything.
Brown went into the interview room, came out fifteen to twenty
minutes later and told Sheppard that appellant wanted to talk to
him. Sheppard went back into the interview room and, when he
asked appellant about Gray, appellant admitted he had last seen
her "when it was snowing" rather than in August, as he previously
had stated. Sheppard said the cocaine appellant was using
probably caused him to lose control and that appellant should
think about who might die next. Appellant began to cry and asked
to call his mother. Sheppard left the room and returned about
twenty minutes later. He "continued to ask [appellant] about the
murders." Appellant was silent but he was responsive and was
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looking at Sheppard. Sheppard, tired and believing that
appellant had said all he was going to say for the time being,
terminated the interview.
As Sheppard prepared to take appellant across the street to
the jail, appellant started sobbing. When Sheppard asked what
was wrong, appellant said he needed to talk and agreed to go back
to the interview room with Sheppard. Appellant again asked to
call his mother. After appellant finished the conversation with
his mother, Sheppard asked appellant if he was ready to talk.
Sheppard testified appellant responded as follows:
[Appellant] said yes, he's going to tell
me what happened. At that time I told
[appellant] . . . I felt it was appropriate
for me to re-advise him of his rights. Once
again [appellant] acknowledged that I had
already advised him of his rights, that he
understood his rights, but I told him that I
still felt that it would be appropriate.
At that time I proceeded to advise
[appellant] of his rights once again, and he
told me he understood his rights. When . . .
I began to question him about the three
murders once more, . . . [appellant] [held]
up his hand and [was silent] . . . .
Sheppard then asked appellant if he committed each of the three
murders. Appellant said he did and described the details of each
one. Sheppard asked appellant if he would make a tape recorded
statement, and appellant said he would. However, when Sheppard
returned with a tape recorder, appellant said he had had enough
and did not want to talk anymore.
Appellant moved to suppress his confession 1 as violative of
1
The charge of attempted murder of Dorothy Graham was not
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his Fifth Amendment right to silence. 2 The trial court denied
the motion and subsequently issued a letter opinion and order to
that effect. The trial court noted from the bench that
appellant's actions were ambiguous at best, that appellant
reinitiated the interrogation, and that it appeared appellant did
so "more [because of] . . . his discussion with his mother than
anything."
Appellant concedes he was fully Mirandized and waived his
right to remain silent in order to make a statement about the
Graham incident. However, appellant argues that, after the
Graham interrogation was complete, Sheppard attempted to question
him about the three murders, despite appellant's clear indication
that he did not want to answer further questions. That assertion
is premised on the following statements and conduct: appellant's
statement to Sheppard that appellant "didn't have anything more
to say" about victim Wilkes and appellant's statement that if
Sheppard wanted appellant "to confess to some things that he
didn't do," Sheppard "might as well buckle up for the long ride,"
accompanied by appellant's turning his chair away, putting his
foot on the wall, leaning back in his chair, and closing his
tried in these proceedings, and, therefore, appellant's motion to
suppress did not apply to his statement concerning that incident.
2
An accused also may refuse to answer questions by asserting
his right to counsel under the Sixth Amendment. See, e.g.,
Arizona v. Roberson, 486 U.S. 675 (1988). Because appellant has
not alleged a Sixth Amendment violation, we review this appeal
solely in terms of appellant's Fifth Amendment rights.
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eyes.
On appeal from a denial of a motion to suppress, the burden
is upon the defendant to show the trial judge's ruling, when the
evidence is viewed most favorably to the Commonwealth,
constituted reversible error. See Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731 (1989). Here, appellant has not
met his burden.
For a confession given during custodial interrogation to be
admissible, the Commonwealth must show that the accused was
apprised of his right to remain silent and that he knowingly,
intelligently, and voluntarily waived that right. See Riddick v.
Commonwealth, 22 Va. App. 136, 145, 468 S.E.2d 135, 139 (1996).
Where a person is Mirandized and gives a knowing and intelligent
waiver of his right to remain silent, "such waiver will be
presumed to continue in effect throughout subsequent custodial
interrogations until the suspect manifests, in some way which
would be apparent to a reasonable person, his desire to revoke
it." Washington v. Commonwealth, 228 Va. 535, 548-49, 323 S.E.2d
577, 586 (1984). Although the issue of voluntariness is a
question of law subject to the court's independent review of the
entire record, "the trial court's subsidiary factual findings,
upon which voluntariness is determined, . . . will not be
disturbed on appeal unless plainly wrong." Shell v.
Commonwealth, 11 Va. App. 247, 252, 397 S.E.2d 673, 676 (1990).
The Virginia Supreme Court has declared that a clear and
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unambiguous assertion of the right to remain silent or to counsel
is necessary before authorities are required to discontinue an
interrogation. See Midkiff v. Commonwealth, 250 Va. 262, 266,
267, 462 S.E.2d 112, 115 (1995); Mueller v. Commonwealth, 244 Va.
386, 396-97, 422 S.E.2d 380, 387 (1992). Expressions such as,
"Do you think I need an attorney?", id. at 396, 422 S.E.2d at
387; "Do I have to talk about it now?", Akers v. Commonwealth,
216 Va. 40, 45-46, 216 S.E.2d 28, 31-32 (1975); "I don't got to
answer that," and "I'm scared to say anything without talking to
a lawyer," Midkiff, 250 Va. at 267-68, 462 S.E.2d at 115-16; "I
don't think that I should say anything," Burket v. Commonwealth,
248 Va. 596, 609-10, 450 S.E.2d 124, 131-32 (1994); and "Maybe I
should talk to a lawyer," Davis v. United States, 512 U.S. 452,
462 (1994), all have been held not to be clear and unambiguous
invocations of the right to silence or to counsel.
Here, it is equally obvious that appellant's words and acts
did not constitute a clear and unambiguous invocation of his
right to silence. The record clearly discloses that appellant
was informed of his Miranda rights and knowingly, intelligently,
and voluntarily waived his right to silence and made a statement
about the Graham attempted murder charge. When appellant
initially invoked his right to silence, Sheppard scrupulously
honored that invocation. When appellant started to talk after
asserting that right, Sheppard reminded him that he had invoked
his right to remain silent, and further questioning occurred only
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after appellant voluntarily expressed his desire to make further
statements. Indeed, appellant does not challenge the
voluntariness of his statements regarding the Graham attempted
murder charge; he concedes that these statements were voluntary
and were made after a waiver of his earlier invocation of his
rights to counsel and silence.
Appellant contends his subsequent statements and actions
constituted a second invocation of his right to silence. Under
the principles set out above, we disagree. First, appellant's
statement that he "didn't have anything more to say" about the
murder of Wilkes was not a clear and unambiguous invocation of
his right to silence. See, e.g., Midkiff, 250 Va. at 267-68, 462
S.E.2d at 115-16; see also United States v. Banks, 78 F.3d 1190,
1197 (7th Cir. 1996) (holding that defendant did not invoke right
to remain silent with the statement, "I don't got nothing to
say"), cert. denied, 117 S. Ct. 486 (1996).
Similarly, appellant's statement to the effect that he would
not confess to something he did not do and that Sheppard should
"buckle up for the long ride" did not constitute a clear and
unambiguous assertion of the right to silence, even where
accompanied by appellant's turning his chair away, closing his
eyes and remaining silent for two-and-one-half hours. See
Midkiff, 250 Va. at 268, 462 S.E.2d at 116 (noting that
"[n]othing within [the appellant's] statement connotes a desire
to cease all questioning"); see also State v. Perkins, 364 N.W.2d
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20, 23-24 (Neb. 1985) (holding that actions of accused in leaning
chair against wall, closing eyes and crossing arms for half an
hour of approximately one-and-one-half-hour interrogation did not
constitute invocation of right to silence following earlier
waiver). Moreover, subsequent to those acts and before appellant
confessed to the crimes, Sheppard again advised appellant of his
right to remain silent and to have an attorney present.
Appellant acknowledged that he was aware of those rights and
voluntarily confessed to the crimes.
We cannot say the trial court was plainly wrong;
accordingly, the judgments of the trial court are affirmed.
Affirmed.
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