McCULLOUGH, Judge.
Jamie Aaron Kuhne challenges his voluntary manslaughter conviction, arguing that certain statements he made to law enforcement should have been excluded as the fruit of an illegal interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). We assume, without deciding, that appellant was in custody, and we hold that the statements were admissible under Seibert. We, therefore, affirm the judgment of the trial court.
On December 11, 2009, around 7:20 a.m., Kuhne walked into the lobby of a Herndon police station and told the 911 supervisor, Tammy Farley, that he "need[ed] to be arrested for [his] actions." He then began to weep. He handed Farley a handwritten note. Farley informed Sergeant Darcy Nidell of what had just happened. Nidell, in turn, informed Sergeant Dennis Royal. As Royal walked toward the lobby, Farley handed
The note states in relevant part:
The note was not signed.
Sergeant Michael Berg and Sergeant Nidell arrived in the lobby and introduced themselves to appellant as police officers. Nidell had not seen the note. Nidell said, "I understand you are here and you want to talk about a crime" or "turn yourself in for a crime" or words to that effect. Sergeant Nidell asked appellant where he resided, to determine whether the Herndon police officers had jurisdiction over the case. Berg asked appellant where his wife was, and he responded "in a bag" and provided an address in the Town of Herndon. Berg then asked appellant to put his hands on top of his head so he could be patted down for weapons. Appellant complied, and he was patted down. Berg also took possession of appellant's wallet, car keys, and some papers.
Berg then escorted appellant out of the lobby, through a door, and into a hallway of the police station. This door is secured electronically and opens with a fob. At the end of a hallway that spans 50 to 75 feet, Berg opened a door with a pass key, led appellant into a foyer, and then through a second door that also opens with a pass key and into the interview area. In the interview room, appellant was asked to remove his shoes and lift his feet to ensure that nothing was hidden in the shoes. Appellant complied, and his shoes were returned to him. Appellant was not handcuffed or touched, aside from the initial pat down and the examination of his feet. Berg was not armed. Appellant was seated in an interview room with an open door. Sergeant Berg placed appellant's wallet, keys, scarf, and jacket on a bench in front of the interview room. The interview room is about 10 feet by 12 feet, with a table and a chair. Berg told appellant something like "we're going to have you sit and we will get somebody back to talk to you." Sergeant Nidell found some paper towels and gave them to appellant as he waited for Sergeant Royal.
Approximately 20 minutes after Sergeants Berg and Nidell first encountered appellant in the lobby, Sergeant Royal arrived in the interview room. Royal first asked some preliminary questions, such as appellant's name, date of birth, and address, and whether he has any medical issues, such as diabetes. Royal next asked appellant if he had written the note. Appellant stated that he had. Royal then issued Miranda warnings to appellant. Appellant also signed a written form waiving his Fifth Amendment rights. Royal proceeded to question appellant. The interview lasted about an hour.
In the interview, appellant explained that he was in the process of separating from his
The videotaped interview is part of the record. It depicts a distraught appellant unburdening himself to Sergeant Royal. Sergeant Royal was gentle and compassionate in his demeanor throughout the interview. At the conclusion of the interview, appellant was arrested and handcuffed.
Police arrived that morning at the address mentioned in the note. They found Zheng's body in a large suitcase on the balcony.
Kuhne was charged with the murder of his wife. Prior to trial, he filed a motion to suppress his statement to the police, arguing that it was obtained in violation of his Miranda rights. At the hearing, Sergeant Royal stated that he was familiar with the deliberate "two-step" interview practice — one in which the police deliberately omit Miranda warnings, obtain incriminating statements, and then prod a suspect to confess anew following Miranda warnings — but he testified that the Herndon Police Department had never used that practice and that he never had used it. Sergeant Nidell stated that she had only recently become familiar with the two-step interrogation procedure. She testified that "[i]t's not anything that we practice and I've never seen it practiced or an interview handled that way." Finally, Sergeant Berg stated that he did not know what the two-step interrogation was until defense counsel explained it to him shortly before trial. Berg stated that to his knowledge, this practice had never been employed in his 24 years with the Herndon Police Department.
The trial court denied the suppression motion, concluding that appellant was not in custody. The court further held that, even if he had been in custody, the actions of the police did not implicate the decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).
At the conclusion of a jury trial, appellant was convicted of voluntary manslaughter and sentenced to serve seven years in the penitentiary.
Appellant contends that the trial court erred in refusing to suppress his statement to the police. First, he argues that he was in custody for Miranda purposes, and, therefore, any statements he made prior to those warnings must be suppressed. Second, he contends that this Court should follow the plurality decision of Seibert authored by Justice Souter, 542 U.S. at 604, 124 S.Ct. at 2605-06, and exclude all of appellant's statements to the police, including those that occurred after he was given Miranda warnings. We will assume, without deciding, for purposes of this opinion, that appellant was in custody and, therefore, appellant should have been issued Miranda warnings from the outset of the interrogation. Nevertheless, the concurring opinion by Justice Kennedy in Seibert, which we adopt as constituting the narrowest ground, establishes that the statements appellant made after receiving Miranda warnings were admissible.
On appeal, the burden rests with appellant to show that the denial of his suppression motion constituted reversible error. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). The reviewing court is bound by the trial court's findings of historical fact unless plainly wrong or without evidence to support them, and "must give deference to the inferences that may be drawn from those factual findings." Commonwealth v. Hilliard, 270 Va. 42, 49-50, 613 S.E.2d 579, 584 (2005). The trial court's determination that the provision of Miranda warnings cured actual, or, in this instance, assumed, constitutional violations raised by the earlier police interrogation is a legal determination, subject to de novo review by
In 1966, the United States Supreme Court, concerned about "police violence and the `third degree'" as well as the inherent psychological effects of incommunicado interrogation in a police-dominated atmosphere, fashioned the now famous Miranda warnings that police must issue prior to interrogating suspects who are in custody. 384 U.S. at 445-58, 479, 86 S.Ct. at 1612-19, 1630-31. The Court designed these warnings to "assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself." Id. at 439, 86 S.Ct. at 1609. The Court held that "the 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." Id. at 444, 86 S.Ct. at 1612.
On occasion, a suspect who is in custody will provide incriminating statements without Miranda warnings and later provide further incriminating details after receiving Miranda warnings. The initial failure to warn may be due to oversight, confusion about whether a suspect is in custody, or a tactical choice by the police not to supply Miranda warnings. Two cases from the United States Supreme Court address the impact of such a situation. First, in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), a police officer questioned a suspect at his mother's home about a burglary, without first providing Miranda warnings. The suspect was in custody at that time and, therefore, police should have provided Miranda warnings. The suspect admitted he was present during the burglary. Id. at 301, 105 S.Ct. at 1288-89. Police then took the suspect to the police station. About an hour later, police informed him about his Miranda rights and proceeded to question him. He waived his Miranda rights and confessed to his involvement in the crime. Id. at 301-02, 105 S.Ct. at 1288-89. The defendant sought to suppress the statement he made at the police station, arguing that the "[unwarned] statement he made in response to questioning at his house `let the cat out of the bag' and tainted the subsequent confession as `fruit of the poisonous tree.'" Id. at 302, 105 S.Ct. at 1289 (citations omitted). The Court rejected this argument, reasoning that "[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." Id. at 309, 105 S.Ct. 1285. "[A]bsent deliberately coercive or improper tactics in obtaining the initial statement," the Court concluded, "subsequent administration of Miranda warnings... ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id. at 314, 105 S.Ct. at 1296.
The Court revisited the issue in 2004 when it addressed "a new challenge to Miranda": a deliberate "question first" or "two-step" interrogation technique. Seibert, 542 U.S. at 609, 124 S.Ct. at 2608. Under this technique, police would first seek to elicit a confession without Miranda warnings. If successful, police would then issue Miranda warnings and guide the suspect through a repetition of the statement that was obtained without the benefit of Miranda warnings. Id. at 605-06, 609, 124 S.Ct. at 2606-07, 2608. Although five Justices concluded that the suspect's second statement could not be admitted as evidence, no single opinion spoke for the Court.
Justice Souter, writing for a plurality that included Justices Stevens, Ginsburg, and Breyer, wrote that "[t]he threshold issue when interrogators question first and warn later is ... whether it would be reasonable to find that in these circumstances the warnings could function `effectively' as Miranda requires." Id. at 611-12, 124 S.Ct. at 2610. Justice Souter provided some "relevant facts that bear on whether Miranda warnings delivered midstream could be effective":
Id. at 615, 124 S.Ct. 2601.
Justice Breyer joined the plurality in full and wrote a separate concurring opinion, in which he expressed his view that "Courts should exclude the `fruits' of the initial unwarned questioning unless the failure to warn was in good faith." Id. at 617, 124 S.Ct. at 2613. He expressed his agreement with Justice Kennedy's opinion "insofar as it is consistent with this approach and makes clear that a good-faith exception applies." Id. at 618, 124 S.Ct. at 2614.
For his part, Justice Kennedy concurred in the judgment, but on what he termed "narrower" grounds. Id. at 622, 124 S.Ct. at 2616. Justice Kennedy agreed with the plurality that "[t]he interrogation technique used in this case is designed to circumvent Miranda v. Arizona" and that "statements obtained through the use of this technique are inadmissible." Id. at 618, 124 S.Ct. at 2614. He concluded, however, that the plurality opinion "cuts too broadly" because it would apply to both intentional and unintentional two-step interrogations. Id. at 622, 124 S.Ct. at 2616. In his view, unless the police employed "the two-step interrogation technique ... in a calculated way to undermine the Miranda warning," then "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad." Id. at 622, 124 S.Ct. at 2616.
Finally, Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas, dissented on the basis that the Elstad framework compelled a different outcome. Justice O'Connor noted her agreement with the Souter plurality that the defendant's statement "cannot be held inadmissible under a `fruit of the poisonous tree' theory." Id. at 623, 124 S.Ct. at 2616. Furthermore, in disagreement with Justice Kennedy, she wrote that "the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer." Id.
Although this Court has not by binding precedent determined the scope of the Seibert holding,
Justice Kennedy's concurrence also is most consistent with the Elstad decision, which both the plurality and the dissent accepted as valid precedent. In Elstad, the Court noted that "absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion." 470 U.S. at 314, 105 S.Ct. at 1296. Justice Kennedy's concurrence essentially concludes, consistently with Elstad, that the two-step interrogation technique is one that is "deliberately coercive or improper" and takes such interrogations outside of the general rule articulated in Elstad.
We hold that unless police deliberately employ the "question first" strategy, the admissibility of postwarning statements is governed by Elstad. If the two-step, question first strategy is employed, postwarning statements that are related to the substance of prewarning statements must be excluded unless police take curative measures before the postwarning statements are made. The net effect of Seibert is to carve out an exception to the Elstad framework for cases in which a law enforcement officer employs a deliberate, two-step strategy to obtain a postwarning confession.
The circuit court concluded that this was not a Seibert two-step case, i.e one in which the officers deliberately obtained a confession and then prodded the suspect to repeat the confession following Miranda warnings. We first note that this "deliberateness finding is appropriately reviewed as a factual finding." United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007). This Court is "bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). Sergeant Royal testified that he did not employ the two-step technique. The evidence establishes that the Herndon Police Department had never used this technique. Moreover, the way Sergeant Royal proceeded differs markedly from the method employed in Seibert. In Seibert, the suspect was questioned for 30 or 40 minutes until she confessed. 542 U.S. at 604-05, 124 S.Ct. at 2605-06. The officer in Seibert testified that he deliberately did not provide Miranda warnings at this time. After the suspect confessed, she received a 20-minute coffee and cigarette break. Id. at 605, 124 S.Ct. at 2606. The officer then turned on a tape recorder, provided Miranda warnings, and resumed questioning. Id. Here, aside from a few preliminary questions, the only question asked before appellant was given Miranda warnings was whether he had authored the note. The trial court's conclusion, that this was not a Seibert two-step case, is fully supported by the record.
The distinct method employed by the police in Seibert was not used here. Therefore, the admissibility of appellant's statements is governed by Elstad. Under that decision, "absent deliberately coercive or improper
Examining "the surrounding circumstances and the entire course of police conduct with respect to the suspect," Elstad, 470 U.S. at 318, 105 S.Ct. at 1298, there can be no serious dispute that the statement appellant provided after he received Miranda warnings was voluntary. The videotape of the interrogation, which is included in the record and which we have viewed, shows that Sergeant Royal was gentle, solicitous even, in the way he questioned appellant. The surrounding circumstances reveal a guilt stricken man who sought to unburden himself of the crime he committed. Indeed, appellant does not contend that his statement was involuntary.
The statements Kuhne made following his Miranda waiver were admissible under Seibert and Elstad. Accordingly, the judgment of the trial court is affirmed.
Affirmed.
