                    COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Bray
Argued at Norfolk, Virginia


EUGENE LAMONT OWENS
                                        MEMORANDUM OPINION * BY
v.   Record No. 0647-93-1             JUDGE JAMES W. BENTON, JR.
                                            JUNE 27, 1995
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     John C. Morrison, Jr., Judge

            Robert D. Eisen for appellant.
            Kathleen B. Martin, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Donald R. Curry, Senior Assistant Attorney
            General, on brief), for appellee.



      Eugene Lamont Owens was convicted of second degree murder,

robbery, and two offenses of use of a firearm in commission of a

felony.    Owens contends that the trial judge erred in failing to

suppress statements he made after his arrest.      We affirm the

convictions.

                                 I.

      Prior to trial, Owens' counsel filed a motion to suppress

"statements . . . taken in violation of [Owens'] Fifth Amendment

rights."   At the evidentiary hearing, Detective Shaun Squyres

testified concerning the circumstances surrounding his interviews

with Owens following Owens' arrest for the killing of Andrew

Green.    Squyres testified that he was told that Rodolfo Cejas, an

attorney, was in the police station on February 19, shortly after
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Owens had been brought into the station.    Squyres said that he

was not informed that the attorney requested to see Owens.     The

record contained no testimony by Cejas that he had been retained

by Owens or requested to see Owens.

     Squyres advised Owens of his Miranda rights at 9:52 a.m.

Owens stated that he understood those rights and responded to

Squyres' questions.   Owens initially denied being present when

Green was killed.   As Squyres questioned him further, Owens

stated that he was in the vicinity of the event, heard the shots,

but did not rob or kill Green.    Owens said that he had purchased

wine and heroin the night of the shooting.
     Squyres acknowledged that if Owens had used drugs and

consumed alcohol the night before the interview, he could have

been intoxicated during the interview.   Squyres testified,

however, that nothing about Owens' behavior indicated that he was

intoxicated.   Moreover, Squyres said he had known Owens for a

long time and Owens "wasn't acting any different than any other

time that I had ever seen [him] on any occasion."

     At 1:14 p.m. following the initial interview, Squyres again

spoke to Owens.   Squyres testified that he stopped the

conversation when Owens said "I want to talk to my lawyer."

Owens was then taken to a holding cell in the police station.

Squyres testified that Owens began pounding on the door later

that day and asked to speak with Squyres.    When Squyres again met

with Owens at 3:50 p.m., Owens told Squyres that he wanted to



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tell the truth.   Owens then told Squyres that he took several men

to Green's house to rob Green.    Owens described an exchange of

gunfire in which Green and another man shot and killed

themselves.   Owens denied having a gun or shooting during the

robbery.

     Squyres testified that the day after those interviews Owens'

friend, Kim Baldwin, made a telephone call to him.     Baldwin

initiated a conference call in which they spoke with Owens from

the jail.    After Squyres gave Owens Miranda warnings, Owens told

Squyres where the guns were hidden.      Owens again denied that he

was armed during the robbery.

     Squyres testified that on February 21, Owens called again

from jail and said he wanted to talk to Squyres.     Squyres had

Owens transported to the police station.     After Squyres gave

Owens Miranda warnings, Owens provided more detail regarding the

robbery of Green and admitted his involvement in the robbery.

However, he continued to deny that he was armed.     When Owens

refused to repeat the statements on audio tape, Squyres ended the

interview.    On February 22, Owens called Squyres from the jail

and said he would allow the statement to be recorded.     Squyres

testified that he refused to meet Owens and told Owens to contact

him through Owens' attorney.

     Squyres testified that seven months later, following a

proceeding involving Owens' co-defendants, Baldwin called to tell

Squyres that Owens wanted to talk to him.     On September 22,



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Squyres arranged an interview with Owens at the police station

and again advised Owens of his Miranda rights.    Squyres said that

Owens was angry because a witness had recanted statements

concerning the crimes and the prosecutor had decided not to

prosecute two co-defendants who had been charged.   Owens wanted

to give a statement because "he didn't want to take the weight

. . . by himself."    Owens gave a statement that was consistent

with his last prior statement except that he admitted being armed

at the time of the robbery.   The statement was detailed and

included a description of the participation of the two co-

defendants who had been released from jail.   This statement was

recorded.
     Squyres testified that Owens told him that Baldwin could

confirm many of his statements.   Squyres told Owens that it was

important that Baldwin talk to him since "she was the source of

this conversation about these deals being made to change stories

on cases."    Owens told Squyres that Baldwin would speak to

Squyres if Owens told her to.

     Squyres testified that two days later he brought Baldwin to

the police station.   Squyres spoke to Baldwin alone and taped her

statements.   Squyres testified that while he was recording

Baldwin's statement, Owens was in another room reading his typed

statement.

     Squyres testified that after he obtained Owens' and

Baldwin's signatures on their respective statements, he brought



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Owens and Baldwin together in the same room to speak with them

about their statements.   Squyres said that after talking to them

he left the room, locked the door, and went to check his records

to verify their story.    Squyres testified that after three

minutes, he returned and "checked on them."   He again left the

room, "search[ed] information, answered a couple [of] phone

calls, and, eight or ten minutes later, . . . stepped back in the

room and . . . told them to say good-by."   Squyres testified that

he had not made any promises to Owens and had not threatened him.
     Owens and Baldwin testified at the hearing and contradicted

Squyres' testimony in several respects.   Owens testified that

when Squyres read Miranda rights to him on the morning of his

arrest, he told Squyres that he was intoxicated and wanted to

talk to his lawyer.    Owens testified that prior to his arrest he

had been drinking and had used heroin.    Owens also testified that

he could not remember what he told Squyres that day because of

his intoxication.

     Owens also testified that in September Baldwin told him that

Squyres wanted to talk to him.    When he contacted Squyres,

Squyres was angry about the release of two co-defendants.

Squyres asked Owens if he wanted to see Baldwin.   Owens testified

that when he answered affirmatively, Squyres told him what he

expected him to say.   Owens said that Squyres recorded his

statement and erased the tape whenever he said something

incorrectly.   He said that after he completed his statement,



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Squyres told him that "I am going to get [Baldwin] down here and

see what she knows about the case and I'm going to let you be

with her . . . I know you've been incarcerated a long time.     I

know you'd like to be with your wife."   Owens said he understood

that statement to mean that Squyres would allow him to have

sexual intercourse with Baldwin.

     He testified that Squyres gave him the typed statement to

read the next day when Baldwin was in the police station.    He

testified that he signed the statement only after he had sexual

intercourse with Baldwin.   Owens testified that the statement was

false and that he only gave the statement because of the promise

of sexual intercourse.
     Baldwin testified that she called Squyres several times when

Owens was in jail, and she participated in conference calls with

Owens and Squyres.   She did so because Owens wanted to talk to

Squyres.   Baldwin testified that Squyres called her in September

to say he wanted "to get everything straight about this case" and

asked her if she wanted to see Owens.    Squyres picked her up at 9

p.m., took her to the police station, and entered through the

back door.   When she entered the interrogation room, she saw

Owens reading something that appeared to be a typed statement.

Squyres took her into another room, where they talked.   She

testified that she did not know why the witness changed his

story, and that she told Squyres what she had heard.   She

testified that Squyres then took her to Owens, said to her,




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"Don't do nothing nasty," and left the room.   She and Owens then

had sexual intercourse in the room.   A half hour later, Squyres

returned to the room, asked no further questions, and took her

home.




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                                II.

     Owens contends that any statements he made to the police

were involuntary and taken in violation of his Fifth Amendment

rights.   The Commonwealth argues that Owens' counsel waived any

claim regarding the admissibility of his statements to the

police.   We disagree that the issue was not preserved for appeal.

At trial when the prosecutor offered in evidence the statements

the judge had refused to suppress, Owens' counsel stated, "We

will stipulate [Owens] was properly Mirandized.      We have no

problem with the statements."   We conclude that Owens' counsel

conceded only that the police properly warned Owens of his

Miranda rights.   The trial judge had already ruled at the

suppression hearing that Owens had failed to prove that his

statements were involuntary because he was intoxicated and

induced by sex.   Counsel's statement at trial merely conceded the

propriety of the Miranda warnings.      Counsel did not waive the

involuntary issue that was raised at the suppression hearing.

     Even where a suspect has been advised of rights as required

by Miranda v. Arizona, 384 U.S. 436, 475-76 (1966), and has made
a statement, see Mincey v. Arizona, 437 U.S. 385, 396-97 (1978),

that statement is inadmissible if it was made involuntarily.          Id.

at 402.   See also Miller v. Fenton, 474      U.S. 104, 110 (1985).

Whether a statement is voluntary is a legal determination rather

than a factual question.   See id.      The test to determine

voluntariness is whether the statement is "the product of an



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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."   Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973).   To determine whether an

accused's will has been overborne, this Court must look to "the

totality of all the surrounding circumstances."   Id. at 226.

     No evidence in the record supports Owens' claim that the

statements he made when he was first questioned were involuntary.

Owens testified that he was intoxicated.   However, Squyres

testified that Owens did not show any signs of intoxication.
          Statements made during a custodial
          interrogation and while intoxicated are not
          per se involuntary or inadmissible. The test
          is whether, by reason of the intoxication,
          the defendant's "will was overborne" or
          whether the statements were the "product of a
          rational intellect and a free will."


Yarborough v. Commonwealth, 217 Va. 971, 974, 234 S.E.2d 286, 289

(1977) (citations omitted).   Nothing in the record supports a

claim by Owens that he was intoxicated to the degree that his

will was overborne or that he was not capable of making a free

and rational decision when he waived his right to remain silent

and spoke to the police officer.   Owens' mere statement that he

was intoxicated was not sufficient to prove that his waiver was

involuntary.   Id.

                               III.

     Owens further argues that his Fifth Amendment rights against

self-incrimination were violated because Squyres induced Owens to



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confess with a promise of sexual contact with his friend, Kim

Baldwin.   Squyres testified that Owens gave a recorded statement

prior to any mention of a meeting with Baldwin.     Owens testified

that before he gave a statement Squyres asked him if he wanted to

"see [Baldwin]."    According to Owens' testimony, however, it was

only after the statement was recorded did Squyres promise Owens

that he could "be with [Baldwin]."      Owens said he took that to

mean "to have sex with her" and "thought [Squyres] was just

playing or something."   The trial judge resolved the conflicts in

the testimony and found Squyres to be more believable.      See Gray

v. Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174, cert.

denied, 484 U.S. 873 (1987).    That credibility determination

finds support in the record.   Thus, we cannot say that the record

supports a finding that Owens' statement was induced by a promise

of sexual favors.

     The record does reflect that Squyres provided Owens the

opportunity to engage in sexual relations with Baldwin after the

statement was signed.    Squyres testified that he knowingly left

Owens, who was in custody, alone and unobserved in a locked room

with Baldwin.   By Squyres' own testimony, Owens and Baldwin were

alone for thirteen minutes.

     The record establishes no reason for Baldwin and Owens to

have been left unattended in this manner.     Although the record

supports the trial judge's finding that the sex was not an

inducement, Squyres' conduct in this matter raises a serious



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question of the propriety of his methods.    Even if, as Squyres

testified, he was not aware that Owens and Baldwin had sexual

intercourse, he certainly was aware that he afforded Owens and

Baldwin the opportunity to engage in sexual intercourse or any

other activity available to them in the privacy of the locked

interrogation room.

     Although the evidence proved Squyres acted with impropriety,

Owens has failed, however, to show that the favor Squyres

bestowed upon him after he had given a statement induced him to

make the statement.     Accordingly, the proof fails to establish

that his statement was involuntary.
                                  IV.

     Owens contends that his Sixth Amendment right to counsel was

violated when he was denied his request to see his attorney on

the morning of February 19.    Owens' motion to suppress, however,

raised only the issue of a Fifth Amendment violation.    Owens'

counsel never asserted a Sixth Amendment claim in the court below

and is barred from raising this issue now for the first time on

appeal.   Rule 5A:18.

     For these reasons, we affirm Owens' convictions.

                                                     Affirmed.




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