                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, Russell and Senior Judge Felton
UNPUBLISHED


              Argued by teleconference


              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1739-15-1                                  JUDGE MARLA GRAFF DECKER
                                                                                 MARCH 22, 2016
              ROBERT MALICK, S/K/A
               ROBERT WILLIAM MALICK


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                               Leslie L. Lilley, Judge

                               Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellant.

                               James O. Broccoletti (Randall J. Leeman, Jr.; Zoby, Broccoletti &
                               Normile, P.C., on brief), for appellee.


                     Robert Malick (the defendant) was indicted for second-degree murder in violation of Code

              § 18.2-32. Pursuant to Code §§ 19.2-398 and -400, the Commonwealth appeals a pretrial ruling

              granting a portion of the defendant’s motion to suppress. The circuit court concluded that two of the

              defendant’s statements to law enforcement officers were obtained in a way that violated the

              defendant’s right against self-incrimination as guaranteed by the Fifth Amendment of the United

              States Constitution. Based on this ruling, the circuit court excluded the two statements. The

              Commonwealth contends that the statements did not result from interrogation and instead were

              volunteered, rendering them admissible under the Fifth Amendment. Additionally, the

              Commonwealth challenges the remedy imposed, arguing that even if the statements were obtained

              in violation of the Fifth Amendment, their exclusion was not required. We hold that the record,


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
viewed under the appropriate legal standard, supports the circuit court’s conclusion that the

statements were elicited in a manner that violated the defendant’s Fifth Amendment rights and that

exclusion of the statements was the proper remedy. Consequently, we affirm the circuit court’s

ruling suppressing the challenged evidence, and we remand the case for further proceedings

consistent with this opinion.

                                        I. BACKGROUND

       In December 2014, Detectives Douglas Zebley and Angela Curran of the Virginia Beach

Police Department were members of the department’s cold case unit. In the course of that work,

they identified the defendant as a suspect in a murder that had occurred in Virginia Beach

twenty-four years earlier, in December 1990.

       The detectives traveled to Pennsylvania and met with the defendant at his home. They

had a conversation with him about J.S., a teenager who had lived across the street from where the

defendant had previously resided in Virginia Beach with his parents. The defendant admitted

that he remembered J.S. but claimed that he “didn’t really keep up with her” after he joined the

Navy in 1986. When Zebley told the defendant that they had evidence that the defendant had

been “with [J.S.] prior to her death,” he admitted that he “had sex” with her the night before her

body was found. When Zebley asked the defendant what happened next, he answered “that he

did something that he couldn’t get out of and he didn’t want to make any more statements”

without an attorney present. The circuit court ruled that these statements made to Detectives

Zebley and Curran were not obtained in violation of the Fifth Amendment and denied the

defendant’s motion to suppress them. The defendant does not challenge the trial court’s ruling




                                                 -2-
regarding these statements, and the question of their admissibility is not before this Court on

pretrial appeal. 1

        Additional evidence offered at the suppression hearing established that after the

defendant invoked his right to counsel, the Virginia Beach detectives stopped the questioning.

They also informed him that although he was not under arrest, they had a search warrant for a

DNA sample and fingerprints. Detective Zebley explained that they had arranged for

Pennsylvania state troopers to transport the defendant in order to obtain the DNA sample and his

fingerprints. Zebley told him that he was “being detained until that search warrant could be

served.”

        Pennsylvania State Troopers Richard Neiswonger and Eric Rogers arrived at the

defendant’s home a few minutes later. Detective Zebley told the troopers that the defendant had

invoked his right to counsel. In order to obtain the evidence specified in the warrant, the

troopers handcuffed the defendant and placed him in the rear seat of their police car for transport.

The troopers also advised him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),

before leaving his residence. Trooper Neiswonger drove, and Trooper Rogers sat in the front

passenger’s seat.

        The only evidence at the suppression hearing about what happened during the drive to the

hospital came from the testimony of Trooper Neiswonger and the defendant. Neiswonger

explained that prior to the troopers’ involvement in the execution of the search warrant, the

Virginia detectives had told them that the warrant related to a murder that had occurred while the

        1
          On review of a ruling on a motion to suppress, this Court views the evidence in the light
most favorable to the party who prevailed below. See Gregory v. Commonwealth, 64 Va. App.
87, 93, 764 S.E.2d 732, 735 (2014). Therefore, as to information involving the statements that
the defendant made to Zebley and Curran, the portion of the motion that the circuit court denied,
we view that evidence in the light most favorable to the Commonwealth. See id. However, as to
the portion of the motion that the court granted, discussed infra in the text, we view the evidence
in the light most favorable to the defendant. See id.; Commonwealth v. Peterson, 15 Va. App.
486, 487, 424 S.E.2d 722, 723 (1992).
                                                -3-
defendant was in the Navy in Virginia Beach “some 20 years [earlier].” While Neiswonger and

Trooper Rogers were driving the defendant to the hospital, Rogers initiated a conversation in

which he asked the defendant, who “was from Pennsylvania, how [he] ended up in Virginia

Beach.” The defendant responded that he “was in the Navy and [his] father was in the Navy,”

and he and Trooper Rogers “just . . . started talking.” The defendant testified that during the

conversation, Rogers “asked [him] about [the victim, J.S.].” The defendant said he responded

that he “need[ed] a lawyer” and “[was] not going to talk about that.” According to the

defendant, the conversation lasted seven to ten minutes.

       Neiswonger overheard portions of the conversation between Rogers and the defendant.

He testified that he “really [didn’t] know” how the conversation began. Neiswonger thought that

Rogers brought up the subject of the defendant’s time in the Navy, but he could not recall “the

first thing that [Rogers] may have said to [the defendant] about his Navy life in Virginia Beach.”

Despite admitting that he did not recall everything that was said, Neiswonger stated that neither

he nor Rogers “question[ed]” the defendant about the case or tried to elicit any information about

it. The trooper further testified that the defendant “spurted out” two “odd” statements to Rogers

during the conversation. The first statement was “something to the tune of, [‘]It’s terrible that

people get away with this type of crime for a long period of time.[’]” Regarding the second

statement, Neiswonger testified that the defendant asked the troopers if they “had any

suggestions on how to get out of this.” The defendant was not specifically asked at the hearing

whether he made the two “odd” statements that Neiswonger attributed to him or, if so, when he

made them in relation to when Rogers asked him about J.S.

       In opposing the defendant’s motion to suppress the statements made to Rogers, the

Commonwealth argued that the defendant volunteered the statements. Alternatively, it




                                                -4-
contended that any involvement of the troopers in eliciting the statements did not rise to the level

of police misconduct sufficient to require exclusion.

       The circuit court found that the defendant made the statements to Rogers and granted the

motion to suppress them. The court also denied the Commonwealth’s motion to reconsider that

ruling. In disposing of the two motions, the court observed that it was troubled by the fact that

Trooper Rogers did not testify at the suppression hearing and that Trooper Neiswonger made

conflicting statements about the conversation he overheard between the defendant and Rogers.

The court also noted Neiswonger’s admission that he and Rogers knew from “background

investigation” that the allegations against the defendant related to the time when he was in the

Navy in Virginia Beach. The court additionally observed that although the statements “on their

face look as if they could be blurted out, . . . there is a conversation going on” and Neiswonger

could not recall the specific comments or questions of Trooper Rogers that preceded the

defendant’s key responses. The court further noted the defendant’s testimony that he and Rogers

were having a conversation about the Navy and how the defendant ended up in Virginia Beach.

The court then observed that when Trooper Rogers “asked [the defendant] about [J.S.],” the

defendant said he wanted a lawyer and was “not going to talk about that.” Emphasizing that

Trooper Neiswonger could not recall the conversation clearly and was not the one having it, the

court concluded that the Commonwealth had not met its burden of proving by a preponderance

of the evidence that the statements were volunteered and not foreseeable. Accordingly, it held

the Commonwealth failed to prove that the statements did not result from custodial interrogation

that occurred after the defendant had invoked his right to counsel. The circuit court did not

mention the Commonwealth’s argument that excluding the evidence to remedy any violation of

the Fifth Amendment was unnecessary, thereby implicitly rejecting that argument.




                                                -5-
                                            II. ANALYSIS

        The Commonwealth challenges the circuit court’s ruling granting the defendant’s motion to

suppress as it relates to the statements that the defendant made to Trooper Rogers. On review of a

ruling on a motion to suppress, the appellate court is bound by the lower court’s findings of fact

unless “plainly wrong or without evidence to support them.” Gregory v. Commonwealth, 64

Va. App. 87, 93, 764 S.E.2d 732, 735 (2014) (citing Code § 8.01-680). The trial court is not

required to make explicit findings, and to the extent that it does not make such findings, this Court

views the evidence on a “motion to suppress incriminating statements” made to police “‘in the light

most favorable to the [party who prevailed below,] and . . . [it] accord[s] [that party] the benefit of

all reasonable inferences fairly deducible from that evidence.’” Id. at 92-93, 764 S.E.2d at 735

(quoting Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012)); see

Commonwealth v. Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). We review the

circuit court’s application of the law de novo. Commonwealth v. Quarles, 283 Va. 214, 220, 720

S.E.2d 84, 87 (2012).

        The Commonwealth argues that the circuit court erroneously concluded that the defendant’s

statements to Trooper Rogers were made in response to custodial interrogation after the defendant

invoked his right to counsel. The Commonwealth further contends that even if the statements were

made during custodial interrogation, the evidence did not establish police misconduct sufficient to

trigger the remedy of excluding the statements. Applying the proper standard of review to the trial

court’s findings and conclusions, we hold that the circuit court’s decision to grant the challenged

portion of the motion to suppress was not error.

                         A. Custodial Interrogation and the Right to Counsel

        Pursuant to the guarantees of the Fifth Amendment of the United States Constitution, “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.” Anderson v.

                                                   -6-
Commonwealth, 279 Va. 85, 90, 688 S.E.2d 605, 607 (2010) (quoting U.S. Const. amend. V). In

order to protect this right, when law enforcement officers question a suspect who is in custody, they

must first provide the suspect with appropriate warnings pursuant to Miranda v. Arizona, 384 U.S.

436 (1966). Quarles, 283 Va. at 220, 720 S.E.2d at 87. Those warnings include the right to an

attorney and to have that attorney present during questioning. Id. If a “suspect invokes the right to

counsel, the interrogation must cease until an attorney has been made available to the suspect or the

suspect reinitiates the interrogation” pursuant to the terms set out in Edwards v. Arizona, 451 U.S.

477, 484-85 (1981), and its progeny. Id. The holding in Edwards requires proof, additionally, that

the accused knowingly, intelligently, and voluntarily waived the previously asserted right to

counsel. Ferguson v. Commonwealth, 52 Va. App. 324, 335-36, 663 S.E.2d 505, 510-11 (2008) (en

banc). “If the police initiate a subsequent interrogation, ‘the suspect’s statements are presumed

involuntary and therefore inadmissible as substantive evidence at trial’ . . . . This rule is

‘designed to prevent police from badgering a defendant into waiving his previously asserted

Miranda rights.’” Quarles, 283 Va. at 220 n.3, 720 S.E.2d at 87 n.3 (emphasis added) (citation

omitted) (quoting McNeil v. Wisconsin, 501 U.S. 171, 177 (1991)).

       The rule against police reinterrogation applies to both “express questioning” and “its

functional equivalent.” Id. at 220-21, 720 S.E.2d at 87-88 (quoting Rhode Island v. Innis, 446

U.S. 291, 301-02 (1980)). The functional equivalent of express questioning includes “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 reasonably likely to elicit an incriminating response from the

suspect.” Id. at 221, 720 S.E.2d at 88 (quoting Innis, 446 U.S. at 301). Consequently,

incriminating responses of an accused that are the foreseeable result of non-routine police

questioning are treated as resulting from interrogation. Id. at 221-22, 720 S.E.2d at 88.

Conversely, “if a suspect’s statement is ‘not foreseeable, then it is volunteered.’” Testa v.

                                                 -7-
Commonwealth, 55 Va. App. 275, 284, 685 S.E.2d 213, 217 (2009) (quoting Watts v.

Commonwealth, 38 Va. App. 206, 217, 562 S.E.2d 699, 705 (2002)). “[V]olunteered statements

of any kind are not barred by the Fifth Amendment . . . .” Smith v. Commonwealth, 65 Va. App.

288, 296-97, 777 S.E.2d 235, 239 (2015). Accordingly, even if police questioning is

inappropriate, statements that are nonresponsive qualify as volunteered, and their use does not

violate the Fifth Amendment. See Testa, 55 Va. App. at 283-84, 685 S.E.2d at 217.

Additionally, it is “the content of the entire statement in light of the circumstances that controls

whether it was functionally the equivalent of interrogation.” Quarles, 283 Va. at 222, 720 S.E.2d

at 88 (emphasis added). Finally, the prosecution bears the burden of proving the admissibility of

the incriminating statements by a preponderance of the evidence. See, e.g., Colorado v.

Connelly, 479 U.S. 157, 168-69 (1986).

       An incriminating statement that results from subtle compulsion, such as one made in

response to a conversation between two officers that is merely conducted in the presence of an

arrestee, has been classified by the United States Supreme Court as volunteered rather than the

functional equivalent of interrogation. See Quarles, 283 Va. at 223, 720 S.E.2d at 89 (citing

Innis, 446 U.S. at 303 (involving a conversation about child safety between officers transporting

a murder suspect, to which the suspect responded by leading the officers to the murder weapon)).

However, where an officer in a confined space with the arrestee asks him direct questions that

are “clearly intended to elicit [incriminating] information”—not mere routine “booking”

questions—the questions constitute custodial interrogation. Pearson v. Commonwealth, 221 Va.

936, 943-44, 275 S.E.2d 893, 898 (1981) (inquiring about the location of possible evidence after

arraignment and processing had been completed); see also Timbers v. Commonwealth, 28

Va. App. 187, 197-99, 503 S.E.2d 233, 237-38 (1998) (holding that where an officer who

received a name from an arrestee during the routine booking process and later, upon learning that

                                                -8-
the name was probably false, confronted her in her holding cell to question her about “her real

identity,” the officer engaged in interrogation or its functional equivalent).

       Here, it is undisputed that the defendant invoked his right to counsel while speaking with

Detectives Zebley and Curran and that the detectives conveyed this information to the troopers

when they took custody of him. It is also undisputed that the troopers knew prior to transporting

the defendant that the criminal allegations the detectives were investigating related to the time

when the defendant was in the Navy in Virginia Beach. Additionally, the circuit court found that

the defendant made the statements at issue during the transport by the troopers. The court further

observed, based on the nature of the statements themselves, that they “could [have] be[en]

blurted out” without any sort of encouragement or provocation. However, contrary to the

wording of the Commonwealth’s assignment of error, the circuit court’s decision suppressing the

statements that the defendant made to Rogers was not based on what the Commonwealth proved.

It was based, instead, on what the court found that the Commonwealth failed to prove. The court

found a lack of affirmative evidence of the precise context in which the defendant made the

statements. Based on that lack of context, the court held that the Commonwealth failed to meet

its burden of proving that the statements were volunteered rather than the result of interrogation

or its functional equivalent.

       We hold that the evidence in the record, viewed under the proper standard of review,

supports this conclusion. The evidence establishes that Trooper Rogers, who knew the crime at

issue occurred while the defendant was in the Navy in Virginia Beach, initiated a conversation

with the defendant, who had already invoked his right to counsel, about the defendant’s time in

the Navy in Virginia Beach. Trooper Rogers was not present to testify at the suppression

hearing, and Trooper Neiswonger testified that he overheard only parts of the conversation

between Rogers and the defendant. Further, the record shows that in the course of that

                                                -9-
seven-to-ten-minute conversation, Trooper Rogers specifically asked the defendant about the

victim, J.S.2 Additionally, the conversation occurred as the defendant was being transported for

the purpose of providing a forced DNA sample and fingerprints that might implicate him in the

death of J.S. The circuit court specifically observed that it was troubled by Rogers’ absence

from the hearing and the resulting lack of information regarding the full context in which the

statements at issue were made. Finally, the evidence failed to establish to the satisfaction of the

circuit court, the finder of fact, what questions immediately preceded the defendant’s challenged

statements to Rogers or whether the defendant made those statements before or after Rogers

asked the defendant about J.S.

       None of the circuit court’s factual findings were plainly wrong or without evidence to

support them. In the absence of more detailed information regarding the precise context in

which the defendant made the statements at issue, the evidence supports the conclusion that the

Commonwealth failed to prove “the content of the entire [conversation].” Based on the record

before it, the circuit court was unable to determine whether the circumstances in which the

defendant made the statements were the functional equivalent of interrogation. See Quarles, 283

Va. at 222, 720 S.E.2d at 88; see also Jenkins v. Commonwealth, 244 Va. 445, 453, 423 S.E.2d

360, 365 (1992) (upholding the denial of a motion to suppress where an audio recording

established that a murder suspect being transported by officers initiated discussions “by asking

such questions as: ‘Did you all charge me with capital or what?’ and ‘When did you all find the

bodies?’”).

       Thus, we conclude as a matter of law, based on the circuit court’s subsidiary findings of

fact, that the Commonwealth failed to prove that the defendant’s statements to Rogers were


       2
          The circuit court did not make an express finding either accepting or rejecting the
defendant’s testimony on this point. Therefore, the evidence viewed under the proper standard,
is that Trooper Rogers asked the defendant about the victim.
                                               - 10 -
volunteered.3 Accordingly, the statements, which were made after the defendant invoked his

right to counsel, were obtained in a way that violated the defendant’s Fifth Amendment rights.

                       B. Proper Remedy for the Fifth Amendment Violation

        The Commonwealth contends that the evidence does not establish police misconduct

sufficient to trigger exclusion of the defendant’s statements to Rogers made in violation of his Fifth

Amendment rights. It relies on the holding in Herring v. United States, 555 U.S. 135, 144 (2009),

rendered in the context of a violation of the Fourth Amendment, for the proposition that exclusion is

the appropriate remedy only if “police conduct [is] sufficiently deliberate that exclusion can

meaningfully deter it[] and sufficiently culpable that such deterrence is worth the price paid by the

justice system.” The Commonwealth contends that the defendant’s statements were not “reasonably

foreseeable” and, as a result, that exclusion would not serve as a deterrent.

        We have already concluded that the evidence supports the circuit court’s finding that the

Commonwealth failed to prove that the defendant volunteered the statements. This means,

conversely, that the Commonwealth failed to meet the burden of proving that the statements were

not reasonably foreseeable by Officer Rogers. See Testa, 55 Va. App. at 284, 685 S.E.2d at 217. If

the evidence is insufficient to prove foreseeability for purposes of the merits analysis, it is equally

insufficient to prove foreseeability for purposes of establishing that exclusion is not the required

remedy. To the contrary, because the Commonwealth failed to establish that the statements were

not “compelled” and, thus, did not violate the Fifth Amendment’s substantive guarantee, exclusion

is required. See Kansas v. Ventris, 556 U.S. 586, 590-91 (2009) (recognizing that exclusion of


        3
         It is clear from the parties’ arguments, as well as the court’s statements and rulings, that
they used the terms “volunteered” and “voluntary” somewhat interchangeably. The record
makes clear, however, that the only issue in dispute in the circuit court and in this Court is
whether the defendant’s statements were the foreseeable result of custodial interrogation or its
functional equivalent or, instead, were volunteered. Thus, we do not consider the separate issue
of whether the accused made a voluntary waiver of his right to counsel. See, e.g., Ferguson, 52
Va. App. at 335-36, 663 S.E.2d at 510-11.
                                               - 11 -
evidence that violates the Fifth Amendment is required “to avoid violation of the [amendment’s]

substantive guarantee” but that the Fourth Amendment “says nothing about excluding the[] fruits

[of unreasonable searches and seizures] from evidence” and that the remedy of exclusion for

violation of that amendment “comes by way of [judicially created] deterrent sanction” (emphasis

added)).

        In short, the undisputed evidence proved that the defendant made the challenged statements

after the defendant invoked his right to counsel. Additionally, under the evidence viewed in the

light most favorable to the defendant, he made the statements during a conversation initiated by

Trooper Rogers, and Rogers directed the defendant’s attention to the time and place where the

murder occurred and then specifically asked the defendant about the victim. Based on the

Commonwealth’s failure to provide sufficient additional context to prove that the statements were

volunteered rather than a foreseeable result of Rogers’ re-initiation of interrogation, the text of the

Fifth Amendment itself required exclusion of the resulting statements.

                                          III. CONCLUSION

        We hold that the record, viewed under the appropriate legal standard, supports the circuit

court’s conclusion that the challenged statements of the defendant were elicited in a manner that

violated his Fifth Amendment rights and that exclusion of the statements was the proper remedy.

Consequently, we affirm the circuit court’s ruling suppressing the challenged evidence, and we

remand the case for further proceedings consistent with this opinion.

                                                                               Affirmed and remanded.




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