                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Humphreys and Alston
Argued at Richmond, Virginia


TANIKA L. DURAND
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1348-08-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                 SEPTEMBER 22, 2009
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                 Mark S. Davis, Judge

                 Joseph A. Sadighian, Senior Assistant Appellate Defender, for
                 appellant.

                 Craig W. Stallard, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


       Tanika L. Durand (“Durand”) appeals her conviction, following a jury trial, for

second-degree murder in violation of Code § 18.2-32. On appeal, Durand specifically claims

that the trial court erred in: 1) denying the motion to suppress Durand’s initial statements,

arguing that she made them to the police while she was in custody but prior to Miranda warnings

being given; 2) denying the motion to strike the charge of murder to voluntary manslaughter,

arguing that the evidence did not prove she acted maliciously; and 3) finding that there was

sufficient evidence to corroborate Durand’s “confession.” For the following reasons, we

disagree and affirm her conviction.

                                       A. Motion to Suppress

       First, Durand contends that the trial court erred in denying the motion to suppress her

initial statements to the detectives in the audio-visual room, arguing that she made them to police

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
while she was in custody but prior to Miranda warnings being given. Therefore, Durand claims

that the trial court should have granted the motion to suppress the initial statements.

        “On appeal from a trial court’s denial of a motion to suppress, we must review the

evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all

reasonable inferences fairly deducible from it.” Sabo v. Commonwealth, 38 Va. App. 63, 69,

561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991)). This Court is “bound by the trial court’s findings of historical fact unless

‘plainly wrong’ or without evidence to support them and we give due weight to the inferences

drawn from those facts by resident judges and local law enforcement officers.” 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 (1996)). However, “we review de novo the trial court’s

application of legal standards . . . to the particular facts of the case.” McCracken v.

Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) (citing Ornelas, 517 U.S. at

699).

        “The burden is on the defendant to show that the denial of his suppression motion, when

the evidence is considered in the light most favorable to the Commonwealth, was reversible

error.” McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001) (citing Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)). Viewed in this light and

based on the totality of the evidence presented to the trial court, we hold that Durand’s initial

statements to the police were not made while she was in custody.

        When a question arises regarding a confession, ‘“the issue is controlled by that portion of

the Fifth Amendment . . . commanding that no person shall be compelled in any criminal case to

be a witness against himself.’” Aldridge v. Commonwealth, 44 Va. App. 618, 639, 606 S.E.2d

539, 549 (2004) (quoting Missouri v. Seibert, 542 U.S. 600, 607 (2004) (internal quotations and

                                                -2-
emphasis omitted)). The United States Supreme Court has held that an individual must be

warned of his right to an attorney and his right to remain silent when the “individual is taken into

custody or otherwise deprived of his freedom by the authorities in any significant way and is

subjected to questioning.” Miranda v. Arizona, 384 U.S. 436, 478 (1966). However, “[t]he

United States Supreme Court has long recognized that Miranda warnings are implicated only

during a custodial interrogation.” Aldridge, 44 Va. App. at 641, 606 S.E.2d at 550 (citing

Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Therefore, “‘police officers are not required to

administer Miranda warnings to everyone whom they question,’ and Miranda warnings are not

required when the interviewee’s freedom has not been so restricted as to render him or her ‘in

custody.’” Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 261-62 (1998)

(quoting Mathiason, 429 U.S. at 495).

       Whether an individual is “in custody” for Miranda purposes is “determined based on the

circumstances of each case, and the ‘ultimate issue is simply whether there is a ‘formal arrest or

restraint on freedom of movement’ of the degree associated with formal arrest.’” Id. at 564, 500

S.E.2d at 262 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). This determination

“depends on the objective circumstances of the interrogation, not on the subjective views

harbored by either the interrogating officers or the person being questioned.” Aldridge, 44

Va. App. at 542, 606 S.E.2d at 551 (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)).

“If a reasonable person in the suspect’s position would have understood that he or she was under

arrest, then the police are required to provide Miranda warnings before questioning.” Harris, 27

Va. App. at 564, 500 S.E.2d at 262.

       The circumstances considered in determining whether an individual is “in custody” are

the following:

                 (1) the manner in which the individual is summoned by the police,
                 (2) the familiarity or neutrality of the surroundings, (3) the number
                                                 -3-
               of officers present, (4) the degree of physical restraint, (5) the
               duration and character of the interrogation, and (6) the extent to
               which the officers’ beliefs concerning the potential culpability of
               the individual being questioned were manifested to the individual.

Id. at 565, 500 S.E.2d at 262. But, “[n]o single factor is dispositive of the issue. Id. at 566, 500

S.E.2d at 262 (citing Wass v. Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839 (1987)).

       In this case, the detectives summoned Durand by asking her to come to the police station.

The police did not take her in to the station nor was she coerced into going to the police station.

The first time they asked her to come was after they had completed the child death form at her

home, and the second time was after social services removed the two older children from the

home. On both occasions, the detectives asked that she come down to the station for more

questioning, and she replied that she would. Durand voluntarily went to the police station. A

reasonable person in this situation would not determine that they were in custody when they

voluntarily went to the police station for further questioning.

       The mere fact that an interview takes place at the police station does not mean that it is

automatically a custodial situation. “It is the custodial nature rather than the location of the

interrogation that triggers the necessity of giving Miranda warnings.” Coleman v.

Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983). ‘“[T]he requirement of warnings

[is not] to be imposed simply because the questioning takes place in the station house, or because

the questioned person is one whom the police suspect.’” Aldridge, 44 Va. App. at 644, 600

S.E.2d at 552 (quoting Mathiason, 429 U.S. at 495). Durand voluntarily went to the police

station and was escorted into an audio-visual room rather than a typical interview room and the

door was left open for the entire interview. Upon entering the room, she was immediately

informed by Detective Dempsey that “You’re not under arrest, and you’re free to leave at any

time.” While the audio-visual room was fifty (50) feet from the waiting room, and Durand had



                                                 -4-
to walk through the detective bureau to get to the room, a reasonable person would not think they

were in custody merely because they were moved to another location within the police station.

       Similarly, a reasonable person would not have concluded from the duration and character

of the interview that she was not free to leave. Although Durand’s husband was questioned first,

his interview lasted only fifteen to twenty (15-20) minutes thus making her wait only a minimal

amount of time before her interview started. Once her interview started in the audio-visual

room, it lasted less than forty-five (45) minutes.

       During the interview, only two police officers were present, and neither one of them used

any degree of physical restraint. The audio-visual room where the interview took place held

equipment and desks, and the officers sat in chairs two to three (2-3) feet across from Durand

with nothing in between. At no point did they grab her arm or use any physical restraint. Nor is

there any evidence showing that the detectives attempted to overwhelm her or overbear her will

with a lot of questions. They used calm voices to elicit responses, and while they asked repeated

questions, the questions asked were not coercive in nature. Considering the totality of the

circumstances, the facts do not support the conclusion that Durand was in custody when she

spoke with the police in the audio-visual room.

       Lastly, with regard to whether the officers manifested a belief concerning Durand’s

potential culpability,

               a consideration of this factor “encompasses the degree to which it
               was conveyed to the suspect that he or she was the focus of a
               criminal investigation,” and it also “includes circumstances such as
               the appearance of probable cause to arrest and the extent to which
               the individual is confronted with evidence of guilt.”

Aldridge, 44 Va. App. at 645, 606 S.E.2d at 552-53 (quoting Harris, 27 Va. App. at 566 n.2, 500

S.E.2d at 262 n.2). The United States Supreme Court noted that it is well settled that

               “a police officer’s subjective view that the individual under
               questioning is a suspect, if undisclosed, does not bear upon the
                                                -5-
               question whether the individual is in custody for purposes of
               Miranda. The same principle obtains if an officer’s undisclosed
               assessment is that the person questioned is not a suspect. In either
               instance, one cannot expect the person under interrogation to probe
               the officer’s innermost thoughts. Save as they are communicated
               or otherwise manifested to the person being questioned, an
               officer’s evolving but unarticulated suspicions do not affect the
               objective circumstances of an interrogation or interview, and thus
               cannot affect the Miranda custody inquiry.

                        An officer’s knowledge or beliefs may bear upon the
               custody issue if they are conveyed, by word or deed, to the
               individual being questioned. Those beliefs are relevant only to the
               extent they would affect how a reasonable person in the position of
               the individual being questioned would gauge the breadth of his or
               her “‘freedom of action.’” Even a clear statement from an officer
               that the person under interrogation is a prime suspect is not, in
               itself, dispositive of the custody issue, for some suspects are free to
               come and go until the police decide to make an arrest. The weight
               and pertinence of any communications regarding the officer’s
               degree of suspicion will depend upon the facts and circumstances
               of the particular case.”

Aldridge, 44 Va. App. at 646, 606 S.E.2d at 553 (quoting Stansbury, 511 U.S. at 324-25).

       Here, the record shows that Detective Dempsey questioned Durand pertaining to the

possibility of her involvement in a child neglect case. While they had suspicions about the facts

surrounding the situation, they did not convey to Durand that they had any evidence of her

committing a crime. The record also does not suggest that the detectives were certain or even

had probable cause that Durand was responsible for Anthony’s death before she made the

incriminating statements in the audio-visual room. During the interview they informed her that

her statements were inconsistent with the evidence that they had. At no time in the interview did

they communicate to Durand that they believed she was guilty of Anthony’s death, nor did they

communicate to her that they thought the interview would lead to her arrest. Even though she

made a statement that she covered Anthony’s mouth with a sheet, a reasonable person would not

automatically believe that their freedom of movement was immediately restricted upon making



                                                -6-
that statement. They informed her at the outset that she was free to leave and not under arrest,

and did not convey at any point that those facts had changed.

       This case is similar to the situation in Aldridge, in which this Court held that the trial

court properly denied the motion to suppress Aldridge’s confession because the police acted

properly due to the fact that she was not in custody at the time she made the statements, nor was

her freedom of movement restricted until after she made the incriminating statements. 44

Va. App. at 647, 606 S.E.2d at 553. Specifically, this Court stated that “although Detective

Huffman agreed that he viewed Aldridge as a potential suspect before the interview began, the

record does not suggest that the detectives were certain as to Aldridge’s culpability before her

initial incriminating statement.” Id.

       Based on the totality of the evidence, we hold that Durand was not in custody at the time

she made the incriminating statements in the audio-visual room because she was not under

formal arrest nor was her freedom of movement restricted. Therefore, the detectives were not

required to advise Durand of her Miranda rights. Thus, the trial court did not err in denying the

motion to suppress Durand’s statements made in the audio-visual room.

                 B. Motion to Strike the Charge from Murder to Voluntary Manslaughter

       Durand also contends that the trial court erred in denying the motion to strike the charge

of murder to voluntary manslaughter, arguing that the evidence was insufficient to support a

finding by the jury of second-degree murder. The evidence presented at trial supported a

“rational trier of fact’s” conclusion that Durand committed second-degree murder by maliciously

suffocating Anthony who died as a result of the suffocation. Therefore, the trial court did not err

in denying the motion to strike, and we affirm the conviction.

       When the sufficiency of the evidence is challenged on appeal, ‘“we presume the

judgment of the trial court to be correct’ and ‘will not set it aside unless it is plainly wrong or

                                                 -7-
without evidence to support it.’” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,

876-77 (2002) (quoting Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992);

Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986)); Code § 8.01-680. We do

not “substitute our judgment for that of the trier of fact.” Wactor v. Commonwealth, 38

Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Practically speaking, this means a jury’s

decision cannot be disturbed on appeal unless no ‘rational trier of fact’ could have come to the

conclusion it did.” Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12-13 (2004)

(citing Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)).

        The reviewing court, under this standard, does not “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

307, 318-19 (1979) (emphasis in original and citation omitted). Instead, the reviewing court asks

whether “any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319 (emphasis in original). “This familiar standard

gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

        In reviewing the sufficiency of the evidence to support a conviction, “we determine

whether the evidence, viewed in the light most favorable to the prevailing party, the

Commonwealth, and the reasonable inferences fairly deducible from that evidence support each

and every element of the charged offense.” Haskins v. Commonwealth, 31 Va. App. 145,

149-50, 521 S.E.2d 777, 779 (1999). “[W]hen we consider the sufficiency of the evidence we do

not consider each piece of evidence in isolation. Instead, we review the totality of the evidence

to determine whether it was sufficient to prove an offense.” Bowling v. Commonwealth, 51

Va. App. 102, 107, 654 S.E.2d 354, 356 (2007) (citing Commonwealth v. Duncan, 267 Va. 377,

385, 593 S.E.2d 210, 215 (2004)).

                                                  -8-
       In Virginia, a homicide is presumed to be second-degree murder. Code § 18.2-32; Willis

v. Commonwealth, 10 Va. App. 430, 443, 393 S.E.2d 405, 412 (1990). In order to convict an

individual of second-degree murder, the defendant must have acted with malice. See Canipe v.

Commonwealth, 25 Va. App. 629, 642, 491 S.E.2d 747, 753 (1997). “Malice inheres in the

doing of a wrongful act intentionally, or without just cause or excuse, or as a result of ill will. It

may be directly evidenced by words, or inferred from acts and conduct which necessarily result

in injury.” Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947). “Implied

malice may be inferred from ‘conduct likely to cause death or great bodily harm, wilfully or

purposefully undertaken.’” Canipe, 25 Va. App. at 642, 491 S.E.2d at 753 (quoting Essex v.

Commonwealth, 228 Va. 273, 281, 322 S.E.2d 216, 220 (1984)).

       “Whether or not an accused acted with malice is generally a question of fact and may be

proved by circumstantial evidence.” Id. “In making the determination whether malice exists, the

fact-finder must be guided by the quality of the defendant’s conduct, its likelihood of causing

death or great bodily harm, and whether it was volitional or inadvertent . . . .” Essex, 228 Va. at

282, 322 S.E.2d at 221.

       Manslaughter is “the unlawful killing of another without malice.” Canipe, 25 Va. App. at

642-43, 491 S.E.2d at 753 (citing Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190,

192 (1986) (citation omitted)). “To reduce a homicide from murder to voluntary manslaughter,

the killing must have been done in the heat of passion and upon reasonable provocation.”

Barrett, 231 Va. at 105-06, 341 S.E.2d at 192 (citing Martin v. Commonwealth, 184 Va. 1009,

1016-17, 37 S.E.2d 43, 46 (1946)). “Malice and heat of passion are mutually exclusive; malice

excludes passion, and passion presupposes the absence of malice.” Id. at 106, 341 S.E.2d at 192

(citations omitted). “Heat of passion” occurs when “the furor brevis . . . renders a man deaf to

the voice of reason.” Hannah v. Commonwealth, 153 Va. 863, 870, 149 S.E. 419, 421 (1929).

                                                 -9-
       Here, Durand’s conduct shows that she willfully undertook an act that would likely cause

death or great bodily harm without reasonable provocation. She told the detectives that Anthony

had been screaming and crying and she could not figure out why. Then, after she picked him up

and put him back down she could not take it anymore and for at least two minutes she

intentionally placed her hand and a sheet over Anthony’s mouth until he stopped moving. She

then returned him to the crib, placed a pacifier in his mouth, and left him alone without checking

whether he was breathing. The action of placing the sheet over his mouth and holding it there

for two minutes was malicious.

       Durand asserts that she acted out of heat of passion, yet nothing in the record supports

this assertion. Her conduct was not done in self-defense, nor was she provoked by Anthony.

Anthony was a ten-(10)-month-old child who was helpless against an adult and dependent upon

his parents for care. Her actions in placing the sheet over his mouth and holding it there would

necessarily result in an injury and was an action taken of her own volition. In addition, the

expert testimony indicated that Anthony’s death was caused by asphyxiation, and Durand’s

conduct before and after Anthony was removed from life support showed her indifference to

Anthony’s care. Lastly, the medical records show that prior to the events on August 10, 2006,

Anthony had three visits to the doctor showing signs of asphyxiation, had been given an apnea

monitor to inform Durand of when he stopped breathing that was not used, and prescribed

Tegretol for seizures that was not given as prescribed.

       In looking at the totality of the evidence, a rational trier of fact could conclude beyond a

reasonable doubt that Durand’s actions constituted the crime of second-degree murder. The

jury’s verdict was not plainly wrong or without evidence to support it. Therefore, this Court will

not set aside the judgment and affirms the conviction.




                                               - 10 -
                 C. Sufficiency of Evidence to Corroborate Durand’s Confession

       Finally, Durand contends that the trial court erred in finding that there was sufficient

evidence on the record to corroborate Durand’s “confession.” 1 However, this issue was not

properly raised at trial and is not properly before this Court.

       “No ruling of the trial court . . . will be considered as a basis for reversal unless the

objection was stated together with the grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends of justice.” Rule 5A:18. The

purpose of “‘Rule 5A:18 is to alert the trial judge to possible error so that the judge may consider

the issue intelligently and take any corrective actions necessary to avoid unnecessary appeals,

reversals and mistrials.’” Neal v. Commonwealth, 15 Va. App. 524, 530, 414 S.E.2d 401, 404

(1992) (quoting Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992)).

                       “The ends of justice exception is narrow and is to be used
               sparingly,” and only when a trial court error is “clear, substantial
               and material.” Brown v. Commonwealth, 8 Va. App. 126, 132,
               380 S.E.2d 8, 11 (1989). “In order to avail oneself of the
               exception, a defendant must affirmatively show that a miscarriage
               of justice has occurred, not that a miscarriage might have
               occurred.” Id. (citing Mounce v. Commonwealth, 4 Va. App. 433,
               436, 357 S.E.2d 742, 744 (1987)). “In examining a case for
               miscarriage of justice, we do not simply review the sufficiency of
               the evidence under the usual standard, but instead determine
               whether the record contains affirmative evidence of innocence or
               lack of a criminal offense.” Lewis v. Commonwealth, 43 Va. App.
               126, 134, 596 S.E.2d 542, 546 (2004), rev’d on other grounds, 269
               Va. 209, 608 S.E.2d 907 (2005). See also Michaels v.
               Commonwealth, 32 Va. App. 601, 529 S.E.2d 822 (2000), Redman
               v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272
               (1997).

Tooke v. Commonwealth, 47 Va. App. 759, 764-65, 627 S.E.2d 533, 536 (2006).




       1
          At oral argument, counsel for Durand conceded that he was actually arguing that the
trial court erred in admitting Durand’s confession in the absence of the corpus delecti of the
crime being established.
                                               - 11 -
       Durand’s argument that the evidence was not sufficient to corroborate her confession is

not properly before this Court because it was not raised in the trial court. Although appellant

asks this Court to apply the ends of justice exception, the application of this exception is not

warranted here because the record does not show “‘affirmative evidence of innocence or lack of

a criminal offense.’” Id. at 765, 627 S.E.2d at 536 (citing Lewis, 43 Va. App. at 134, 596 S.E.2d

at 546).

       For the foregoing reasons, we hold that Durand was not in custody at the time she made

the incriminating statements in the audio-visual room and affirm the denial of the motion to

suppress her statements. We also affirm her conviction for second-degree murder because, based

on the totality of the evidence, a rational trier of fact could conclude beyond a reasonable doubt

that Durand’s actions constituted the crime of second-degree murder. Lastly, we find that

Durand’s argument that there was insufficient evidence to corroborate her “confession” was not

properly preserved and, because the “ends of justice” exception is not applicable, this issue is not

properly before this Court.

                                                                                           Affirmed.




                                               - 12 -
