                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Kelsey
Argued at Chesapeake, Virginia


JOSHUA LAMONT FRANKLIN
                                                              MEMORANDUM OPINION * BY
v.      Record No. 2243-06-1                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                    APRIL 15, 2008
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                 Stephen C. Mahan, Judge

                  Suzanne G. Moushegian, Senior Assistant Public Defender (Office
                  of the Public Defender, on brief), for appellant.

                  Benjamin H. Katz, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Joshua Lamont Franklin (appellant) was convicted following a jury trial of first-degree

murder in violation of Code § 18.2-32, and use of a firearm in the commission of murder in

violation of Code § 18.2-53.1. 1 Appellant contends the trial court erred in failing to suppress

statements he gave to police on January 4, 2005, after being read Miranda warnings. We conclude

that the trial court did not err in denying appellant’s pretrial motion to suppress those statements,

which the record shows were made voluntarily, knowingly, and intelligently. Accordingly, we

affirm his convictions.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         An earlier trial on these offenses ended with a mistrial when the jury was unable to
reach a verdict.
                                       I. BACKGROUND

       “On appeal from a denial of a suppression motion, we examine the evidence in the light

most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Barkley

v. Commonwealth, 39 Va. App. 682, 687, 576 S.E.2d 234, 236 (2003). “‘In so doing, we must

discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences that may be

drawn therefrom.’” Washington v. Commonwealth, 43 Va. App. 291, 300, 597 S.E.2d 256, 260

(2004) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).

       So viewed, the evidence established that Detective Gonda of the Virginia Beach Police

Department was assigned to investigate the death of Ian Scarborough resulting from gunshot

wounds. In the course of his investigation, Detective Gonda developed appellant as a suspect in

Scarborough’s murder.

       On January 4, 2005, Detective Gonda asked appellant if he would voluntarily speak with

him at the police station. Appellant agreed to do so. 2 He arranged his own transportation to the

police station, arriving at approximately 1:15 p.m. that day. Once there, appellant was given a

polygraph test. Afterwards, he was taken to an interrogation room where he was informed that

he had failed the test. He was then questioned for approximately five hours by Detectives Gonda

and Coerse. The videotape of the detectives shows that appellant was alert and responsive to the

questions he was asked. After initially aggressively questioning appellant, telling him they

believed he killed Scarborough, calling him a punk and a liar, the detectives moved to a less

aggressive strategy, developed a rapport with appellant, and suggested they thought the shooting

may have been an accident. Appellant stated several times that he wanted to talk to them, but


       2
         Detective Gonda communicated with appellant once in person and once by telephone
before asking him to come to the police station for an interview.

                                               -2-
also told them that he wanted to spend one last night with his family before he provided any

information to the police. Throughout the questioning, Detective Gonda repeatedly advised

appellant he was free to leave. When encouraging appellant to talk, Detectives Gonda and

Coerse made no promises of leniency. Detective Gonda explained to appellant that he could tell

the magistrate that he did not consider appellant a flight risk, but that the magistrate would make

the ultimate decision regarding appellant’s bond. He also advised appellant that the

Commonwealth’s Attorney would make the ultimate decision as to the charges to be brought

against him.

       Around 7:00 p.m., before appellant was given Miranda warnings, Detective Gonda asked

him, “[w]as this an accident?[,]” to which appellant responded, “[y]es.” Detective Gonda then

asked, “[a]re you sorry that you killed [Scarborough]. Are you sorry, Josh?” Appellant again

responded, “[y]es.” When appellant said that he “only went out there to scare [Scarborough],”

Detective Gonda stopped the interrogation, offered appellant a drink, and left the interrogation

room for approximately eight minutes.

       When Detective Gonda returned, he read appellant the Miranda warnings. 3 Appellant

never stated that he understood or waived the Miranda warnings given to him. He told Detective

Gonda that he shot Scarborough, and provided a detailed account of events leading up to and

following the shooting. He insisted that he didn’t intend for any of the shots he fired to hit

Scarborough.

       Before trial, appellant moved to exclude all statements made to Detectives Gonda and

Coerse. Appellant’s motion sought to exclude

                 all evidence, written, oral, and physical, including any statements
                 made by [] [appellant] . . . whether prior or subsequent to his
                 arrest . . . [and] that the Court order any statement or evidence
                 improperly obtained be excluded from any trial of charges brought

       3
           Appellant, age twenty, had a ninth grade education and was able to read and write.
                                                 -3-
               against [] [appellant] as a result of the seizure of such evidence
               and, further, that such improperly obtained evidence not be used
               for any investigative purpose, including obtaining derivative
               evidence . . . .

(Emphasis added). At the suppression hearing, however, appellant asked the trial court to

suppress only the statements made after he was given the Miranda warnings. 4 The trial court

heard Detective Gonda’s testimony. It reviewed the videotape of him giving the Miranda

warnings to appellant, and appellant’s subsequent statements to him. Based on what it heard and

saw, it denied appellant’s motion to suppress any statements made after he received the Miranda

warnings. After reviewing all the evidence presented, the jury convicted appellant of the

first-degree murder of Scarborough and use of a firearm in the commission of that murder.

                                         II. ANALYSIS

            A. Appellant’s Statements Before and After Receiving Miranda Warnings

       Appellant’s only argument to the trial court at the suppression hearing was that the

statements he made after he received the Miranda warnings should have been suppressed.

Appellant now contends, for the first time on appeal, that he was in police custody as soon as he

arrived at the police station and that all statements he made to the detectives, both pre-Miranda

warnings and post-Miranda warnings, should be suppressed. Because appellant failed to argue at

the suppression hearing that his statements made before he received the Miranda warnings

should be suppressed, we only consider whether appellant voluntarily, knowingly, and

intelligently waived his Miranda rights after receiving the Miranda warnings. Commonwealth v.

Hilliard, 270 Va. 42, 53, 613 S.E.2d 579, 586 (2006) (holding that a claim arguably encompassed

in a general, broadly worded motion to suppress, but not specifically articulated in the motion or


       4
          Appellant argued, “[t]he detectives at a minimum should have just asked, Do you
understand those rights? Without that, Judge, what you’ve got here before you, it doesn’t even
rise to an acquiescence to a waiver. So I would ask the court to suppress any of the inculpatory
statements he made after [the Miranda warnings].”
                                                -4-
mentioned in oral argument on the motion is not preserved for appeal), aff’g 43 Va. App. 659,

676-77, 601 S.E.2d 652, 660-661 (2004) (en banc). Moreover, had appellant argued at the

suppression hearing that he was in custody prior to receiving the Miranda warnings and that

those statements made prior to the warnings were not admissible, the Commonwealth would

have had the opportunity to appeal any adverse ruling pursuant to Code § 19.2-398. See

Upchurch v. Commonwealth, 31 Va. App. 48, 53, 521 S.E.2d 290, 292 (1999) (“The

Commonwealth’s right to appeal is an essential component in the process of correcting

misapplications of the law . . . . The justification for the requirement of a pretrial suppression

motion is readily apparent in light of the Commonwealth’s limited right to appeal an adverse

suppression ruling.”).

              B. Voluntary, Knowing, and Intelligent Waiver of Miranda Warnings

       Appellant also argues that his statements should have been suppressed because he did not

make a voluntary, knowing, and intelligent waiver of his Miranda rights before he made

statements to Detectives Gonda and Coerse. We conclude from the record on appeal that

appellant voluntarily, knowingly, and intelligently waived his Miranda rights.

               [T]he inquiry whether a waiver of Miranda rights was made
               knowingly and intelligently is a question of fact and the trial
               court’s resolution of that question is entitled to a presumption of
               correctness . . . . “The court’s determination [of whether a person
               knowingly and intelligently waives his Miranda rights] is a
               question of fact based upon the totality of the circumstances. This
               factual inquiry will not be disturbed on appeal unless plainly
               wrong.” Watkins v. Commonwealth, 229 Va. 469, 477, 331
               S.E.2d 422, 429-30 (1985).

Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992) (internal citation

omitted).

       Here, Detectives Gonda and Coerse questioned appellant for some time before Detective

Gonda asked, “[w]as this an accident? . . . [a]re you sorry that you killed [Scarborough]? Are


                                                -5-
you sorry, Josh?” to which appellant responded “[y]es.” When appellant began to explain that he

“only went out there to scare him,” Detective Gonda stopped the interrogation, and stated, “hey

Josh before we get into that let me do this okay, let me make you a photocopy of this, and I’ll

bring it back, and I will bring you back in a drink.” 5 He told appellant he would be back in a few

minutes and offered him a drink. Approximately eight minutes later, and before Detective

Gonda resumed the interrogation, he told appellant

               This is what I’m gonna do. Okay. I want to get you to your folks’
               house, so you can see them. Okay. All right. I want to find out
               exactly what you’re gonna tell me for real. All right. Before I do
               that[,] I’m gonna read you your rights. I’m gonna start setting
               things up, okay, to talk with your folks.

(Emphasis added). The videotape, made part of the record, shows that Detective Gonda read the

Miranda warnings to appellant from an index card that contained all of the warnings required by

Miranda. 6 While the record reveals that Detective Gonda never specifically asked appellant if he

understood his Miranda rights, “Miranda does not require a waiver to be in writing or verbalized

expressly.” Id. at 582, 423 S.E.2d at 163.

               “The question is not one of form, but rather whether the defendant
               in fact knowingly and voluntarily waived the rights delineated in
               the Miranda case. As was unequivocally said in Miranda, mere
               silence is not enough. That does not mean that the defendant’s
               silence, coupled with an understanding of his rights and course of
               conduct indicating waiver, may never support a conclusion that a
               defendant has waived his rights. The courts must presume that a
               defendant did not waive his rights; the prosecution’s burden is
               great; but in at least some cases waiver can be clearly inferred from
               the actions and words of the person interrogated.”


       5
          Detective Gonda’s statement refers to a photocopy of a note Detective Coerse wrote
promising appellant that he would be allowed to visit his parents and that Detective Gonda
would tell the magistrate he found appellant to be remorseful and did not consider him to be a
flight risk.
       6
         See Barkley, 39 Va. App. at 694, 576 S.E.2d at 240 (Merely “giving the[] [Miranda]
warnings does not necessarily place the individual ‘in custody’ at the level of restraint associated
with formal arrest.” (citing Davis v. Allsbrooks, 778 F.2d 168, 172 (4th Cir. 1985))).
                                               -6-
Id. (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). As soon as Detective Gonda

finished reading the Miranda warnings to appellant, he said,

               There’s a few things I need to do, and then I’ll come back in here.
               Do you want to swallow [the water appellant was drinking] so I
               can bring you some more? No, okay. Do you need to use the
               bathroom at all? You do? Is that a yes?

Appellant then left the interrogation room to go to the bathroom. When he returned, he provided

a detailed explanation of his shooting Scarborough.

       Here, the record supports the trial court’s factual findings that appellant understood the

Miranda rights read to him and that he made a voluntary, knowing, and intelligent decision to

waive those rights. The record further shows that several times during the interview, prior to his

being given the Miranda warnings, appellant stated that he wanted to talk to the detectives about

the shooting, but did not want to talk at that time because he wanted to spend one last night with

his family. Detective Gonda confirmed to appellant that if he told them he killed Scarborough,

he would probably not be allowed to spend the night at home. Detective Gonda nevertheless

encouraged appellant to talk, telling him that cooperating with the police was one way he could

show the magistrate and Commonwealth’s Attorney that he was remorseful for what happened.

Detective Gonda also explained that, regardless of what appellant told him, he would take

appellant home to “talk with [his] folks” before taking him to the magistrate. 7 When appellant

initially admitted he shot Scarborough, Detective Gonda stopped him from making any further

statements until after he had been advised of his Miranda rights. It is clear from Detective

Gonda’s warnings that appellant understood that once he provided details of the shooting, his

freedom would be restricted to a ‘“degree associated with formal arrest,’” and he would not be


       7
         Following appellant’s arrest, Detective Gonda took appellant home to visit his family
before taking him to the magistrate. Detective Gonda also told the magistrate he did not consider
appellant a flight risk and recommended the magistrate consider a personal recognizance bond
for him.
                                               -7-
permitted to spend one last night with his family. Aldridge v. Commonwealth, 44 Va. App. 618,

642, 606 S.E.2d 539, 551 (2004) (quoting Harris v. Commonwealth, 27 Va. App. 554, 564, 500

S.E.2d 257, 262 (1998)). Nevertheless, appellant readily answered Detective Gonda’s questions

and did not invoke his Miranda rights. Viewing the totality of the circumstances, we cannot

conclude the trial court’s factual findings that appellant voluntarily, knowingly, and intelligently

waived his Miranda rights, and understood the consequences of waiving those rights, were

plainly wrong at the time he described the details of the shooting to Detectives Gonda and

Coerse.

                                        III. CONCLUSION

       From our review of the record, we conclude that the trial court did not err in finding the

Commonwealth satisfied its burden in proving the statements appellant made, after being given the

Miranda warnings, were freely and voluntarily given and that appellant knew and understood the

consequences of waiving his Miranda rights. Therefore, we conclude that the trial court did not err

in denying appellant’s motion to suppress the inculpatory statements he made after receiving the

Miranda warnings and admitting those statements at trial. Accordingly, we affirm appellant’s

convictions.

                                                                                      Affirmed.




                                                -8-
