                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Decker and Russell
              Argued at Chesapeake, Virginia


              JORDAN DIANGELO CHAMPION
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1596-16-1                                    CHIEF JUDGE GLEN A. HUFF
                                                                                 OCTOBER 24, 2017
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                           H. Thomas Padrick, Jr., Judge

                               Taite A. Westendorf, Senior Assistant Public Defender, for
                               appellant.

                               Benjamin H. Katz, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Jordan Diangelo Champion (“appellant”) appeals his convictions of first-degree murder,

              in violation of Code § 18.2-32; use of a firearm in the commission of a felony, in violation of

              Code § 18.2-53.1; and conspiracy to commit a felony, in violation of Code § 18.2-22. Appellant

              filed a pretrial motion to suppress statements made to law enforcement in the Circuit Court of the

              City of Virginia Beach (“trial court”). Following the trial court’s denial of this motion, appellant

              entered a conditional guilty plea to the charges reserving the right to challenge the denial on

              appeal. The trial court accepted this plea and convicted appellant of the offenses, sentencing him

              to life imprisonment for the murder, ten years’ imprisonment for the conspiracy, and three years’

              imprisonment for the use of a firearm in the commission of a felony. Pursuant to the terms of the

              conditional plea agreement, appellant raises two assignments of error challenging the denial of

              his motion to suppress:


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               1.   The trial court erred in denying appellant’s motion to suppress
                    his statements to police because the Commonwealth did not
                    carry their burden of proving that appellant knowingly,
                    intelligently, and voluntarily waived his Miranda rights.

               2.   The trial court erred in denying appellant’s motion to suppress
                    his post-Miranda statements because the police employed a
                    deliberate “two step” or bifurcated interrogation strategy and
                    the midstream Miranda warnings were ineffective and
                    deprived the appellant of the knowledge essential to his ability
                    to understand the nature of his rights and the consequences of
                    abandoning them.

For the reasons that follow, this Court affirms the trial court’s ruling.

                                        I. BACKGROUND

       “When reviewing a denial of a motion to suppress evidence, an appellate court considers

the evidence in the light most favorable to the Commonwealth and will accord the

Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.”

Branham v. Commonwealth, 283 Va. 273, 279, 720 S.E.2d 74, 77 (2012) (citing Sidney v.

Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010)). In doing so, this Court

“consider[s] facts presented both at the suppression hearing and at trial.” Testa v.

Commonwealth, 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009). So viewed, the evidence is

as follows.

       Virginia Beach police responded to a report of gunfire at the 5900 block of Clear Springs

Court on the evening of October 29, 2013. There they found Kristopher Lee (“Lee”) suffering

from multiple gunshot wounds, from which he later died. Investigators recovered physical

evidence, including clothing and a firearm, from the scene and gathered reports from witnesses

that connected appellant, Dau-Shawn Newton (“Newton”), and Cartrell Taylor (“Taylor”) to

Lee’s death. As the investigation progressed, Detectives J.K. Cole (“Cole”) and T.M. Jones

(“Jones”) interviewed Newton and Taylor, who provided information about the events leading up

to the shooting. The detectives learned that Lee’s girlfriend, a woman identified only as “La
                                                 -2-
La,” had been in communication with Newton, and they suspected she was responsible for luring

Lee to the scene where he was ambushed. They also determined that appellant and La La were

“pretty close.” Based on their investigation, the detectives identified appellant as their primary

suspect for Lee’s murder.

       Cole and Jones drove to appellant’s house on November 7, 2013. They arrived in plain

clothes and in an unmarked car. When appellant met them on the front porch, the detectives

identified themselves as police officers and told appellant that they wished to talk with him about

“some things that had been happening in the neighborhood.” They asked if appellant would be

willing to come with them to their office to do so, and appellant agreed. They left for police

headquarters with appellant sitting in the front passenger seat. The vehicle’s doors were

unlocked and, except for a seatbelt, appellant remained unrestrained throughout the journey. As

they traveled, the detectives reiterated their understanding that appellant’s cooperation was

voluntary and that “he did not have to speak with [the detectives] at any time.”

       Upon arrival, the detectives brought appellant into an interview room where the entire

interview, which began at 6:22 p.m., was recorded on video. Cole offered appellant water and a

bathroom break before beginning the interview, and at appellant’s request, he kept the door to

the interview room partially open. Cole then expressed his appreciation for appellant’s

willingness to talk with the detectives and asked him whether he was still willing to talk with

them. Appellant confirmed that he was willing, saying, “yeah, no problem, no problem.”

       The interview had two distinct phases. The first phase lasted approximately one hour and

consisted of the detectives’ efforts to build a rapport with appellant and learn what appellant

knew about recent conflicts in his neighborhood. Appellant mentioned that “the big event that

happened out there was when the dude got murdered out there and that’s the only thing I heard.”

Appellant clarified that he only knew what the news had reported when Cole asked what

                                                -3-
appellant had heard about Lee’s death. Cole then asked where appellant had been when Lee was

shot, and appellant said he was in the home of a friend named Bryan located in the Ipswich

neighborhood of Chesapeake. As the first hour of the interview drew to a close, Cole explained

that the information appellant had shared was inconsistent with what he had learned from

previous interviews with Newton, Taylor, and other witnesses, as well as evidence such as

telephone records. He informed appellant that based on the evidence, he suspected appellant had

killed Lee. Cole then told appellant, “[y]ou’re not leaving here tonight.”

       After leaving the room for around ten minutes, the detectives returned and the following

exchange occurred:

               [Cole]:      I’m going to advise you of your legal rights real
                            quick. Have you ever had these read to you before?
               [Appellant]: No.
               [Cole]:      Okay. I’m going to read them to you, all right? You
                            have the right to remain silent. Anything you say can
                            be used against you in court. You have the right to
                            talk to a lawyer and have him present with you while
                            you’re being questioned. If you cannot afford to hire
                            a lawyer, one will be appointed to represent you
                            before any questioning; if you wish. You can decide
                            at any time to exercise these rights and not answer
                            any questions or make any statements. Do you
                            understand?
               [Appellant]: (Shakes head affirmatively)
               [Cole]:      Is that a yes?
               [Appellant]: (Shakes head affirmatively) Mm-hmm.

Cole told appellant he could not leave and advised him of his Miranda rights just over one hour

into the interview. This exchange marked the beginning of the second phase of the interview,

which lasted approximately five additional hours.

       Cole opened the second phase by revealing the information police had gathered during

their investigation, including detailed maps of appellant’s movements leading up to the shooting,

then asked whether appellant was in Ipswich during the shooting as he had earlier claimed.

Appellant maintained that he had been in Ipswich and took no part in the shooting. After the
                                               -4-
detectives presented appellant with his own telephone records, however, appellant changed his

narrative and recounted the route by which he, Newton, and Taylor arrived at the scene that

night. When Jones raised the possibility of executing a search warrant at appellant’s home that

night to search for a firearm, clothing, and appellant’s cell phones, appellant admitted that the

pistol the police already recovered was the one he used to shoot Lee and that the jacket it was

inside belonged to him as well. Appellant eventually confessed to shooting Lee multiple times,

but did not provide any additional information regarding La La’s role or explain how he knew

where to find Lee on the night of the murder.

       As the interview concluded, Cole offered appellant the opportunity to call his family:

               Hello. Wassup Dad? It’s true, Dad—It’s true. It’s true, Dad.
               Yeah. Yeah, Dad. I know, I know. . . . I know ya’ll are
               disappointed and all that. I know ya’ll is. I disobeyed you. I did
               everything you told me not to do, but I did it anyway. I said I’m
               sorry. I did everything I wasn’t supposed to do and I ended up
               doing it anyway—staying out of trouble and I’m sorry that I
               disappointed you and Mama. . . . I know what I did. Dad, no
               matter what I did I gotta, I just gotta, I just pay the sacrifice. I’m
               sorry. It is. It’s a lot, Dad. . . . I’m sorry, Dad. You didn’t do
               nothing, Dad. It was all me. Nah, nobody forced me. I’m sorry
               Dad. I gotta give the phone back, I just wanted to let ya’ll know
               that. I love ya’ll.

The interview concluded at 12:53 a.m. on November 8, 2013. At no point during the interview

did appellant attempt to invoke his right to silence or counsel or otherwise reference the Miranda

warnings he had received.

       Prior to trial, appellant submitted a motion to suppress all statements made to the

detectives during the November 7, 2013 interview, contending that the entire interview was

custodial and therefore the initial portion prior to the Miranda warnings contaminated the entire

interview. During the evidentiary hearing, the Commonwealth called Cole to recount the events

of the interview. On cross-examination, counsel for appellant challenged Cole’s use of the

phrase “real quick” in introducing the Miranda warnings as being a rhetorical device to minimize
                                                -5-
their importance. Cole testified that despite saying “real quick,” he in fact “slowed down very

much so and articulated very well so that [appellant] understood and could clearly understand

and comprehend each one of his rights.” The Commonwealth then rested.

         The defense called James Champion, appellant’s father, who testified that appellant had

been in special education classes from his early school days through high school. Champion

further noted that appellant “had a hard time understanding, comprehending things,” but said that

“[o]nce he caught on to what his teacher was saying, he understood.” During cross-examination,

Champion testified that appellant had graduated high school with a general diploma. He also

testified that he received a phone call from appellant in the early morning hours of November 8

in which appellant acknowledged that he had committed the crime and understood what he was

doing.

         After hearing the evidence and reviewing supplemental briefing, the trial court denied

appellant’s motion to suppress. In so ruling, the trial court found that appellant was not in

custody for Miranda purposes until the second phase of the interview, when Cole informed

appellant he was not free to leave and read him the Miranda warnings. The trial court observed

that although there was no written Miranda waiver in this case, Cole advised appellant of the

Miranda rights and then took “the extra step or steps to make sure that he understood [them]”

and noted that “that’s clearly shown on the video.” The trial court then ruled that the

Commonwealth had carried its burden of proving that appellant knowingly, intelligently, and

voluntarily waived his Miranda rights and that “the interrogation interview that occurred after

that as it continued was appropriate under the circumstances.” This appeal followed.

                                  II. STANDARD OF REVIEW

         “On appeal, the burden rests with appellant to show that the denial of his suppression

motion constituted reversible error.” Kuhne v. Commonwealth, 61 Va. App. 79, 86, 733 S.E.2d

                                                -6-
667, 670 (2012) (quoting Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145

(2008)). This 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.’” Id. (quoting Commonwealth v. Hilliard, 270 Va. 42, 49-50,

613 S.E.2d 579, 584 (2005)). In contrast, “the trial court’s application of defined legal standards

to the particular facts of a case” is subject to de novo review. Robinson v. Commonwealth, 63

Va. App. 302, 310, 756 S.E.2d 924, 927 (2014) (quoting Cary v. Commonwealth, 40 Va. App.

480, 486, 579 S.E.2d 691, 694 (2003)).

        “The 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 on appeal to a

presumption of correctness.” Rodriguez v. Commonwealth, 40 Va. App. 144, 155-56, 578

S.E.2d 78, 83 (2003) (quoting Harrison v. Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160,

163 (1992)). The trial court’s conclusion as to whether a waiver of Miranda rights was knowing

and intelligent “must be based on the totality of the circumstances and ‘will not be disturbed on

appeal unless plainly wrong.’” Id. at 156, 578 S.E.2d at 83 (quoting Watkins v. Commonwealth,

229 Va. 469, 477, 331 S.E.2d 422, 430 (1985)). Whether a statement is voluntary, however, “is

ultimately a legal rather than a factual question, but subsidiary factual decisions are entitled to a

presumption of correctness.” Robinson, 63 Va. App. at 310, 756 S.E.2d at 927 (quoting

Rodriguez, 40 Va. App. at 155, 578 S.E.2d at 83). Thus this Court is also bound by the trial

court’s subsidiary factual findings unless they are plainly wrong. Wilson v. Commonwealth, 13

Va. App. 549, 551, 413 S.E.2d 655, 656 (1992).




                                                 -7-
                                          III. ANALYSIS

       On appeal, appellant argues that he did not knowingly, intelligently, and voluntarily

waive his Miranda rights and that the detectives deliberately used an impermissible two-step

interrogation strategy that undermined the Miranda warnings.

                                        A. Miranda waiver

       The well-known warnings that police must give to criminal suspects in custody prior to

interrogation were developed by the United States Supreme Court in order to “assure that the

individual is accorded his privilege under the Fifth Amendment to the Constitution not to be

compelled to incriminate himself.” Miranda v. Arizona, 384 U.S. 436, 439 (1966). In order to

enforce the Miranda protections, that Court created an exclusionary rule covering unwarned

statements: “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.

       As with other constitutional rights, an accused may waive his or her privilege against

self-incrimination and right to counsel “provided the waiver is made voluntarily, knowingly, and

intelligently.” Bradshaw v. Commonwealth, 228 Va. 484, 489, 323 S.E.2d 567, 570 (1984).

“Assessing whether a confession is voluntary requires an examination of the totality of the

circumstances to determine whether the statement is the ‘product of an 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.”’ Rodriguez, 40 Va. App. at 157, 578 S.E.2d

at 84 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)). In determining whether

the waiver of Miranda was knowing, intelligent, and voluntary, this Court “must consider both

‘the details of the interrogation’ and ‘the characteristics of the accused.’” Id. (quoting

Kauffmann v. Commonwealth, 8 Va. App. 400, 405, 382 S.E.2d 279, 281 (1989)). “Proof of

                                                -8-
‘coercive police activity is . . . a necessary predicate to a finding that a waiver of Miranda rights

is not voluntary.’” Id. at 157, 578 S.E.2d at 83 (quoting United States v. Cristobal, 293 F.3d 134,

141 (4th Cir. 2002)).

       Appellant contends that the manner in which the detectives brought him to headquarters,

the length of the interrogation before providing warnings, his education level and unfamiliarity

with the criminal justice system, the way the detectives administered the Miranda warnings, and

alleged threats made by the detectives against his family are evidence that appellant’s confession

was not voluntary. Importantly, appellant does not assign error to the trial court’s finding that

appellant was not in police custody for Miranda purposes until the second phase of the interview.

“[T]he protection afforded by Miranda applies only when a suspect is subjected to custodial

interrogation.” Webber v. Commonwealth, 26 Va. App. 549, 557, 496 S.E.2d 83, 87 (1998)

(emphasis added). Because it is unchallenged, the trial court’s ruling as to when appellant began

to be in custody is binding on this Court. As such, appellant’s arguments that the detectives used

subterfuge to lure appellant into coming to headquarters and that the detectives improperly

interviewed appellant for over an hour before providing warnings, both of which are premised on

the notion that the detectives were obligated to provide Miranda warnings to appellant before

they actually did, are waived. See Rule 5A:12(c)(1)(i) (“Only assignments of error assigned in

the petition for appeal will be noticed by this Court.”); Harlow v. Commonwealth, 195 Va. 269,

271, 77 S.E.2d 851, 853 (1953) (“The purpose of assignments of error is to point out the errors

with reasonable certainty in order to direct this court and opposing counsel to the points on

which appellant intends to ask a reversal of the judgment, and to limit discussion to these

points.” (emphasis added)).




                                                 -9-
       According due weight to the trial court’s factual findings in this fact-intensive inquiry,

this Court concludes upon a review of appellant’s remaining contentions that appellant

knowingly, intelligently, and voluntarily waived his Miranda rights.

                                    1. Personal Characteristics

       The record reveals that appellant sufficiently understood his situation and chose to

continue speaking with police. “In cases involving defendants with low intellectual ability, the

knowingness of the waiver often turns on whether the defendant expressed an inability to

understand the rights as they were recited.” United States v. Robinson, 404 F.3d 850, 861 (4th

Cir. 2005). Although appellant’s father testified that appellant had taken special education

classes, he also indicated that appellant was capable of understanding the concepts he was taught

and that he graduated with a general diploma. Further, despite appellant’s inexperience with the

criminal justice system, appellant maintained that he understood what had happened and

accepted responsibility for what he had done during the telephone call with his father. At no

point did appellant indicate that he was confused by Cole’s warnings or what was happening in

the interrogation. The evidence thus supported the trial court’s finding that appellant fully

understood his Miranda rights.

                              2. Minimization of Miranda Warnings

       Appellant further argues that by prefacing the Miranda rights with the phrase “real quick”

and not using a written Miranda waiver form, the detectives minimized the import of the

warnings and induced appellant to waive his rights. “A valid waiver of Miranda rights does not

require the waiver to be in writing.” Jackson v. Commonwealth, 266 Va. 423, 432, 587 S.E.2d

532, 540 (2003). Detective Cole testified that although he used the words “real quick” in

transitioning to the Miranda warnings, he actually read them slowly and articulated clearly to

make sure appellant understood his rights. The trial court credited this testimony, finding that

                                               - 10 -
Cole fully advised appellant of his Miranda rights and that appellant then waived them.

Although the trial court observed that the detectives did not use a written waiver form in this

case, it also noted that “of course, Miranda does not require that the form be used.” Accordingly,

the evidence also supported the trial court’s conclusion that the phrase “real quick” and lack of a

written waiver did not prevent appellant from knowingly and intelligently waiving his rights.

                                        3. Alleged Threats

       Appellant lastly argues that the detectives coerced appellant’s confession by threatening

to “execute a search warrant at his parents’ home in the middle of the night” and suggesting that

his “parents could be handcuffed in the street” if he refused to confess. This characterization

misconstrues the detectives’ statements.

       A confession’s validity “is not equated with the absolute absence of intimidation.” Hill v.

Commonwealth, 52 Va. App. 313, 319, 663 S.E.2d 133, 136 (2008). “Miranda’s prohibition

against threats, trickery or cajolery was not intended to preclude in all circumstances trickery

concerning merely one aspect of the factual strength of the case against the accused.” Wilson, 13

Va. App. at 554, 413 S.E.2d at 658 (quoting Foster v. Commonwealth, 8 Va. App. 167, 175, 380

S.E.2d 12, 16 (1989)). In this case, however, the totality of the circumstances supports a finding

that appellant was not impermissibly threatened into his waiver. See Foster, 8 Va. App. at 175,

380 S.E.2d at 16.

       The record reveals that the “threats” to which appellant refers were merely retrospective

suggestions that the detectives had already been more courteous than necessary to appellant.

Cole said:

               We did you a favor tonight. We came to your house. Could we
               have come in with SWAT and flash bangs—the whole nine yards?
               Could we have? We could have. Instead it was Detective Jones
               and I. . . . Came to you as human beings, okay? We didn’t get into
               it with your family, okay? We saved you that. What you want to
               tell them is your business. You’re a grown adult.
                                               - 11 -
Later in the interview, Cole continued this line of thought:

               I showed you some respect at your house. I’m not rolling up in
               there with a SWAT team and dogs and all this kind of stuff—
               which we very well could have done. But based on who we
               thought you were, your record, all right. We didn’t think this is the
               person that you are. Right now you’re proving me wrong.
               Apparently you are this kind of person. Maybe we should’ve
               rolled up in there with a SWAT team, drug you out and handcuffed
               your parents and all that kind of stuff. How do you think they
               would have liked that? They probably wouldn’t have been too
               happy would they?

These statements, couched in past tense, do not contain affirmative threats to take action against

appellant’s family. They do not promise any sort of illegitimate action, nor do they contain any

deliberate falsehood.

       Later, Jones asked appellant: “The gun recovered in the bushes in the jacket—did you

use that gun to shoot him?—or do I have to get a search warrant for your parent’s house and

wake everybody up to look for it . . . .” This is the only statement made by one of the detectives

that can be interpreted as a potential threat. Even given its intimidating nature, the statement

contains no falsehood and refers only to a legitimate course of police conduct. Compared to

Cole’s retrospective statements, Jones’ reference to a search warrant does not imply any harm

would come to appellant’s parents other than the inconvenience of being awakened. The trial

court thus properly concluded that none of these statements were sufficiently coercive to

overbear appellant’s will.

       Viewed together, the circumstances surrounding appellant’s interrogation did not

undermine his decision to waive his Miranda rights and reveal the information he did. The

record demonstrates that appellant avoided providing the detectives information beyond that

which they already knew. In fact, despite repeated questioning, appellant refused to illuminate

La La’s role in the crime or how he knew where to find Lee on the night of the murder.

Appellant’s steady evasion on these topics demonstrates that neither the duration nor nature of
                                               - 12 -
the interview served to overbear his will or compromise his capacity for self-determination.

Accordingly, this Court holds that the trial court did not err in concluding that appellant

knowingly and intelligently waived his Miranda rights.

                                    B. Two-Step Interrogation

       Appellant next argues that the method by which the detectives interrogated appellant

constituted an impermissible “two-step” strategy designed to undermine the Miranda warnings.

As previously noted, however, appellant does not challenge the trial court’s finding that he was

not in custody for Miranda purposes until the interview’s second phase. Because he was not in

custody during the first phase of the interview, it is of no legal consequence that he had not

received Miranda warnings at that point. See Webber, 26 Va. App. at 557, 496 S.E.2d at 87

(“[T]he protection afforded by Miranda applies only when a suspect is subjected to custodial

interrogation.”). Accordingly, this Court does not reach appellant’s two-step interrogation

argument and holds that, as determined above, appellant’s statements were admissible.

                                       IV. CONCLUSION

       Because the trial court’s denial of the motion to suppress was not error, this Court affirms

appellant’s convictions.

                                                                                          Affirmed.




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