                     COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia


ROY LAWRENCE LATTA, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 1349-01-2                 JUDGE G. STEVEN AGEE
                                           SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
                    William L. Wellons, Judge

          Buddy A. Ward, Public Defender (Robert R.
          Meeks, Senior Assistant Public Defender, on
          brief), for appellant.

          John H. McLees, Senior Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Roy Lawrence Latta, Jr. (Latta), was convicted in the

Lunenburg County Circuit Court of possession of cocaine with

intent to distribute, in violation of Code § 18.2-248, and

possession of marijuana with intent to distribute, in violation

of Code § 18.2-248.1(a)(1).   Latta was sentenced to serve a term

of twenty-three months incarceration.   On appeal, Latta contends

the trial court erred by (1) denying the motion to suppress his

confession and (2) finding the Commonwealth's evidence




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sufficient for conviction.    For the following reasons we affirm

the judgment of the trial court. 1

                       I.   MOTION TO SUPPRESS

     Latta contends the trial court erred by denying his motion

to suppress the confession he made after his arrest in which he

admitted that he knowingly possessed the cocaine and marijuana

(the narcotics) discovered in a search of his home.   Latta

contends the trial court should have suppressed his confession

because (1) he was subjected to interrogation after he invoked

his right to counsel and (2) his confession was a result of

coercion.   We disagree and hold the trial court properly denied

the motion to suppress.

     On appeal from a trial court's ruling on a motion to

suppress

            [w]e view the evidence in the light most
            favorable to the prevailing party, [the
            Commonwealth in this case,] granting to it
            all reasonable inferences fairly deducible
            therefrom. We review the trial court's
            findings of historical fact only for "clear
            error," but we review de novo the trial
            court's application of defined legal
            standards to the particular facts of a case.

Harris v. Commonwealth, 27 Va. App. 554, 561, 500 S.E.2d 257,

260 (1998).   So viewed, the evidence supports the trial court's




     1
       As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
                              - 2 -
findings that Latta, having waived his Miranda rights, did not

invoke his right to counsel and his confession was not coerced.

              A.   MIRANDA WAIVER AND RIGHT TO COUNSEL

     Prior to the search of his home, Latta was advised of his

Miranda rights and signed a written waiver.   Upon discovery of

the drugs and his arrest, Latta was twice advised orally of his

Miranda rights.    Yet again, upon arrival at the police station,

Latta received two more Miranda warnings and signed two

additional written waivers.

     It is clear that the arresting officers repeatedly informed

Latta of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), and that Latta waived those rights prior to making his

confession.   If, however, Latta invoked his right to have

counsel present during his interrogation, "a valid waiver of

this right cannot be established . . . even if he has been

advised of his rights."    Quinn v. Commonwealth, 25 Va. App. 702,

711, 492 S.E.2d 470, 475 (1997) (citing Edwards v. Arizona, 451

U.S. 477, 484 (1981); Eaton v. Commonwealth, 240 Va. 236, 252,

397 S.E.2d 385, 395 (1990); Hines v. Commonwealth, 19 Va. App.

218, 221, 450 S.E.2d 403, 404 (1994)).

     Latta contends he was subjected to interrogation after he

invoked his right to counsel and any waiver of that right is

invalid.   We find no support in the record for this contention.

We find that Latta, having waived his Miranda rights, did not


                                - 3 -
invoke his right to have counsel present and he voluntarily

waived his Miranda rights.

     The invocation of the right to counsel must be clear and

unequivocal.   Davis v. United States, 512 U.S. 452, 458-60

(1994); Midkiff v. Commonwealth, 250 Va. 262, 266, 462 S.E.2d

112, 115 (1995) (assertion must be "clear and unambiguous");

Eaton, 240 Va. at 253-54, 397 S.E.2d at 395-96 (holding that a

suspect must assert his right to counsel clearly).   Latta

contends he invoked his right to counsel when he informed

Officer Vaughan that he was calling his lawyer while seated in

the police car.   However, the trial court found that Latta did

not complete this call and never advised any officer that he

wanted to speak with an attorney.

     Latta's action of simply telling a police officer that he

was calling his lawyer does not amount to a clear and

unequivocal request for counsel.    See Midkiff, 250 Va. at

265-68, 462 S.E.2d at 114-15 (a suspect's remark during

interrogation that he was "scared to say anything without

talking to a lawyer" was held not to be a clear and unequivocal

invocation of the right to counsel).

                     B.   VOLUNTARY CONFESSION

     Latta also contends his confession was a result of coercion

and, for that reason, should have been suppressed.   He alleges

Chief Dayton threatened to arrest his wife if he did not confess

to knowingly possessing the narcotics.   The evidence in the
                              - 4 -
record does not support this allegation, and we hold Latta's

confession was voluntarily made.

     At trial, "[t]he Commonwealth has the burden to prove, by a

preponderance of the evidence, that a defendant's confession was

freely and voluntarily given."     Bottenfield v. Commonwealth, 25

Va. App. 316, 323, 487 S.E.2d 883, 886 (1997).    The

voluntariness issue is a question of law requiring an

independent determination on appeal.     E.g., Wilson v.

Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992).

"In assessing voluntariness, the court must 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.'"   Roberts v. Commonwealth, 18 Va. App.

554, 557, 445 S.E.2d 709, 711 (1994) (quoting Stockton v.

Commonwealth, 227 Va. 124, 140, 314 S.E.2d 371, 381 (1984)

(internal quotations omitted)).    In reviewing the trial court's

determination of voluntariness, "we are bound by the trial

court's subsidiary factual findings unless those findings are

plainly wrong."   Wilson, 13 Va. App. at 551, 413 S.E.2d at 656.

     Chief Dayton did inform Latta, during their conversation

prior to Latta's last waiver of rights, that since the narcotics

were found on property owned by both Latta and his wife, who

were both present at the search, it was possible that Latta's

wife could be charged.   Latta's wife, therefore, could have been
                               - 5 -
arrested in good faith for cause at that time.    In addition,

Chief Dayton testified that he never told Latta that he would

arrest Latta's wife.

     As there is no evidence that Chief Dayton's statement was

unjustified or made in bad faith, there is no evidence of

coercion.   See Rogers v. Richmond, 365 U.S. 534 (1961).    We,

therefore, hold Latta's ensuing confession was voluntarily made.

     Accordingly, we affirm the decision of the trial court to

deny Latta's motion to suppress his confession.

                 II.   SUFFICIENCY OF THE EVIDENCE

     Latta also challenges the sufficiency of the evidence to

prove he possessed the narcotics discovered in his backyard.      We

find the record reflects sufficient evidence to support the

trial court's findings and verdict.

     "When considering the sufficiency of the evidence on appeal

of a criminal conviction, we view the evidence in the light most

favorable to the Commonwealth and accord to it all reasonable

inferences deducible therefrom."   Glenn v. Commonwealth, 10

Va. App. 150, 153, 390 S.E.2d 505, 507 (1990).    Absent evidence

the decision is "plainly wrong" or without support, we will

uphold the conviction.   Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975); Traverso v. Commonwealth,

6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

     The evidence in this case was sufficient to convict Latta

who confessed to the knowing possession of the narcotics.    We,
                              - 6 -
however, recognize that the confession alone is not sufficient.

See Jefferson v. Commonwealth, 6 Va. App. 421, 424, 369 S.E.2d

212, 214 (1988) ("In Virginia an extrajudicial confession of an

accused that he committed the offense with which he is charged

is not, alone and uncorroborated, adequate proof of the corpus

delicti.").     Where "the commission of the crime has been fully

confessed by the accused, only slight corroborative evidence is

necessary to establish the corpus delicti."     Clozza v.

Commonwealth, 228 Va. 124, 133, 321 S.E.2d 273, 279 (1984)

(citing Campbell v. Commonwealth, 194 Va. 825, 833, 75 S.E.2d

468, 473 (1953)), (emphasis added), cert. denied, 469 U.S. 1230

(1985).

        The narcotics were found in an overturned flowerpot at the

base of a tree in Latta's backyard.    There is no evidence of

other residences near the location or that any other persons had

ready access to the yard.    The evidence shows that the location

is frequently visited by the Latta family as an end of their

clothesline was tied to the tree, the children's toys were

scattered nearby, and a footpath runs from their vehicle parking

place to the tree.    In addition, the obvious value of the

narcotics justifies an inference that someone did not abandon

them.     See Brown v. Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d

877, 883 (1992).

        The foregoing evidence and Latta's confession were

sufficient evidence to prove the corpus delicti, the knowing
                              - 7 -
possession of the narcotics.   Accordingly, we uphold the

judgment of the trial court and affirm Latta's convictions.

                                                            Affirmed.




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