                       COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


DEVITA LATORIA JONES
                                           MEMORANDUM OPINION * BY
v.   Record No. 1433-98-1                 JUDGE SAM W. COLEMAN III
                                                MAY 18, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge

          Andrew G. Wiggin (Donald E. Lee, Jr. &
          Associates, on briefs), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Devita Latoria Jones was convicted in a bench trial of

conspiracy to commit robbery, two counts of attempted robbery, and

use of a firearm in the commission of attempted robbery.   Jones

contends that the trial court erred by denying her motion to

suppress a statement obtained from her in violation of her Fifth

Amendment privilege against self-incrimination.   Additionally, she

contends that the trial court erred by allowing a victim witness

to testify about his understanding of ambiguous language spoken

during the robbery.    Finding no error, we affirm.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                              BACKGROUND

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

suppress, we view the evidence in the light most favorable to the

prevailing party and grant to it all reasonable inferences fairly

deducible therefrom.   See Harris v. Commonwealth, 27 Va. App. 554,

561, 500 S.E.2d 257, 260 (1998).

     Jones and three other individuals lured two motorists into an

“inspection station” under the pretext of seeking automotive

assistance.   Once there, two of the individuals drew weapons in an

attempt to rob the motorists.   The victims fled amidst gunfire.

     On April 11, 1997, Detective Cox learned that Jones, who was

already in custody, wanted to speak with him.   Believing that

Jones had invoked her Fifth Amendment right to counsel during a

March 26, 1997 custodial interrogation, Cox reminded Jones that

the Miranda rights read to her on March 26, 1997 were still in

effect, and asked her if she wanted to proceed with a discussion.

When Jones responded by requesting information about the charges

against her, Cox replied that she was being held on robbery

charges.    He again reminded her that she had invoked her right to

an attorney and suggested that she seek the advice of her

attorney.   Cox then explained that he agreed to meet with her

because he thought she had something to tell him and that if she

did not, he would leave.

     As he turned to leave, she asked whether he wanted to show

her some pictures.   Cox replied that he did not, but he told Jones

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that if she wanted to look at some pictures he could oblige her.

Jones began crying and said she did not know whether to contact an

attorney. 1   Cox told her to call her attorney if she desired.

Jones then stated she would look at some police photographs.

Jones identified from a photographic array one of the perpetrators

of the attempted robbery with which she was later charged.        Jones

explained to Cox how the individual had instructed her to lure the

motorists into the trap.

     At trial, Inocencio Albrincoles, a victim of the attempted

robbery, testified that one of the individuals who was brandishing

a firearm at him stated, “What’s up?      What’s up now?”   The

Commonwealth asked Albrincoles, “[w]hat did you perceive that to

mean?”   Over Jones’s objection, the trial court admitted the

witness’ response, which was that “whatever we had, they wanted.”

                               ANALYSIS

     In a pretrial suppression motion, Jones argued that Cox

obtained the incriminating statement in violation of her Fifth

Amendment right against self-incrimination.     Jones contended that

Cox failed to honor scrupulously the Miranda rights she had

properly invoked in March.    We review the trial court’s findings

of historical fact for “clear error,” but we review de novo the

trial court’s application of defined legal standards to those


     1
      The officer gave two different representations of her
statement: “I don’t know if I need my attorney,” and “I don’t
know if I should talk to my attorney.”


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facts.     See Shears v. Commonwealth, 23 Va. App. 394, 398, 477

S.E.2d 309, 311 (1996).

     On appeal, Jones argues that the Commonwealth failed to

establish that the police officers informed Jones of her Miranda

rights in her initial March 26, 1997 interview.   In the

suppression hearing, Officer Cox testified that at the April 11,

1997 meeting where he obtained the statement that Jones sought to

suppress, he explained to Jones that the Miranda rights that had

been explained to her in March were still in effect. 2   Jones

contends that the evidence only proves that Cox told her in April

that officers had read Miranda rights to her in March, but the

Commonwealth did not prove that the officers had in fact explained

the Miranda rights to her.

         However, at the suppression hearing, Jones never asserted

that the evidence should be suppressed because the officers

failed to read Miranda rights to her.     In fact, during the

suppression arguments, counsel for Jones conceded that the




     2
      Detective Cox made the following statements:
     “I advised her that she was read her Miranda rights on the
March date and that she was still under those Miranda rights.”
     “I advised her that her Miranda warning that was read to
her on the March incident –- that that Miranda warning was still
in effect.”
     “I advised her –- I said the Miranda warning that you were
read the night the other detectives talked to you is still in
effect.”
     “I advised her that she had invoked her right to an
attorney.”


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officers had read Jones her Miranda rights in March.         Counsel

argued that the police officers “didn’t re-advise her of her

Miranda rights, so these weren’t fresh in her mind.”         (Emphasis

added).   Furthermore, he stated, “we don’t know what condition

she was in on March 26th when the Miranda rights were read to

her, but he did not re-advise her.”      (Emphasis added).

     Having conceded in the suppression hearing that “on

March 26, Miranda rights . . . were read to her,” Jones may not

now argue on appeal that on March 26, Miranda rights were not read

to her.   Jones preserved for appeal only those issues that she

raised at the suppression hearing.      See Rule 5A:18; Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).

            “The main purpose of [Rule 5A:18] is to
            afford the trial court an opportunity to
            rule intelligently on the issues presented,
            thus avoiding unnecessary appeals and
            reversal. In addition, a specific,
            contemporaneous objection gives the opposing
            party the opportunity to meet the objection
            at that stage of the proceeding.”

Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488

(1998) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d

164, 167 (1991)).   We find that Jones is procedurally barred

from raising on appeal, for the first time, the issue of whether

officers properly explained the Miranda rights to her on

March 26.

     Jones did, however, preserve for appeal the issue of

whether Officer Cox honored Jones’s previously invoked Fifth


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Amendment rights.    A defendant who has “expressed his desire to

deal with the police only through counsel is not subject to

further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with the

police.”    Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see

Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (finding valid

waiver after accused reopened dialogue by inquiring, “Well what is

going to happen to me now?”); Harrison v. Commonwealth, 244 Va.

576, 582-83, 423 S.E.2d 160, 164 (1992) (holding that appellant

initiated contact by asking police “what was going to happen to

him”).    Jones concedes that she initiated the contact with Cox,

and we find that her conduct during the April meeting invited

discussion of the incident out of which the charges arose.     See

Giles v. Commonwealth, 28 Va. App. 527, 535, 507 S.E.2d 102, 107

(1998).

     The United States Supreme Court has made clear, however, that

once an accused has invoked her right to counsel, she does not

waive that right merely by initiating some contact with the police

in the absence of her counsel.    The Commonwealth must prove that,

under the totality of the circumstances, the accused made a

knowing and intelligent decision to waive her right to have

counsel present.    See Bradshaw, 462 U.S. at 1046; Quinn v.

Commonwealth, 25 Va. App. 702, 712, 492 S.E.2d 470, 475 (1997).



                                 - 6 -
     Whether the defendant knowingly and intelligently waived her

right to counsel depends “upon the particular facts and

circumstances surrounding the case, including the background,

experience, and conduct of the accused.”   Johnson v. Zerbst, 304

U.S. 458, 464 (1938).   After the police officers read Jones the

Miranda rights in March, she invoked her right to counsel.   Two

weeks later, Jones, of her own volition, requested to speak to

Officer Cox in the absence of counsel.   Cox reminded Jones that

the Miranda rights that the officers had read to her earlier were

still in effect, and he inquired whether she still wanted to talk

to him.    When she proceeded to inquire about the charges against

her, he again reminded her that she had invoked her right to an

attorney and that she should speak with the attorney.   He further

advised her that she could contact an attorney before proceeding.

Nevertheless, Jones, who had a prior felony charge and experience

with the criminal justice system, decided to proceed without

counsel.   Although she cried during the interrogation, Officer Cox

testified that she appeared “fine” and asked “intelligent

questions.”   We find from this evidence that Jones knowingly,

intelligently, and voluntarily waived her previously invoked right

to counsel and that she did not again invoke the right to counsel

during the meeting with Cox.   Accordingly, the trial court did not

err in denying Jones’s motion to suppress her statements.

     Jones next contends that the trial court erred in allowing

Albrincoles, one of the victims, to testify as to his

                                - 7 -
understanding of the statement made by one of the robbers

brandishing a firearm:    “What’s up?    What’s up now?”   Albrincoles

responded:    “Basically what it meant was that whatever we had,

they wanted -– to put it in layman’s terms.”     Jones contends that

the question called for inadmissible lay opinion.

     “The admissibility of evidence is within the broad discretion

of the trial court, and the ruling will not be disturbed on appeal

in the absence of an abuse of discretion.”     Blain v. Commonwealth,

7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).     The elements of

common law robbery include the taking of a victim’s property

“against his will . . . by violence or by putting him in fear.”

Chappelle v. Commonwealth, 28 Va. App. 272, 274, 504 S.E.2d 378,

379 (1998).    Thus, a robbery can occur where the robber takes the

victim’s property without actual violence, but by the use of

intimidation.    See e.g., Jordan v. Commonwealth, 2 Va. App. 590,

597, 347 S.E.2d 152, 156 (1986).

             To take or attempt to take by intimidation
             means willfully to take, or attempt to take,
             by putting in fear of bodily harm.
             Intimidation results when the words or
             conduct of the accused exercise such
             domination and control over the victim as to
             overcome the victim’s mind, and overbear the
             victim’s will, placing the victim in fear of
             bodily harm.

Bivins v. Commonwealth, 19 Va. App. 750, 752-53, 454 S.E.2d 741,

742 (1995) (internal quotation marks and citation omitted).

     The challenged testimony tended to prove the victim’s state

of mind -- specifically whether or not he was intimidated by the

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statement.    Whether the perpetrators intimidated the victim was

relevant to whether they took direct steps to effectuate a

robbery.    The testimony was, therefore, properly admissible as an

“opinion” or “impression” drawn from an observed fact that

explained how the witness responded or reacted to the observed

fact.    See Lafon v. Commonwealth, 17 Va. App. 411, 420-21, 438

S.E.2d 279, 285 (1993).    The statement, “what’s up, what’s up

now,” taken in context with the robber brandishing a firearm at

the victim, could have been intended to intimidate the victim.

The trial court did not err by admitting the testimony for the

purpose of proving that the statement, and meaning that the victim

derived from it, intimidated the victim.

        Finding that the trial court did not err in denying the

motion to suppress, or in admitting the contested statement, we

affirm the convictions.

                                                            Affirmed.




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