                               COURT OF APPEALS OF VIRGINIA


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


MICHAEL FITZROY CROSBY
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0847-08-2                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                  NOVEMBER 17, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                              Clarence N. Jenkins, Jr., Judge

                 Catherine French, Assistant Public Defender (Office of the Public
                 Defender, on briefs), for appellant.

                 Josephine F. Whalen, Assistant Attorney General II (William C.
                 Mims, Attorney General, on brief), for appellee.


       Michael Fitzroy Crosby (appellant) appeals his jury trial conviction for carnal knowledge of

a child between thirteen and fifteen years of age, in violation of Code § 18.2-63. 1 On appeal,

appellant contends that the trial court erred in denying appellant’s motion to suppress his

post-Miranda statements. In support of this assertion, appellant argues that the post-Miranda


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
           Code § 18.2-63 provides

                 A. If any person carnally knows, without the use of force, a child
                 thirteen years of age or older but under fifteen years of age, such
                 person shall be guilty of a Class 4 felony.

                        *       *       *      *       *       *       *

                 C. For the purposes of this section, (i) a child under the age of
                 thirteen years shall not be considered a consenting child and
                 (ii) “carnal knowledge” includes the acts of sexual intercourse,
                 cunnilingus, fellatio, anilingus, anal intercourse, and animate and
                 inanimate object sexual penetration.
interrogation was conducted in violation of Missouri v. Seibert, 542 U.S. 600 (2004). For the

following reasons, we affirm the trial court.

                                           I. BACKGROUND

          In July 2007, appellant spoke with K.B., a thirteen-year-old girl, in an adult internet

chatroom. At the time, appellant was thirty-one years old. They interacted frequently on the

internet and also met in person. K.B. considered their relationship as that of a “boyfriend and

girlfriend.” At various times, K.B. told appellant that she was twenty years old or that she was

sixteen years old and that she was a mother. However, during the months of July and August 2007,

after discovering the relationship between appellant and K.B., K.B.’s mother spoke with appellant

several times on the telephone, informed him that K.B. was thirteen years old, and told him to cease

communicating with K.B. K.B’s mother also specifically prohibited appellant from coming to the

family residence. Additionally, sometime in the middle of August, appellant and K.B. discussed the

fact that she was actually thirteen years old.

          On August 24, 2007, police officers were called to K.B.’s home by an unidentified female

family member, who believed there was a trespasser in the home. Officers Godwin, McQueen, and

Land of the City of Richmond Police Department responded to the call. K.B.’s mother gave the

officers permission to search the home, and Officer Godwin found appellant and K.B. asleep in

K.B.’s bed. Appellant was not wearing any clothes. Officer Godwin woke appellant and told him

to put on his clothes. When appellant was clothed, Officer Godwin placed him in handcuffs, and

informed appellant that he was under investigative detention for trespassing, rather than under

arrest.

          Officer Godwin escorted appellant out of the residence leaving him under the supervision of

Officer Land. Officers Godwin and McQueen re-entered K.B.’s home, where they spoke with the




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relative who initially called the police. She told Officer Godwin that she believed appellant and

K.B. had a sexual relationship and informed Officer Godwin that K.B was thirteen years old.

       While Officer Land waited outside with appellant, Officer Land asked “what was going on,”

and spoke casually with appellant. Unprompted, appellant told Officer Land that he did not know

K.B. was underage and that he believed she was sixteen years old. Appellant stated that he was

eighteen years old and that he had engaged in sexual intercourse with K.B.

       In his next contact with Officer Godwin, appellant asked Officer Godwin why he was in

handcuffs. In turn, Officer Godwin asked appellant why he was in K.B.’s house, as K.B.’s family

members contended he was trespassing. Appellant responded that K.B. was his friend. Next,

Officer Godwin informed appellant that K.B.’s family told him that appellant was in a sexual

relationship with K.B. and that K.B. was thirteen years old. Officer Godwin further stated that

K.B.’s family informed him that they forbade appellant from coming to their home. Appellant

denied the veracity of the allegations. In response to Officer’s Godwin’s statements and some

follow-up questions posed by Officer Godwin, appellant stated that he thought K.B. was sixteen

years old and denied knowing that K.B. was thirteen years old. Appellant admitted that he was in

an intimate relationship with K.B.

       After this discussion, Officer Godwin left appellant in front of K.B.’s residence for a brief

period of time. When he returned, he informed appellant of his rights and the consequences of

waiving those rights, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Appellant, who had

previous involvement with law enforcement, received his G.E.D., and completed two years of

college, stated that he understood his rights, and asked Officer Godwin if “he had the right to be

heard.” Appellant stated he wanted to tell “his side of the story.” Appellant then provided an oral

narrative statement, with Officer Godwin asking occasional questions. Several times, Officer

Godwin stated the allegations made by K.B.’s mother and K.B., and asked appellant if they were

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true or false. Appellant stated he engaged in unprotected sex with K.B. at least six times and that he

had been aware, for at least two weeks, that K.B. was thirteen years old. During the interaction,

Officer Godwin used a mild tone, and did not threaten appellant. Appellant provided his statement

in less than fifteen minutes, while he and Officer Godwin were standing near the sidewalk outside

K.B.’s residence. Appellant was charged with carnal knowledge of a child between thirteen and

fifteen years of age, in violation of Code § 18.2-63. The record suggests that approximately

sixty-five minutes passed from the time the officers arrived on the scene to the point of appellant’s

arrest.

          Appellant, through counsel, moved to suppress all of the statements made on August 24,

2007. At the suppression hearing, appellant argued that when he was escorted from the house, he

was under arrest for trespassing and that all of the questions posed to appellant prior to the

administration of the Miranda warnings were inculpatory in nature. Appellant further argued that

the statement given by appellant after the Miranda warnings was inadmissible, because “Miranda

warnings . . . inserted in the midst of coordinated and continuous interrogation . . . are likely to

mislead and deprive a defendant of knowledge essential to his ability to understand the nature of his

rights and the consequences of abandoning them.” Seibert, 542 U.S. at 613-14 (internal quotation

omitted).

          After hearing evidence and argument, the trial court ruled the statements elicited prior to the

Miranda warnings were inadmissible, but that those statements elicited subsequent to the Miranda

warnings were admissible and did not violate the protections enumerated in Seibert. The trial court

found that the initial questions posed by the officers were not coercive and that the officers did not

use “trickery or threats or promises or any type of ploy” to elicit responses. However, according to

the trial court, at some point during the officer’s pre-Miranda discussion with appellant, the officers’

questioning evolved into an interrogation, as Officer Godwin asked questions that allowed a

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reasonable person to think that Officer Godwin was eliciting an incriminating statement. Thus, the

trial court suppressed the pre-Miranda warning statements.

        The trial court went on to find that the administration of Miranda warnings cured the

condition that rendered the unwarned statements inadmissible. The trial court held that an analysis

under Seibert was not appropriate, as Seibert pertained to the use of trickery to obtain confessions,

and the court had already found that the officers did not intentionally try to trick appellant into

confessing. Further, the trial court held that appellant clearly wanted to give a statement and tell his

“side of the story.” Based on these conclusions, the trial court deemed the confession given after

the Miranda warnings admissible.

        A jury subsequently found appellant guilty of the offense of carnal knowledge of a child

between thirteen and fifteen years of age. Appellant timely noted his appeal of the denial of his

motion to suppress his post-Miranda statements.

                                            II. ANALYSIS

        On appeal, it is appellant’s burden to show the denial of his suppression motion

constituted reversible error. Harris v. Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145

(2008). The reviewing 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.” Commonwealth v. Hillard, 270 Va. 42, 49-50, 613

S.E.2d 579, 584 (2005). The trial court’s determination that the provision of Miranda warnings

cured constitutional violations raised by the earlier police interrogation is a legal determination,

subject to de novo review by this Court. See, e.g., Harris v. Commonwealth, 27 Va. App. 554,

561, 500 S.E.2d 257, 260 (1998); Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d

309, 311 (1996).

                [A]bsent deliberately coercive or improper tactics in obtaining the
                initial statement, the mere fact that a suspect has made an
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               unwarned admission does not warrant a presumption of
               compulsion. A subsequent administration of Miranda warnings to
               a suspect who has given a voluntary but unwarned statement
               ordinarily should suffice to remove the conditions that precluded
               admission of the earlier statement. In such circumstances, the
               finder of fact may reasonably conclude that the suspect made a
               rational and intelligent choice whether to waive or invoke his
               rights.

Oregon v. Elstad, 470 U.S. 298, 314 (1985). For, “[o]nce warned, the suspect is free to exercise

his own volition in deciding whether or not to make a statement to the authorities.” Id. at 308.

“The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in

any such inquiry, the finder of fact must examine the surrounding circumstances and the entire

course of police conduct with respect to the suspect in evaluating the voluntariness of his

statements.” Id. at 318.

       Given the record before us, the trial court’s factual determination that the officers did not

deliberately use improper tactics or coercion is not plainly wrong or without the evidence to

support it. See Hillard, 270 Va. at 49-50, 613 S.E.2d at 584. Officer Land, who was not privy to

the conversations that occurred within the residence, casually asked appellant why he was being

detained. Officer Godwin initially investigated the trespassing charge by asking appellant why

he was present in the home, and then explained to appellant the allegations of sexual misconduct

that required further investigation by the officers and mandated appellant’s further detention.

There was no evidence in the record that the officers attempted to elicit a response from

appellant by the use of trickery or coercion.

       Provided this factual predicate, this Court must now determine if appellant voluntarily

made his post-Miranda statements. Elstad, 470 U.S. at 314. 2 Assessing whether a confession is


       2
          Appellant urges this Court to utilize the five-factor test articulated in the Seibert
plurality opinion in our determination of whether appellant’s post-Miranda statements are
admissible. See Seibert, 542 U.S. at 615 (plurality opinion). We decline to do so. The
applicable jurisprudence requires this Court to consider Seibert on its most narrow ground. As
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voluntary requires an examination of the totality of the circumstances to determine if 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.” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973); Gray v. Commonwealth, 233

Va. 313, 324, 356 S.E.2d 157, 163 (1987).

       Appellant told the officer that he understood the warnings, which he concedes were

accurate and complete. These facts, in conjunction with appellant’s eagerness to “tell his side of

the story” support the conclusion that appellant’s confession was not coerced. Further, it is noted

that although the officers were in uniform, they did not draw their weapons, nor did they speak to

appellant in anything other than a conversational tone. See Gray, 233 Va. at 324, 356 S.E.2d at

163.



Justice Kennedy concurred in the result of the plurality on a more narrow ground, his concurring
opinion constitutes the controlling legal principle; the five-factor test articulated in the plurality
is inapposite. United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006) (citing United States
v. Gonzalez-Lauzan, 437 F.3d 1128, 1136 n.6 (11th Cir. 2006); Romano v. Oklahoma, 512 U.S.
1, 9 (1994); Marks v. United States, 430 U.S. 188, 193 (1977)). See also Panetti v. Quarterman,
551 U.S. 930, 949 (2007) (noting “[w]hen there is no majority opinion, the narrower holding
controls”); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (holding Justice
Kennedy’s opinion concurred in the judgment on the narrowest grounds and is controlling; thus
the “admissibility of post-warning statements is governed by Elstad unless the deliberate
‘question-first’ strategy is employed”). Accordingly, we are guided by Justice Kennedy’s
concurring opinion, and Elstad controls:

               The admissibility of postwarning statements should continue to be
               governed by the principles of Elstad unless the deliberate two-step
               strategy [of asking pre-Miranda questions in an effort to elicit
               those same statements post-Miranda] was employed. If th[is]
               deliberate two-step strategy has been used, postwarning statements
               that are related to the substance of prewarning statements must be
               excluded unless curative measures are taken before the
               postwarning statement is made. Curative measures should be
               designed to ensure that a reasonable person in the suspect’s
               situation would understand the import and effect of the Miranda
               warning and of the Miranda waiver.

Seibert, 542 U.S. at 622 (Kennedy, J., concurring).
                                               -7-
        Moreover, the totality of the circumstances further shows that appellant’s confession was

made knowingly and intelligently. Elstad, 470 U.S. at 309. Appellant had numerous previous

convictions for felony offenses, and was thus familiar with the criminal justice system and the

rights accorded to him. Further, he was thirty-one years old, had received his G.E.D., and

completed two years of college. The totality of these circumstances justifies the trial court’s

determination. See Gray, 233 Va. at 325, 356 S.E.2d at 163 (where Gray, who was twenty-eight

years old, had a G.E.D., could read and write, said he understood his rights and had prior

experience in the criminal justice system, resulted in a determination that the totality of

circumstances showed Gray knowingly waived his Fifth Amendment rights).

        Accordingly, we find that the trial court properly denied appellant’s motion to suppress,

as the post-Miranda statements were knowingly and voluntarily made.

                                        III. CONCLUSION

        For the reasons stated, we find no error in the judgment of the trial court. Therefore we

affirm the trial court’s decision.

                                                                                              Affirmed.




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