                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                           MEMORANDUM OPINION * BY
v.   Record No. 2360-00-2                   JUDGE LARRY G. ELDER
                                                 MARCH 6, 2001
ANABELIS CORRALES


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

           Marla Graff Decker, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellant.

           John Franklin for appellee.


     Anabelis Corrales (defendant) stands indicted for the

murder of her newborn infant.    The Commonwealth appeals a

pretrial ruling granting defendant's motion to suppress three

statements defendant made to police.     On appeal, the

Commonwealth contends the trial court erroneously suppressed the

evidence because defendant was not in custody when interviewed

by the police in her hospital room on three separate occasions.

It also contends that even if the interviews were custodial,

defendant validly waived her right to have counsel present after

initially invoking that right.   We hold the evidence supported


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the trial court's finding that the interviews were custodial and

that defendant invoked and did not validly waive her right to

counsel.   Therefore, we affirm the trial court's suppression of

defendant's statements and remand for further proceedings

consistent with this opinion if the Commonwealth be so advised.

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party,

here the defendant, granting to it all reasonable inferences

fairly deducible therefrom.   See Commonwealth v. Grimstead, 12

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).   "[W]e are bound

by the trial court's findings of historical fact unless 'plainly

wrong' or without evidence to support them[,] and we give due

weight to the inferences drawn from those facts by resident

judges and local law enforcement officers."   McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc) (citing Ornelas v. United States, 517 U.S. 690, 699,

116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)).   However, we

review de novo the trial court's application of defined legal

standards to the particular facts of the case.   See Ornelas, 517

U.S. at 699, 116 S. Ct. at 1663.

                                A.

                         CUSTODIAL STATUS

     Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16

L. Ed. 2d 694 (1966), holds that "statements stemming from

custodial interrogation are inadmissible unless certain

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procedural safeguards effective to secure the privilege against

self-incrimination are provided.   Custodial interrogation is

'questioning initiated by law enforcement officers after a

person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.'"   Wass v.

Commonwealth, 5 Va. App. 27, 29-30, 359 S.E.2d 836, 837 (1987)

(quoting Miranda, 384 U.S. at 444, 86 S. Ct. at 1612).

               The totality of circumstances must be
          considered in determining whether the
          suspect is in custody when questioned
          . . . . It is only when a suspect's freedom
          of movement is curtailed to a degree
          associated with formal arrest that the
          suspect is entitled to the full protection
          of Miranda. In making that determination,
          the situation must be viewed from the
          vantage point of "how a reasonable [person]
          in the suspect's position would have
          understood his situation."

Id. at 32, 359 S.E.2d at 839 (quoting Berkemer v. McCarty, 468

U.S. 420, 442, 104 S. Ct. 3138, 3151, 82 L. Ed. 2d 317 (1984)).

     Appropriate factors for consideration include the nature of

the surroundings in which the questioning takes place, "the

number of police officers present, the degree of physical

restraint, and the duration and character of the interrogation."

Id. at 32-33, 359 S.E.2d at 839.   The existence of probable

cause to arrest, the focus of the investigation on a particular

suspect, and "'"the extent to which he or she is confronted with

evidence of guilt"'" are also relevant factors.   Id. at 33, 359

S.E.2d at 839 (quoting United States v. Bautista, 684 F.2d 1286,


                              - 3 -
1292 (9th Cir. 1982) (quoting United States v. Booth, 669 F.2d

1231, 1235 (9th Cir. 1982))).   "An officer's knowledge or

beliefs may bear upon the custody issue if they are conveyed, by

word or deed, to the individual being questioned.   Those beliefs

are relevant . . . to the extent they would affect how a

reasonable person in the position of the individual being

questioned would gauge the breadth of his or her 'freedom of

action.'"   Stansbury v. California, 511 U.S. 318, 325, 114

S. Ct. 1526, 1530, 128 L. Ed. 2d 293 (1994) (quoting Berkemer,

468 U.S. at 440, 104 S. Ct. at 3150) (other citations omitted).

     The fact that one is hospitalized at the time of an

interrogation does not automatically render the interrogation

custodial, see Taylor v. Commonwealth, 26 Va. App. 485, 489,

491-92, 495 S.E.2d 522, 524, 525 (1998) (assuming without

discussion that interview of hospitalized driver regarding car

accident was non-custodial), but it is an appropriate factor for

inclusion in the analysis of whether a reasonable person would

have believed she was in custody, see State v. Choinacki, 734

A.2d 324, 338-40 (N.J. Super. Ct. App. Div. 1999) (considering

factors such as whether police transported suspect to hospital,

posted guard outside suspect's room, or otherwise prevented

suspect from leaving), cert. denied, 743 A.2d 849 (1999).

     Here, the evidence, viewed in the light most favorable to

defendant, supports the trial court's ruling that defendant was

in custody while being questioned by police.   Officer Perkins'

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interrogation of defendant occurred while the sleepy defendant

was receiving medical treatment for a birth which occurred at

home and necessitated subsequent inpatient care.    Hospital

personnel had earlier denied defendant's boyfriend entry into

defendant's hospital room at the request of police.    Although

visitors were in defendant's room when Officer Perkins arrived,

hospital personnel asked them to leave.    Perkins then closed

defendant's hospital room door, and no one but hospital

personnel entered while the questioning was taking place.

Although police allowed defendant's sister, Rosa Corrales, to be

present during the second interrogation, they did so in an

express attempt to establish that it was defendant and not her

sister who put the baby in the closet.

     Other evidence established that defendant spoke only broken

English, and the person who acted as an interpreter for Officer

Perkins, Ed Medina, was also a police officer.    The officers

spent one hour and twenty minutes interrogating defendant the

first time and returned less than two hours later to interrogate

her a second time.   Perkins admitted that he had "focused" his

investigation on defendant and that she was his "prime suspect."

Although the officers did not tell defendant this specifically,

Medina told defendant that they "[were] going to" and "[had] to

ask [her] some questions about what happened today," and they

read defendant her Miranda rights.     Defendant was Mirandized

again during the third interrogation.

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     Whether the police have Mirandized a suspect, although not

conclusive evidence of one's custodial status, see United States

v. Owens, 431 F.2d 349, 352 (5th Cir. 1970), is an appropriate

factor to be considered in the totality-of-the-circumstances

analysis, see Wass, 5 Va. App. at 32-33, 359 S.E.2d at 839.

Under the facts of this case, we hold that defendant's receipt

of her Miranda rights would convey to a reasonable person in

defendant's position that the police had, in fact, focused their

investigation on her, and additional circumstances reinforced

this view.   After defendant had been Mirandized, Perkins made

statements indicating his belief that defendant was responsible

for the death of her infant.   Perkins said one of the nurses

reported defendant's confession to placing the baby in the

toilet, and Perkins indicated he thought defendant was lying

when she said she did not remember what had occurred.   Further,

the second interrogation was for the express purpose of

"confront[ing] [defendant] about [defendant's] putting the baby

in the closet," thereby emphasizing that defendant was their

prime suspect in the murder investigation.

     Although Perkins and Medina testified that defendant was

not in custody and was free to leave or terminate the interviews

at any time, the totality of the circumstances supports the

trial court's finding that a reasonable person in defendant's

position would have believed she was in custody for the murder



                               - 6 -
of her child while confined with the officers in her hospital

room.

                                  B.

                           RIGHT TO COUNSEL

        "If, while in custody, a person invokes the right to have

counsel present, the police may not resume interrogation until

counsel has been made available or until the individual

re-initiates communications and waives . . . her right to

counsel."     Pugliese v. Commonwealth, 16 Va. App. 82, 87, 428

S.E.2d 16, 21 (1993) (citing Edwards v. Arizona, 451 U.S. 477,

484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378 (1981)).     The

interrogation also must cease if a person in custody invokes her

right to remain silent.     Michigan v. Mosley, 423 U.S. 96, 101,

96 S. Ct. 321, 325, 46 L. Ed. 2d 313 (1975).     "Police officers

may not resume interrogation of a person in custody who has

asserted his right to remain silent unless they have

'scrupulously honored' that right."      Pugliese, 16 Va. App. at

87, 428 S.E.2d at 21 (quoting Mosley, 423 U.S. at 102-04, 96

S. Ct. at 325-26).

        The test for determining whether a suspect invoked either

right is an objective one.     Davis v. United States, 512 U.S.

452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994)

(applying objective test to invocation of right to counsel);

Medina v. Singletary, 59 F.3d 1095, 1100-01 (11th Cir. 1995)

(applying objective test of Davis to invocation of right to

                                 - 7 -
remain silent).   A suspect must articulate her desire to

exercise her right to silence or counsel "'with sufficient

clarity that a reasonable police officer in the circumstances

would understand the statement to be an assertion of [the right

at issue].'"   Medina, 59 F.3d at 1101 (quoting Coleman v.

Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994)).

     Any statement or confession obtained in violation of these

principles is presumed to have been the result of an involuntary

waiver of one's constitutional rights and, therefore, any

evidence obtained as a result is inadmissible.     See Giles v.

Commonwealth, 28 Va. App. 527, 530-31, 507 S.E.2d 102, 104

(1998); Pugliese, 16 Va. App. at 87, 428 S.E.2d at 21.      We are

bound by the trial court's "subsidiary factual findings"

underpinning both these issues unless they are plainly wrong.

Pugliese, 16 Va. App. at 87, 88, 428 S.E.2d at 21; see Giles, 28

Va. App. at 532-33, 507 S.E.2d at 105.

     Here, the trial court accepted the translation of the

interview prepared by certified translator Michelle Kusuda.

That transcript revealed the following exchange:

          Medina:   This, do you want an attorney now?

          [Defendant]:   Yes.

          Medina:   I beg your pardon?

          [Defendant]:   Yes.

          Medina:   Do you want an attorney?

          [Defendant]:   Yes.

                                - 8 -
          Medina: Ok. Well, you do not want to talk
          with us now any more then…

          [Defendant]:     No

          Medina:    That is what I need.

          Medina:    Do you want an attorney here now?

          [Defendant]:     No.   No, it's alright.

          Medina: Are you sure? That is not a
          problem for me. I want to know that you are
          sure of everything before you answer.

          [Defendant]: Well, I think it is alright
          with you. It is not necessary.

          Medina:    It isn't necessary then?

          [Defendant]:     No.

          Medina:    Ok.

          Medina: We questioned her whether she
          wanted a lawyer or not. She changed her
          mind. She said she would be willing to talk
          to us.

          Perkins:   So she wants to talk to us?

          Medina:    Yeah, that's what she says.

     Relying on this passage, the court found that defendant

unambiguously requested an attorney three times in succession by

answering, "Yes," to Medina's questions regarding her desire for

counsel and that she made an unambiguous request to terminate

the interview.   Although Officer Medina testified that he had

trouble hearing defendant and asked her to repeat herself only

because he was not sure whether she was invoking her right to

counsel, the trial court rejected this testimony, as it was free

                                  - 9 -
to do.   Because the officers did not cease questioning defendant

after she unequivocally invoked her rights to silence and

counsel, the evidence supports the trial court's exclusion of

her subsequent statements.

     For these reasons, we affirm the trial court's suppression

of appellant's statements and remand to the trial court for

further proceedings consistent with this opinion.

                                            Affirmed and remanded.




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