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Allison v. Commonwealth

Court of Appeals of Virginia. Norfolk
Feb 16, 1993
Record No. 1723-91-1 (Va. Ct. App. Feb. 16, 1993)

Opinion

Record No. 1723-91-1

February 16, 1993

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON WALTER J. FORD, JUDGE

Oscar H. Blayton, for appellant.

Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.

Present: Judges Willis, Elder and Bray

Argued at Norfolk, Virginia


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


On appeal from his jury trial conviction of first degree murder, David Alan Allison contends that the trial court erred (1) in denying his motion to suppress his pre-arrest statement, given in the absence of a Miranda warning, and (2) in denying his motion for a mistrial based on the ground that a juror had fallen asleep or had been distracted during the presentation of the evidence. We find no error and affirm the judgment of the trial court.

Miranda v. Arizona, 348 U.S. 436 (1966).

On November 11, 1990, Hampton fire and emergency personnel found James Brockwell's body on the floor of a residence occupied by Allison and owned by his employer. An autopsy revealed bilateral rib fractures which inhibited breathing, causing Brockwell to suffocate. The autopsy also showed potentially lethal head injuries.

On November 12, 1990, Allison went voluntarily to the police station after learning that the police wished to speak with him because he lived at the house where Brockwell died. Upon questioning, Allison denied any knowledge about Brockwell's death, claiming that he left the house about 11:00 p.m. on November 10. On November 15, the police questioned Allison's brother, Fred Allison, who admitted that he and David Allison beat Brockwell because "the old man was twirling [a] knife." The officers observed that Fred's hand was bruised and swollen. They arrested him.

On November 15, following Fred's arrest, Officers Decker and Spencer went to Allison's home to take him to the police station for further questioning. When Allison arrived home from work, the officers told him that he was not under arrest, but that they needed to speak with him further about Brockwell's death. Allison said that he would rather wait until the next week to answer questions, but the officers persuaded him to talk to them then, and he went with them to police headquarters. At the police station, upon Allison's inquiry, the officers told him that they had arrested Fred, and that Fred was in custody. Upon Allison's request, the officers produced and read Fred's statement. Allison gave a sigh of relief and admitted that Fred's statement was correct. He then gave his own statement to the police. After conferring with the Commonwealth's Attorney, the officers arrested Allison. At no time during the November 15 interview did they advise him of his Miranda rights.

After hearing evidence in support of Allison's motion to suppress his November 15 statement, the trial court found that Allison went with the officers voluntarily, that he was not in custody, and that he gave the statement freely and voluntarily. The court ruled that a pre-statement Miranda warning was not required.

On May 6, 1991, the jury returned its verdict of guilt and was discharged, Allison was sentenced, and the trial was concluded. On May 22, 1991, Allison filed a motion for a mistrial, alleging that during the presentation of the evidence, one of the jurors was sleeping and/or suffering from a migraine headache. Evidence on this motion revealed that on at least two occasions during the trial, while an officer testified about Allison's statement, one of the jurors closed her eyes briefly. The juror testified that she told the bailiff that she was not sleeping, but had a migraine headache. She testified that she listened to the evidence with her eyes closed and obeyed her juror's oath to base her decision on the evidence presented. Several of Allison's friends and family members testified that the juror had her eyes closed, but none could state with certainty that she was asleep. The trial court found that the juror was not sleeping, was alert, and served properly.

Allison first contends that application of the factors described in Bosworth v. Commonwealth, 7 Va. App. 567, 375 S.E.2d 756 (1989), demonstrates that on November 15, he was the subject of a custodial interrogation and should have been advised of hisMiranda rights. He argues that because police domination of the interrogation scene created a coercive environment and an abridgement of freedom, a reasonable person would have believed his freedom restricted to a degree associated with formal arrest.

When a law enforcement officer questions a person in custody without first giving the prescribed warning, any resulting statement must be excluded at trial. Miranda, 348 U.S. at 478-79.

The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, to relieve the "inherently compelling pressures" generated by the custodial setting itself, "which work to undermine the individual's will to resist," and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary.

Berkermer v. McCarty, 468 U.S. 420, 433 (1984) (footnotes omitted).

Miranda applies to custodial interrogation, defined by the Supreme Court as "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." Miranda, 348 U.S. at 444. See also Rhode Island v. Innis, 446 U.S. 291, 298 (1988); May v. Commonwealth, 3 Va. App. 348, 352, 349 S.E.2d 428, 430 (1986); Commonwealth v. Milner, 13 Va. App. 556, 558, 413 S.E.2d 352, 353 (1992); Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244 (1992).

Whether a person is "in custody" for purposes of Miranda involves consideration of a number of factors. Among these are (1) the familiarity or neutrality of the surroundings, (2) the number of police officers present, (3) the degree of physical restraint, (4) the duration and character of the interrogation, (5) the presence of probable cause to arrest, and (6) whether the suspect has become the focus of the investigation.

Bosworth, 7 Va. App. at 572, 375 S.E.2d at 759. See also Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 840 (1987). When considering the factors to determine whether "a suspect's freedom of movement is curtailed to a degree associated with formal arrest; we must consider them from the perspective of a reasonable person finding himself in the position of being so interrogated." Id. at 32, 359 S.E.2d at 840.

Viewing the circumstances in the light most favorable to the Commonwealth, Blain v. Commonwealth, 7 Va. App. 10, 13, 371 S.E.2d 838, 840 (1988), we hold that the trial court correctly concluded Allison was not in custody when questioned by Officer Spencer. Although Allison was interrogated at the police station, the setting was non-coercive. See Kauffmann v. Commonwealth, 8 Va. App. 400, 404-05, 382 S.E.2d 279, 281 (1989) (Miranda warnings not required merely because the interview takes place at the police station or because the investigation has centered on the suspect being questioned). After the officers told him they needed to speak with him about Brockwell's death, Allison voluntarily agreed to go to the police station. The officers waited outside his apartment while he put away his work equipment. He sat in the front of the unmarked police vehicle while Officer Spencer drove, and Officer Decker sat in the back seat. The setting and atmosphere of both the November 12 and the November 15 interviews were the same. Officer Spencer alone conducted most of the interview, while Officer Decker entered and left the room on several occasions. No other officers were present. Allison was not restrained, and neither officer told him that he was required to answer their questions. Upon Allison's inquiry, the officers told him that his brother was at the "city lock-up." This disclosure triggered Allison's request to see his brother's statement, which Officer Decker produced and read. Allison appeared relieved. He immediately agreed with his brother's statement and said that he was glad that his brother had told the truth. He then freely gave the statement sought to be suppressed. There was no display of police authority. Although the officers had probable cause to arrest Allison and had focused their investigation on him, he was not so informed, and those circumstances were not asserted against him coercively. Allison was not under arrest. He was free to leave. A reasonable person under the same circumstances would not have believed himself in custody.

Allison next contends that inattentiveness of one of the jurors violated his right to a trial by a fair and impartial jury. We disagree. Whether a mistrial should be granted lies within the sound discretion of the trial court. Turnbull v. Commonwealth, 216 Va. 328, 335, 218 S.E.2d 541, 546 (1975). The record in this case reveals no abuse of that discretion. The trial court accepted the juror's credible testimony that she was awake and was paying attention. She testified that, because she had a headache, she closed her eyes for only a minute during an officer's testimony regarding Allison's statement. She testified that she heard and based her verdict on the evidence in the case.

The judgment of the trial court is affirmed.

Affirmed.


Summaries of

Allison v. Commonwealth

Court of Appeals of Virginia. Norfolk
Feb 16, 1993
Record No. 1723-91-1 (Va. Ct. App. Feb. 16, 1993)
Case details for

Allison v. Commonwealth

Case Details

Full title:DAVID ALAN ALLISON v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Norfolk

Date published: Feb 16, 1993

Citations

Record No. 1723-91-1 (Va. Ct. App. Feb. 16, 1993)