Opinion
Record No. 1394-92-2
December 14, 1993
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY WILLIAM E. SPAIN, JUDGE DESIGNATE.
J. Carl Cinquino for appellant.
Leah A. Darron, Assistant Attorney General (Stephen D. Rosenthal, Attorney General), for appellee.
Present: Judges Benton, Koontz and Willis.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jason S. Karavias was tried and convicted by a jury of robbery and use of a firearm in the commission of the robbery. He appeals only the firearm conviction and alleges that the trial judge erred (1) in refusing to give an instruction on the defense of duress, (2) in refusing to suppress a letter that he wrote to a detective concerning the robbery, and (3) in finding that the evidence was sufficient to sustain his conviction. We affirm the conviction.
I.
The evidence proved that on August 28, 1988, an armed man robbed Mary Miles in a restaurant's parking lot. Miles struggled to hold her purse until a companion screamed, "Mary let go." The robber fled with Miles' purse to an automobile and entered the passenger side. The automobile's lights were immediately turned on and the automobile was driven away. One of the automobile's headlights was not working. Miles was able to see the robber sufficiently in the lighted parking lot to later identify him but was unable to identify the driver of the automobile. The police did not make an immediate arrest.
Six days after the robbery, a police officer in an adjacent county stopped an automobile because it was being operated with only one headlight. Karavias was the driver of the automobile, as well as its registered owner. Karavias told the officer that the headlight had been out for about six weeks. Abbott Moore was the passenger in the automobile.
Three years after the robbery, Karavias, who was then incarcerated in a Virginia prison on a conviction unrelated to the robbery, wrote a letter to the Crime Stoppers Organization. The letter, which was introduced into evidence over the objection of Karavias' counsel, states in part:
My name is Jason Karavias. I am writing . . . because I have all the information to solve a robbery that took place in Chesterf[ie]ld in 1988, but I want to be granted immunity, because I played a small part in this robbery, but at for[c]e, not at will. . . . [I]t occurred in the month of August 88 at a [McDonald's restaurant] in Chesterfield. The woman's name is Mary . . . something, because I could hear the woman with her yell her name.
The letter was forwarded to a detective, who went to see Karavias in prison. When Karavias entered the room where the detective was waiting, Karavias said, "Oh, [you] got my letter?" The detective testified that he informed Karavias that he would not be offered immunity. He told Karavias that if he gave "information [that] was good and factual, then [the police] could possibly work with him." The detective testified that when he left the prison he obtained a warrant for the arrest of Karavias for his participation in the robbery.
During the trial, Abbott Moore, who was also charged with the robbery, was identified by Miles as the person who robbed her in the parking lot. Karavias presented no evidence at trial.
At the conclusion of the evidence, Karavias requested that the jury be instructed on the defense of duress. Ruling that the statement in the letter that Karavias participated by force was insufficient to warrant such an instruction, the trial judge refused the duress instruction. The jury was instructed as to the concept of principal in the second degree and convicted Karavias for his participation in the robbery and use of the firearm in the robbery.
II.
"To support a defense of duress, a defendant must demonstrate that his criminal conduct was the product of an unlawful threat that caused him reasonably to believe that performing the criminal conduct was his only reasonable opportunity to avoid imminent death or serious bodily harm, either to himself or to another." Sam v. Commonwealth, 13 Va. App. 312, 324, 411 S.E.2d 832, 838-39 (1991). Because the defense of duress requires more than mere proof of force or threats, the mere allegation of force or "[v]ague threats . . . will not suffice to excuse criminal conduct." Pancoast v. Commonwealth, 2 Va. App. 28, 33, 340 S.E.2d 833, 836 (1986).
Karavias' letter stated that he "played a small part in this robbery, but at for[c]e, not at will." That statement does not suffice to support an instruction to the jury that his criminal conduct was the product of an unlawful threat and that he had no other reasonable opportunity to avoid serious harm.Sam, 13 Va. App. at 324, 411 S.E.2d at 838-39. The jury would be required to speculate concerning his lack of opportunity to avoid harm. Moreover, to justify a jury instruction, the proof must establish more than a scintilla of evidence. Carter v. Commonwealth, 232 Va. 122, 128, 348 S.E.2d 265, 269 (1986).
III.
Karavias argues that his letter to the police should have been suppressed because the police officer who visited him in prison did not first give him Miranda warnings. The argument is frivolous. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [the rules announced in Miranda]." Miranda v. Arizona, 384 U.S. 436, 478 (1966). The police did not secure the letter as a result of a violation of Miranda or any other constitutional right possessed by Karavias. The letter was sent to the police by Karavias at his own initiative.
IV.
On appeal, we consider the evidence in the light most favorable to the party that prevailed at trial, and we grant to that evidence all reasonable inferences fairly deducible therefrom. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). A principal in the second degree is someone who is present, aiding, and abetting another during the commission of a crime. Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986).
The evidence proved that Miles was robbed at gunpoint by Moore, who fled to a waiting automobile that matched the description of Karavias' automobile. As soon as Moore entered the passenger side, the automobile's lights were turned on and the automobile immediately sped away. Karavias admitted in the letter that he participated in the robbery. Moreover, the letter established that he heard the victim's friend yell when the victim was robbed. The jury could have found beyond a reasonable doubt that Karavias participated in the robbery and that he was either the driver or a passenger in the automobile. Furthermore, the jury was not required to believe Karavias' statement in the letter that he participated in the robbery because he was forced to do so. The jury could have believed that he only included that allegation in his letter to obtain favorable consideration of his request for immunity in exchange for testifying against Moore. Thus, the evidence was sufficient to prove beyond a reasonable doubt that Karavias was a principal in the second degree.
Affirmed.