Opinion
Record No. 2515-93-2
Decided: March 14, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Lee A. Harris, Jr., Judge
Robert N. Johnson (Robert N. Anne M. Johnson, Incorporated, on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Elder and Senior Judge Cole
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Grayson Garnell Miller (appellant) appeals his conviction for possession of a firearm by a felon in violation of Code Sec. 18.2-308.2. Appellant contends (1) his statement to police was given in violation of his sixth amendment right to counsel; and (2) there was insufficient evidence to prove appellant possessed a firearm as a felon. Because we hold that the trial court committed no error, we affirm appellant's conviction.
The facts show that on April 14, 1993, at 2:09 a.m., Officer Steven Lowery of the Henrico Police Department stopped a vehicle driven by appellant because it bore altered license tags. Lowery found narcotics in the front seat of the car during a search. No firearm was found during two separate searches (which were conducted in the dark with the aid of a flashlight). A local towing company then towed the car to its facility at Lowery's request. Appellant was thereafter arrested for possession of narcotics.
A search of appellant revealed five .32 caliber bullets on his person. When asked where the accompanying gun was, appellant said he did not have one on his person and that he did not know where the bullets came from. At approximately 4:00 p.m. on the same day, a towing company employee notified Officer Lowery that he had found a loaded and cocked gun between the front seat and the console of the vehicle after he had sat on the car seat. At least three towing company employees had direct access to the vehicle, and the unlocked vehicle was parked in an unsecured area on the company's lot.
At approximately 5:30 p.m. on April 14, Lowery interviewed appellant without the presence of his attorney, and appellant signed a waiver of his fifth amendment Miranda rights. Appellant admitted he had bought the gun that had been found in the car for fifty dollars. However, appellant never signed the transcribed statement he gave to Lowery during that interview.
The trial court denied appellant's motion to suppress, finding that questioning appellant on the firearm charge was valid because appellant's sixth amendment right to counsel had not attached to that charge at the time of the police interview. The jury returned a guilty verdict, and the trial judge imposed a two year nine month prison sentence.
We first hold that the trial court did not err in refusing to suppress appellant's statement to Officer Lowery, as it did not violate his sixth amendment right to counsel.
"The invocation of the sixth amendment right to counsel is charge specific and does not bar police initiated interrogations with respect to charges unrelated to those for which counsel has been employed." Jackson v. Commonwealth, 14 Va. App. 414, 416, 417 S.E.2d 5, 7 (1992) (citing McNeil v. Wisconsin, 501 U.S. 171 (1991)); see also Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990). In this case, the trial court did not err in ruling that the cocaine possession charge was based on different conduct than the gun possession charge. Each crime had separate and distinct elements, despite the fact that the crimes each arose from circumstances involving searches of the same vehicle. The two crimes were not so inextricably intertwined as to foreclose isolating the right to counsel on the cocaine charge from the right to counsel on the firearm charge. See generally United States v. Hines, 963 F.2d 255, 257 (9th Cir. 1992). For these reasons, and because appellant's statement was not taken in violation of appellant's fifth amendment rights under Miranda v. Arizona, 384 U.S. 436 (1966); see also Mills v. Commonwealth, 14 Va. App. 459, 418 S.E.2d 718 (1992), the trial court did not err in denying appellant's motion to suppress.
Second, we hold that the evidence was sufficient to prove beyond a reasonable doubt that appellant possessed a firearm as a felon.
When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. . . . The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
The record shows appellant admitted to Officer Lowery that the gun belonged to him. The gun was found in the vehicle driven by appellant. The five bullets found on appellant's person matched the caliber of the gun found in the vehicle. Finally, the parties stipulated as to appellant's prior felony conviction, which was necessary to support the instant conviction for possession of a firearm as a felon. "All evidence of the accused which is in conflict with the Commonwealth's evidence must be discarded, and all credible evidence of the Commonwealth must be regarded as true." Boblett v. Commonwealth, 10 Va. App. 640, 651, 396 S.E.2d 131, 137 (1991) (citation omitted).
Accordingly, we affirm appellant's conviction.
Affirmed.