Secret v. Commonwealth , 819 S.E.2d 234 ( 2018 )

PRESENT: All the Justices
NICHOLAS CHARLES SECRET
OPINION BY
v. Record No. 170540 ELIZABETH A. McCLANAHAN
October 11, 2018
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
A jury convicted Nicholas Charles Secret of arson of an occupied dwelling and nine
counts of attempted first-degree murder. On appeal, Secret contends the trial court erred in
denying his motion to suppress his confession. The confession was given after he was informed
of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and indicated that he waived
them. He claims that his post-warning confession was the product of an intentional and coercive
two-step interrogation technique like the one proscribed in Missouri v. Seibert, 542 U.S. 600
(2004), or was otherwise involuntary under Oregon v. Elstad, 470 U.S. 298 (1985). Secret also
contends the trial court erred in denying his motions challenging the sufficiency of the
Commonwealth’s evidence of his specific intent to commit murder. Finding no error, we affirm
Secret’s convictions.
I. BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Hilton v.
Commonwealth, 293 Va. 293, 296 (2017) (quoting Scott v. Commonwealth, 292 Va. 380, 381,
(2016)).
A. The Fire and Secret’s Connection to the Dwelling
The fire resulting in Secret’s arson and attempted first-degree murder convictions
occurred in Louisa County at a dwelling known as “Heartwood” utilized by “an intentional
community” of about 30 individuals identified as the “Acorn Community” (“Acorn”). 1
Heartwood was the “principal residence” or “main dormitory” at Acorn, having bedrooms both
upstairs and downstairs. It was also the location of Acorn’s main office, kitchen and dining area.
In early September 2013, Secret met Acorn member Paxus Calta at a community
conference with a sister community and accepted Calta’s invitation to come to Acorn as a guest.
Calta did not specify the duration of Secret’s invitation to stay at Acorn. While at Acorn, Secret
camped in a tent on the Acorn property, but attended some of the weekly meetings at Heartwood
and ate some of his meals there. After a week at Acorn, Secret asked if he could extend his stay
as an intern. Calta testified that some of the Acorn members, “including myself, were not yet
comfortable with the idea of [Secret] staying on,” so they deferred their decision about Secret’s
extension. According to Acorn member Daniel Cook, Secret “seemed kind of distracted and
kind of rough. He didn’t really take instruction super well.” At the end of September, Calta
further explained, the Acorn members “looked at [their] numbers [and] realized [they] weren’t
going to have bedrooms for [Secret] and some other people [for the approaching winter months]
after Thanksgiving, so [Calta] told [Secret] that he was going to have to find someplace else to
go just before Thanksgiving.” Calta also advised Secret, however, that he was “making
members feel uncomfortable [because] his behavior had been somewhat odd and that if his
behavior [did not improve] he would have to leave immediately rather than just before
Thanksgiving.”
Secret continued on as a guest at Acorn for approximately two more weeks, which ended
on the day of the fire at Heartwood. Around 5:00 a.m. that morning, Calta, while on a computer
1
As explained at trial by one of the Acorn members, “[t]he people who live and work [at
Acorn] share the income that’s generated and [their] collective income satisfies all the needs of
the people who are there.”
2
in an office on the first floor at Heartwood, smelled smoke and discovered that the kitchen was
on fire. Calta and another Acorn member, who had also discovered the fire at about the same
time, yelled to the others in the building that it was on fire, after which all of the occupants
managed to evacuate without serious injury. At trial, the identities of at least nine individuals
who were in Heartwood at the time of the fire were established. 2 Because of the smoke and
flames that had spread to the stairway leading to the second floor, four of those individuals were
trapped on the second floor and had to escape by climbing out of their bedroom windows onto a
porch roof, and then jumping to the ground. Some of those who exited the building from the first
floor detected a liquid that appeared to be gasoline or diesel fuel on the floor of the hallway near
their bedrooms and the office where Calta had been working. Calta also saw fuel cans in the
main living room next to the office and grabbed one of them, which was actually empty, and
carried it outside. It was “absolutely” unusual to see fuel cans in the house, he explained,
because they were normally stored about 200 meters away in a barn. After the fire was
extinguished, everyone that was residing at Acorn was accounted for with the exception of
Secret.
Special Agent Peter Lazear, an arson expert with the Virginia State Police (“VSP”) who
investigated the Heartwood fire, opined at trial that the fire did not start accidentally. Lazear
began his investigation at Heartwood on the morning of the fire. In examining the debris from
the fire, he discovered the remains of what appeared to be a five-gallon plastic gasoline
container. He collected samples of the debris for forensic analysis and they tested positive for
gasoline. In the dining room, Lazear found two containers full of diesel fuel and paint thinner,
2
These nine individuals, who accounted for Secret’s convictions on the nine counts of
attempted first-degree murder, were as follows: Ken Bezilla, Calta, Bonnie Cook, Cassidy Cook,
Daniel Cook, Margaret Cook, Jennifer Hare, Clifton Henley and Irena Hollowell.
3
respectively, which would have accelerated the growth of the fire had it not first been
extinguished. He also found a five-gallon gasoline container on the front porch. In addition,
Lazear submitted for analysis traces of the liquid from the fuel container that Calta removed
from the living room, which was identified as “fuel oil #2, slash, diesel fuel, a heavy petroleum
distillate.”
Lazear’s examination of the stairway revealed that “the fire was beginning to extend
across the stairwell and up the stairwell.” He there observed the “depositing of soot from very
thick, heavy dark smoke that would have encompassed this stairwell and was starting to move
into the center of the structure.” It was Lazear’s expert opinion that a fire that produced such
markings would have “engulf[ed]” the entire structure as it continued to burn had it not been
extinguished.
B. Lazear’s Interview with Secret and Secret’s Confession
Also as part of his investigation on the day of the fire, Lazear interviewed various Acorn
members and was informed of Secret’s status at Acorn, his odd behavior and his sudden absence.
Based on those interviews, Lazear considered Secret a suspect in the investigation by the time
Lazear left the Acorn property late that afternoon. After returning to the VSP facility in
Richmond, Lazear received a call regarding Secret from VSP Special Agent Del Roberts, who
had assisted Lazear with the investigation. Roberts informed Lazear that, according to the
Louisa County Sheriff’s Department (“LCSD”), Secret had returned to Acorn. Roberts then
asked Lazear if he wished to speak with Secret that evening, and, if so, would he like to speak to
Secret at Acorn or the Louisa County Sheriff’s Office (“Sheriff’s Office”). Lazear stated that he
did want to speak with Secret and would prefer to do so at the Sheriff’s Office “if Mr. Secret was
4
willing to go there of his own accord.” 3 While driving back to Louisa County, Lazear received a
follow-up call from Roberts informing Lazear that Roberts would be meeting Lazear with Secret
at the Sheriff’s Office.
After arriving at the Sheriff’s Office, Lazear did not discuss Secret’s status with anyone
as he proceeded to the interview room, where Secret was waiting alone, without restraints of any
kind and seated at a table. Lazear subsequently engaged in conversation with Secret for
approximately 30 minutes without specifically mentioning the fire. Lazear then asked Secret,
“So what about Acorn made you start the fire in the kitchen this morning?” About 12 minutes
later, Secret admitted to starting the fire, stating: “I dumped a whole bunch of fuel in there, then
threw a thing full of lit matches into some of the fuel.” At that point, Lazear read Secret his
Miranda rights. Secret indicated that he was familiar with those rights and was waiving them,
and would continue to speak with Lazear. Lazear continued the interview for about 30 more
minutes during which Secret provided detailed inculpatory statements about his actions in setting
fire to Heartwood. Secret was then arrested and subsequently indicted for arson and 18 counts of
attempted first-degree murder.
C. Motion to Suppress Secret’s Confession
Secret filed a pre-trial motion to suppress both his pre- and post-Miranda warning
inculpatory statements made to Lazear during the interview at the Sheriff’s Office. First, Secret
claimed that his unwarned statements were inadmissible because he had in fact been in police
3
As Lazear testified at Secret’s suppression hearing, he believed that the Sheriff’s Office
“would be a more private environment for us to have a conversation,” in light of the fact that
Secret was in the midst of “a lot of community members at the Acorn Community [who] all had
exhibited a lot of emotions throughout the day.”
5
custody before Lazear arrived for the interview. 4 In making this argument, Secret relied on the
testimony at the suppression hearing of Roberts and LCSD Deputy Chris Snyder, who were
responsible for Secret’s temporary detention at Acorn and his transportation to the Sheriff’s
Office—with both events involving, inter alia, periods of placing Secret in handcuffs. Agreeing
with Secret’s custody argument and citing Hasan v. Commonwealth, 276 Va. 674 (2008), 5 the
trial court ruled that Secret’s unwarned statements were inadmissible, and that ruling was not
appealed by the Commonwealth.
Second, in regard to his post-warning statements, Secret claimed that Lazear elicited
those statements by using a deliberate two-step interrogation strategy to circumvent Miranda, a
tactic proscribed in Seibert—consisting of “successive, unwarned and warned phases” that
allegedly deprived Secret of the opportunity to knowingly and intelligently waive his Miranda
rights. Seibert, 542 U.S. at 609. Alternatively, Secret asserted that his warned statements were
4
Under Miranda’s now familiar warnings requirement employed as a prophylactic to
protect against violations of the Self-Incrimination Clause of the Fifth Amendment, prior to any
custodial questioning, “the person must be warned that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444; see id.
(explaining that the privilege against self-incrimination is implicated “when an individual is
taken into custody or otherwise deprived of his freedom by the authorities in any significant way
and is subjected to questioning”). “[F]ailure to give [these] prescribed warnings and obtain a
waiver of rights before custodial questioning generally requires exclusion of any [unwarned]
statements obtained.” Seibert, 542 U.S. at 608 (Souter, J., plurality opinion). See Dixon v.
Commonwealth, 270 Va. 34, 39 (2005) (explaining that, before a suspect in police custody may
be questioned, the Miranda warnings must be given, and a suspect’s statements obtained “in
violation of this rule generally will be subject to exclusion for most proof purposes in a criminal
trial”). See also Seibert, 542 U.S. at 620-22 (Kennedy, J., concurring in judgment) (discussing
limited exceptions for use at trial of statements obtained in violation of Miranda rule); see
generally Ronald J. Bacigal, Criminal Procedure § 7:10 (2017) (same).
5
See Hasan, 276 Va. at 679 (addressing relevant considerations in determining whether a
person is “in custody” under the controlling standard of “a reasonable person in the suspect’s
situation” (citations omitted)).
6
inadmissible under Elstad’s voluntariness standard in light of the totality of the circumstances
involved in his interview with Lazear.
During his testimony at the suppression hearing, Lazear explained why he did not
initially inform Secret of his Miranda rights: “It was my understanding at that time that Mr.
Secret was at the [S]heriff’s [O]ffice of his own free will and accord, so I approached that
conversation as exactly that, just a conversation with a witness that—the same as I had with
many other people that day. I did not feel he was in custody, and I did not feel like he needed to
be read his Miranda warnings at that time.” It was when Secret began to provide Lazear
incriminating information about the fire, Lazear explained, that he “needed to pause the
conversation and advise [Secret] of his Miranda rights.” Lazaer also denied that he was aware
of, or had received training in, a so-called “question first interrogation technique”—like the one
proscribed in Seibert. See Seibert, 542 U.S. at 606.
In addition, as confirmed by the video recording of the interview, Lazear testified that at
no point during the interview did Secret state that he wanted the assistance of an attorney, to end
their conversation, or to leave the interview room. Lazear further stated that Secret was “lucid”
and was responsive to Lazear’s questions. Lazear acknowledged that some of Secret’s responses
could be considered “bizarre,” which prompted Lazear to confirm with Secret that he was not
under the influence of any alcohol or drugs.
Based on the testimony of Lazear, Roberts and Snyder, all of whom the trial court found
to be credible, its review of the video recording of Lazear’s interview with Secret, and its
analysis of Seibert and Elstad, the trial court denied that portion of Secret’s suppression motion
seeking to exclude the admission of his warned statements to Lazear.
7
Regarding Secret’s Seibert-based admissibility challenge, the trial court found that,
pursuant to his communications with Roberts, “Lazear believed that the defendant had agreed to
come voluntarily to speak with him at the Louisa County Sheriff’s Office.” Based on that belief,
Lazear “did not need to administer Miranda warnings until he felt that the defendant was
beginning to incriminate himself.” The trial court also credited Lazear’s testimony that “he had
not been trained in, nor was he familiar with, the two-step interrogation technique” proscribed in
Seibert. Accordingly, the court explicitly found that Lazear made “no deliberate use” of that
technique when interviewing Secret. The court thus determined that there was no Seibert
violation.
Absent Lazear’s deliberate use of a “question-first strategy,” the issue was whether, under
Elstad, Secret’s post-warning statements were “knowingly and voluntarily made.” For that
determination, the trial court “consider[ed] the totality of the circumstances in which the
statements were made.” In doing so, the court found, inter alia, the following:
• “[T]he circumstances under which the interview took place exhibit no element of
coercion whatsoever.”
• “No threats, be they explicit or implicit, were ever made to the defendant . . . throughout
the course of the interview, nor was there any moment when Special Agent Lazear sought
to exploit the previously given unwarranted [sic] statement.”
• “A good portion of the interview was substantially open-ended in which the defendant
could generally discuss his thoughts and feelings.”
• “Special Agent Lazear . . . seemed to have a remarkably good understanding of the
defendant’s [cosmic] theories [and] while they may be somewhat bizarre, they also have
a certain rationality of [sic] them which Special Agent Lazear seemed to understand and
this understanding seemed to be appreciated by the defendant.”
• “The defendant denied being under the influence of either drugs or alcohol, and having
observed his appearance and demeanor during the course of the interview, the [c]ourt
finds no evidence of impairment.”
8
• After being given his Miranda warnings, “the defendant could have concluded, perhaps,
it might be best for him not to say anything further; however, the defendant indicated he
was familiar with the Miranda warnings, that he understood those rights, and when asked
if he wanted to waive them and talk to Special Agent Lazear, he said, quote, sure, end
quote.”
Consequently, the trial court concluded, “the statements made by the defendant following the
administration of Miranda rights were not the product of coercion, were knowingly and
voluntarily made, and, thus, the motion to suppress any statements following the administration
of the Miranda warnings is denied.” The court thus admitted into evidence the portion of those
statements offered by the Commonwealth at trial as part of its case in chief.
D. Motions to Strike Commonwealth’s Evidence of Attempted Murder
Upon the conclusion of the Commonwealth’s case in chief, Secret moved to strike the
Commonwealth’s evidence as to all of the 18 counts of attempted first-degree murder, each of
which named a particular individual victim. First, Secret argued that to the extent the evidence
did not establish that a particular individual was actually in Heartwood at the time of the fire, the
evidence should be struck as to the count naming such individual. The trial court agreed and
struck the evidence on five of the counts. In doing so, the court rejected the Commonwealth’s
argument that proof that an individual regularly resided at Heartwood, without more, was
sufficient.
Additionally, Secret argued that the evidence should be struck on all of the remaining
counts of attempted murder because the Commonwealth had failed to prove that Secret had the
specific intent to kill anyone. Viewing the evidence in the light most favorable to the
Commonwealth, Secret argued, the Commonwealth had at most proved his intent to “commit
arson only and not an attempt to murder.” The trial court disagreed and denied this portion of
the motion to strike. Not only was there evidence that Secret started the fire, the court
9
concluded, but there was also evidence from which “the jury could infer that the immediate,
direct, and necessary consequence of [the fire]” was that the people whom Secret knew were
within the dwelling “would have been consumed within the fire” but for their fortuitous escape.
Secret presented no evidence in his own defense but renewed his motion to strike as to the
remaining counts of attempted first-degree murder, which the trial court again denied.
E. Secret’s Convictions and Appeal
The jury convicted Secret of arson of an occupied dwelling and attempted first-degree
murder on nine of the remaining 13 counts. On a motion to set aside the verdict, Secret again
challenged the admissibility of his post-Miranda warning inculpatory statements and the
sufficiency of the evidence of his specific intent as to each of the attempted murder counts. The
trial court denied the motion on both issues and entered a final judgment of conviction in
accordance with the jury’s verdicts. Secret appealed these rulings to the Court of Appeals of
Virginia. Finding no error, a three-judge panel of the Court of Appeals affirmed Secret’s
convictions in an unpublished opinion. Secret v. Commonwealth, Record No. 0853-15-2
(February 14, 2017). We subsequently awarded Secret this appeal on both issues.
II. ANALYSIS
A. Admissibility of Secret’s Post-Miranda Warning Confession
Secret relies on Seibert and, alternatively, Elstad, to argue, as he did below, that the trial
court erred in refusing to suppress his post-Miranda warning inculpatory statements. In both
Elstad and Seibert, the United States Supreme Court addressed situations where a suspect, like
Secret, while in police custody, made unwarned inculpatory statements in response to police
questioning, and then after receiving and waiving Miranda rights made further inculpatory
statements in response to additional questioning. The issue in each of those cases, as here, was
10
whether the warned statements were voluntary for purposes of admission in the prosecution’s
case in chief at the defendant’s criminal trial.
1. Oregon v. Elstad
In Elstad, a police officer, upon arriving at Elstad’s home to arrest him for burglary,
questioned him about the burglary without first providing Miranda warnings. 470 U.S. at 300-
01. The officer, as he later testified, asked Elstad “if he knew a person by the name of Gross
[Elstad’s neighbor], and he said yes, he did, and also added that he heard that there was a robbery
at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he
looked at me and stated, ‘Yes, I was there.’” Id. at 301. Elstad was subsequently transported to
police headquarters where he was advised of his Miranda rights for the first time. He then
indicated that he understood his rights, wished to speak to the arresting officers, and gave a “full
statement,” providing an oral and written confession regarding his role in the robbery. Id. at
301-302.
An Oregon state trial court, in ruling upon Elstad’s motion to suppress these statements in
his prosecution for the burglary, excluded his first inculpatory statement made at his home
because he had not been advised of his Miranda rights. The court admitted into evidence,
however, Elstad’s written confession based upon the court’s findings that it was “given freely,
voluntarily and knowingly” after Elstad was advised of and waived his Miranda rights. Id. at
302. Following his conviction, Elstad appealed to the Oregon Court of Appeals, arguing that the
trial court erred in admitting his post-warning written confession. Id. at 302-03. The appeals
court agreed and reversed the conviction, reasoning that, “[r]egardless of the absence of actual
compulsion, the coercive impact of [the earlier unwarned statement] remains, because in a
defendant’s mind it has sealed his fate.” Id. at 303. The appeals court concluded that, because of
11
the brief period of time separating Elstad’s unwarned and warned statements, the “coercive
impact” of the unwarned statement had not “dissipated.” Id.
After the Oregon Supreme Court denied the State of Oregon’s petition for review, the
United States Supreme Court granted certiorari “to consider the question whether the Self-
Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made
after proper Miranda warnings and a valid waiver of rights, solely because the police had
obtained an earlier voluntary but unwarned admission from the defendant.” Id. The Supreme
Court answered that question in the negative, and therefore reversed and remanded the case to
the Oregon Court of Appeals. Id. at 318. The Supreme Court concluded that “the dictates of
Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony
are fully satisfied in the circumstances of this case by barring use of the unwarned statement in
the case in chief. No further purpose is served by imputing ‘taint’ to subsequent statements
obtained pursuant to a voluntary and knowing waiver.” Id.
In reaching this conclusion, the Supreme Court made clear that the exclusion of
inculpatory statements based on the police’s failure to administer Miranda warnings “does not
mean that the statements received have actually been coerced, but only that courts will presume
the privilege against compulsory self-incrimination has not been intelligently exercised.” Id. at
310. Indeed, as the Court explained, the Miranda exclusionary rule “sweeps more broadly than
the Fifth Amendment itself” because the Fifth Amendment only prohibits the use of compelled
testimony by the prosecution in its case in chief. 6 Id. at 306-07. As a result, “unwarned
statements that are otherwise voluntary within the meaning of the Fifth Amendment must
6
The Self-Incrimination Clause of the Fifth Amendment ensures that “no person . . .shall
be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.
12
nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s
preventive medicine provides a remedy even to the defendant who has suffered no identifiable
constitutional harm.” 7 Id.
However, once Miranda warnings have been administered to a suspect who has given an
unwarned but voluntary inculpatory statement in response to non-coercive questioning, the
remedial considerations underlying the Miranda exclusionary rule are no longer controlling in
determining the admissibility of the subsequent warned statement. As the Supreme Court
explained in Elstad, “[t]his Court has never held that the psychological impact of voluntary
disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a
subsequent informed waiver.” Id. at 312. Thus, “absent deliberately coercive or improper tactics
in obtaining the initial statement, the mere fact that a suspect has made an 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.” Id. at 314.
In other words, the Miranda warning “conveys the relevant information and thereafter the
7
That is to say, “[t]he prophylactic Miranda warnings . . . are not themselves rights
protected by the Constitution but [are] instead measures to insure that the right against
compulsory self-incrimination [is] protected. Requiring Miranda warnings before custodial
interrogation provides practical reinforcement for the Fifth Amendment right.” Elstad, 470 U.S.
at 306 (quoting New York v. Quarles, 467 U.S. 649, 654 (1984) (internal citations and quotation
marks omitted)); see Miranda, 384 U.S. at 444 (“[T]he prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege against
self-incrimination.”).
13
suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as
an ‘act of free will.’” 8 Id. at 311 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)).
Holding in Elstad that the defendant’s post-Miranda statements were not rendered
involuntary by his unwarned statements, the Supreme Court distinguished between “technical”
Miranda violations and other “actual” violations of the Fifth Amendment’s prohibition on
compelled self-incrimination. Id. at 314, 318.
The Supreme Court thus established in Elstad that, while Miranda requires that an
unwarned yet voluntary admission must be suppressed, “the admissibility of any subsequent
[warned] statement should turn in these circumstances solely on whether it is knowingly and
voluntarily made.” Id. at 309. In short, “[t]he relevant inquiry is whether, in fact, the second
statement was also voluntar[y].” Id. at 318. Accordingly, as with 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. The fact that a suspect
chooses to speak after being informed of his rights is, of course, highly probative.” Id.
2. Missouri v. Seibert
Nearly two decades later, the Supreme Court decided Seibert against the backdrop of the
Elstad decision. Seibert recognized, as explained below, a narrow exception to Elstad
“applicable only in the infrequent case” where the police have used “a two-step questioning
8
Consistent with this view, the Supreme Court explicitly refused in Elstad to give
constitutional dimension to “the psychological impact of the suspect’s conviction that he has let
the cat out of the bag and, in so doing, has sealed his own fate,” which the Oregon Court of
Appeals identified as “a subtle form of lingering compulsion.” Elstad, 470 U.S. at 311. The
Supreme Court reasoned that the Oregon court’s expansive view of Fifth Amendment
compulsion “effectively immunizes a suspect who responds to pre-Miranda warning questions
from the consequences of his subsequent informed waiver of the privilege of remaining silent.”
Id. at 312.
14
technique based on a deliberate violation of Miranda.” Seibert, 542 U.S. at 620-22 (Kennedy, J.,
concurring in judgment) (emphasis added). 9
In Seibert, after her bedridden son, Jonathan, died in his sleep, Seibert feared charges of
neglect. She was present when two of her other sons discussed burning her family’s home and
incinerating Jonathan’s body in order to conceal the circumstances of his death. As part of the
plan, Donald, an unrelated mentally ill teenager living with the family, was to be left in the home
in order to avoid the appearance that Jonathan had been unattended. The fire was then set,
resulting in Donald’s death. 542 U.S. at 604.
Seibert was later arrested, but on instructions from Officer Hanrahan, the arresting officer
did not give Miranda warnings to her. Seibert was taken to an interview room in the police
station, where Hanrahan questioned her for 30 to 40 minutes without Miranda warnings. Id. at
604-05. During that time, Hanrahan squeezed Seibert’s arm and repeated “Donald was also to
die in his sleep [in the house fire that was set].” Id. at 605. Seibert finally confessed that the
plan was for Donald to die in the fire. At that point, Hanrahan gave her a 20-minute break,
returned and administered Miranda warnings, and obtained a signed waiver. He then resumed
his questioning, confronting Seibert with a litany of her unwarned inculpatory statements to
which she repeated the earlier information. Id.
After being charged with first-degree murder for her role in Donald’s death, Seibert
moved to suppress both her unwarned and warned statements made to Hanrahan.
9
See, e.g., United States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007) (“Seibert, rather
than overruling Elstad, carved out an exception to Elstad for cases in which a deliberate, two-
step strategy was used by law enforcement to obtain the postwarning confession.” (emphasis
added)); United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005) (same); United States v.
Williams, 435 F.3d 1148, 1157 (9th Cir. 2006) (same); United States v. Street, 472 F.3d 1298,
1313 (11th Cir. 2006) (same).
15
At the suppression hearing, Officer Hanrahan testified that he made a “conscious
decision” to withhold Miranda warnings, thus resorting to an interrogation
technique he had been taught: question first, then give the warnings, and then
repeat the question “until I get the answer that she’s already provided once.” He
acknowledged that Seibert’s ultimate statement was “largely a repeat of
information . . . obtained” prior to the warning.
Id. at 605-606.
A Missouri state trial court excluded Seibert’s unwarned statements but admitted her
warned statements, and Seibert was convicted of second-degree murder. The Missouri Court of
Appeals affirmed, viewing the case as indistinguishable from Elstad. Id. at 606. In reversing,
the Missouri Supreme Court held that “in the circumstances here, where the interrogation was
nearly continuous, . . . the second statement, clearly the product of the invalid first statement,
should have been suppressed.” Id. (citation omitted). The court reasoned that “Officer
Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the
opportunity knowingly and intelligently to waive her Miranda rights.” Id. (citation omitted).
The court distinguished Elstad on the ground that the Miranda warnings had not been
intentionally withheld in that case. Id. (citation omitted).
On appeal to the United States Supreme Court, the Court affirmed the Missouri Supreme
Court in a split decision, holding that the interrogation technique used in the case “undermine[d]
[Seibert’s] Miranda warnings,” thus rendering her post-warning inculpatory statements
inadmissible. Id. at 616 (Souter, J., plurality opinion); id. at 618 (Kennedy, J., concurring in
judgment). Justice Souter, in authoring the plurality opinion, was joined by three other Justices,
including Justice Breyer, who also authored a concurring opinion. Justice Kennedy, with his
separate concurrence, provided the fifth vote to affirm.
Under the Supreme Court’s settled principles of stare decisis, “[w]hen a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent of five
16
Justices, ‘the holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.’” Marks v. United States, 430 U.S. 188,
193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)); see also Panetti v.
Quarterman, 551 U.S. 930, 949 (2007) (“When there is no majority opinion, the narrower
holding controls.”). “Because Seibert is a plurality decision and Justice Kennedy concurred in
the result on the narrowest grounds, it is his concurring opinion that provides the controlling
law.” 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)); see also United States v. Capers,
627 F.3d 470, 476 (2d Cir. 2010); United States v. Kiam, 432 F.3d 524, 532 (3d Cir. 2006);
United States v. Mashburn, 406 F.3d 303, 309 (4th Cir. 2005); United States v. Courtney, 463
F.3d 333, 338 (5th Cir. 2006); United States v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007);
United States v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006); but see United States v. Ray, 803
F.3d 244, 272 (6th Cir. 2015) (applying Justice Souter’s plurality opinion as controlling).
Justice Kennedy viewed the plurality’s approach to the admissibility issue as “cut[ting]
too broadly” in calling for an “objective inquiry from the perspective of the suspect” in both
intentional and unintentional two-step interrogations, using a multifactor test. Seibert, 542 U.S.
at 621-22 (Kennedy, J., concurring in judgment). Such an approach would undermine the
Court’s “balanced and pragmatic approach to enforcement of the Miranda warning” established
in Elstad. Id. at 620. Describing circumstances in which it would be “extravagant” to conclude
that a deliberate two-step technique had been used, Justice Kennedy explained that “[a]n officer
may not realize that a suspect is in custody and warnings are required. The officer may not plan
to question the suspect or may be waiting for a more appropriate time. Skilled investigators
17
often interview suspects multiple times, and good police work may involve referring to prior
statements to test their veracity or to refresh recollection.” Id. at 620.
Narrowing his focus upon the “deliberate” circumvention of Miranda, id. at 620, Justice
Kennedy believed that the admissibility of post-warning statements “should continue to be
governed by the principles of Elstad” except “in the infrequent case, such as we have here, in
which the two-step interrogation technique was used in a calculated way to undermine the
Miranda warning.” Id. at 622. In his assessment, the police in Seibert deliberately withheld the
Miranda warning “to obscure both the practical and legal significance of the admonition when
finally given.” Id. at 620.
Under Justice Kennedy’s subjective-intent based test, in such cases where “an
interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an
extended interview, postwarning statements that are related to the substance of prewarning
statements must be excluded absent specific, curative steps.” Id. at 621. The sufficiency of the
curative measures, some of which Justice Kennedy proposed, would depend upon their capacity
to “ensure that a reasonable person in the suspect’s situation would understand the import and
effect of the Miranda warning.” Id. at 622. In Seibert, however, no curative measures were
taken, “so the postwarning statements [were] inadmissible and the conviction [could not] stand.”
Id.
3. Secret’s Seibert-Based Challenge
In addressing Secret’s challenge to the trial court’s finding that Special Agent Lazear did
not engage in a deliberate two-step interrogation technique proscribed in Seibert, we consider as
a matter of first impression the appellate standard applicable for review of this finding. We
conclude, as the Virginia Court of Appeals has concluded in addressing the same issue, that the
18
Seibert “deliberateness finding is appropriately reviewed as a factual finding.” Kuhne v.
Commonwealth, 61 Va. App. 79, 92 (2012) (quoting United States v. Narvaez-Gomez, 489 F.3d
970, 974 (9th Cir. 2007)); see also Mashburn, 406 F.3d at 309. Accordingly, in reviewing this
finding, we will apply “the standard applicable to appellate review of determinations of fact by a
trial court,” and “that is, whether the finding is ‘plainly wrong or without evidence to support
[it].’” DeMille v. Commonwealth, 283 Va. 316, 323 (2012) (quoting Commonwealth v. Squire,
278 Va. 746, 751 (2009)); see Commonwealth v. Hilliard, 270 Va. 42, 49-50 (2005).
Furthermore, the burden rests with Secret to establish that the denial of his suppression motion
was reversible error. Branham v. Commonwealth, 283 Va. 273, 279 (2012); Sidney v.
Commonwealth, 280 Va. 517, 522 (2010); Harris v. Commonwealth, 276 Va. 689, 695 (2008).
The trial court’s ultimate factual finding that Lazear did not deliberately use an improper
two-step interrogation technique when interviewing Secret is neither plainly wrong nor without
evidence to support it. At the suppression hearing, the court heard and credited Lazear’s
explanation as to why he did not believe Secret was in custody when Lazear met with him at the
Sheriff’s Office for the interview, but instead thought Secret was there “on his own accord” and
willing to speak. It was for that reason, the court found, that Lazear understandably did not
administer Miranda warnings to Secret when the interview began, doing so only later into the
interview when Secret began to provide inculpatory information about the fire at Heartwood.
The record also supports the court’s additional subsidiary finding that at no time during the pre-
warning phase of the interview was there any “element of coercion whatsoever.” Finally, the
court credited Lazear’s testimony that he had not been trained in, nor was he familiar with, the
two-step interrogation technique.
19
These findings establish precisely one of the above-described scenarios that Justice
Kennedy posited in Seibert as qualifying for review under Elstad—i.e., a police officer, who is
unaware that the suspect is “in custody,” receives an unwarned and yet non-coerced inculpatory
statement during an interview followed by a warned inculpatory statement, without any
deliberate attempt on the part of the officer to circumvent Miranda with a “question first”
interrogation strategy. See Seibert, 542 U.S. at 620; see also United States v. Stewart, 536 F.3d
714, 721 (7th Cir. 2008) (police officer’s subjective belief regarding defendant’s custodial status
was relevant to evaluation of his reasons for not initially giving Miranda warnings).
For these reasons, like the trial court, we reject Secret’s central argument that Lazear’s
conduct falls within Seibert’s proscription because Lazear allegedly chose “to remain willfully
ignorant of the numerous objective, readily discernable facts indicating Secret’s in-custody
status.” (Appellant’s Br. 44). Such conduct, Secret asserts, equates with the employment of an
intentional and coercive two-step interrogation tactic. Nothing in Justice Kennedy’s concurrence
in Seibert supports such an approach, where he indeed explicitly rejected the adoption of an
“objective inquiry.” Seibert, 542 U.S. at 621. In addition, the assertion that an interrogator
unwittingly used some deliberate strategy is a contradiction in terms. Because the trial court’s
factual finding that Lazear did not employ a deliberate two-step interrogation strategy has ample
evidentiary support, that finding is dispositive.
4. Secret’s Elstad-Based Challenge
Next, we consider Secret’s alternative argument that the trial court erred in admitting his
post-Miranda warning statements because they were not knowingly and voluntarily made based
upon the Elstad totality-of-the-circumstances standard. We disagree.
20
For purposes of a Fifth Amendment self-incrimination challenge, “[v]oluntariness is a
question of law, subject to independent appellate review.” Avent v. Commonwealth, 279 Va. 175,
195 (2010) (quoting Midkiff v. Commonwealth, 250 Va. 262, 268-69 (1995)). “Subsidiary
factual questions, however, are entitled to a presumption of correctness.” Id. (quoting Midkiff,
250 Va. at 268). See Miller v. Fenton, 474 U.S. 104, 112-17 (1985) (addressing standard of
review for “voluntariness” of confession and cited by this Court in Midkiff); see also Burket v.
Commonwealth, 248 Va. 596, 611 (1994) (citing Miller); Mueller v. Commonwealth, 244 Va.
386, 394 (1992) (same); Williams v. Commonwealth, 234 Va. 168, 172 (1987) (same); Gray v.
Commonwealth, 233 Va. 313, 324 (1987) (same). Accordingly, as to those subsidiary factual
findings, we will again apply the above-stated standard of review: whether those findings are
“‘plainly wrong or without evidence to support [them].’” DeMille, 283 Va. at 323 (quoting
Squire, 278 Va. at 751).
The test for determining voluntariness is whether the statement was the “product of an
essentially free and unconstrained choice by its maker,” Schneckloth v. Bustamonte, 412 U.S.
218, 225 (1973), or “induced by such duress or coercion that the suspect’s ‘will has been
overborne and his capacity for self-determination critically impaired.’” United States v.
Locklear, 829 F.2d 1314, 1317 (1987) (quoting Schneckloth, 413 U.S. at 225); see Colorado v.
Connelly, 479 U.S. 157, 167 (1986) (holding that “coercive police activity is a necessary
predicate” to finding a confession constitutionally involuntary). In determining whether a
defendant’s will was overborne by police coercion, “courts look to ‘the totality of all the
surrounding circumstances,’ [Shneckloth, 413 U.S.] at 226, including the defendant’s
background and experience and the conduct of the police, Correll v. Commonwealth, 232 Va.
21
454, 464 (1987),” Avent, 279 Va. at 195 (quoting Midkiff, 250 Va. at 268)—i.e., the Elstad
standard.
From our review of the record, we conclude, as did the trial court, that the totality of the
evidence establishes that Secret’s post-Miranda warning inculpatory statements to Lazear were
knowingly and voluntarily made. The record more than sufficiently supports the trial court’s
subsidiary factual findings upon which that conclusion is based. Most significantly, the evidence
supports the trial court’s finding that at no point in the interview, either before or after
administration of the Miranda warnings, was there any “element of coercion whatsoever” on the
part of Lazear that caused Secret to confess. In short, Secret’s statements were “not the product
of coercion,” the court found. Consistent with this finding, the record also supports the court’s
related specific findings that Lazear neither explicitly nor implicitly threatened Secret, that
Lazear did not seek to exploit Secret’s previous unwarned statement, and that the evidence
established that Secret was not under the influence of drugs or alcohol, or otherwise impaired.
Thus, there is nothing to suggest that Secret’s post-Miranda statements were anything but
the “product of an essentially free and unconstrained choice” as a constitutional matter,
Schneckloth, 412 U.S. at 225, Secret’s contentions to the contrary notwithstanding. In
challenging the voluntariness of his post-warning statements, Secret relies heavily on what he
claims was his “altered mental state” at the time of his interview with Lazear, as allegedly
evidenced by some of his “bizarre” comments during the interview. Appellant’s Br. at 36. As
support for this argument, Secret cites Connelly, 479 U.S. at 164, for the proposition that an
accused’s mental condition is relevant to “his susceptibility to police coercion.” Id. Secret’s
reliance on Connelly, however, is not compelling. The trial court here found that, despite
Secret’s “bizarre” comments in the course of his interview, Secret was not impaired, received
22
and understood his Miranda rights, waived those rights, and then “knowingly and voluntarily”
made his warned inculpatory statements. Those findings are supported by the evidence. There is
simply nothing in the record to support the contention that Secret’s bizarre comments, in and of
themselves, established that he was suffering from some kind of “altered mental state” that
negated his statements as an “act of free will” in the context of the Fifth Amendment. Elstad,
470 U.S. at 311 (quoting Wong Sun, 371 U.S. at 486). 10
B. Evidentiary Sufficiency of Secret’s Intent to Commit Murder
We now turn to Secret’s argument that the evidence was insufficient to sustain his
convictions on nine counts of attempted first-degree murder. He contends the trial court erred in
denying his motion to strike the evidence of those crimes because the Commonwealth failed to
prove he possessed the specific intent to commit them. At most, according to Secret, the
Commonwealth proved that he acted from a sense of “general malevolence” in setting fire to
10
We note in this regard that the United States Supreme Court made clear in Connelly
that “voluntariness,” for purposes of Fifth Amendment analysis, “has always depended on the
absence of police overreaching, not on ‘free choice’ in any broader sense of the word.”
Connelly, 479 U.S. at 170. Therefore, the Court explained, “while mental condition is surely
relevant to an individual’s susceptibility to police coercion,” his “mental condition, by itself and
apart from its relation to official coercion” can never “dispose of the inquiry into constitutional
‘voluntariness.’” Id. at 164, 165. That is because “Miranda protects defendants against
government coercion leading them to surrender rights protected by the Fifth Amendment; it goes
no further than that.” Id. at 170-71 (holding that confession of schizophrenic defendant, who
believed he was following the “voice of God” in admitting his crime of murder, was voluntary);
see Elstad, 470 U.S. at 304-05 (explaining that the Fifth Amendment is not “concerned with
moral and psychological pressures to confess emanating from sources other than official
coercion”).
To be sure, as the Supreme Court reaffirmed in Elstad, “[v]oluntary statements ‘remain a
proper element in law enforcement.’ Miranda v. Arizona, 384 U.S. at 478. ‘Indeed, far from
being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are
inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment
privilege is not violated by even the most damning admissions.’ United States v. Washington,
431 U.S. 181, 187 (1977).” Elstad, 470 at 305.
23
Heartwood, which does “not equate to a specific intent to kill.” (Appellant’s Br. at 25). We
reject Secret’s assessment of the evidence and assertion of error.
Familiar appellate principles govern our review of this issue. “When reviewing the
sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be
disturbed unless it is ‘plainly wrong or without evidence to support it.’” Pijor v. Commonwealth,
294 Va. 502, 512 (2017) (quoting Code § 8.01-680). In such cases, “[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.” Id. (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009) (internal quotation
marks omitted). “Rather, the relevant question is, upon review of the evidence in the light most
favorable to the prosecution, whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Dietz v. Commonwealth, 294 Va.
123, 132 (2017) (internal quotation marks omitted)).
First-degree murder includes, among other things, “murder . . . by any willful, deliberate,
and premeditated killing, or in the commission of . . . arson . . . .” Commonwealth v. Herring,
288 Va. 59, 77 (2014) (quoting Code § 18.2-32). “In the context of attempted murder, the
evidence must show ‘specific intent to kill the victim,’” along with an overt act. Id. (quoting
Hargrave v. Commonwealth, 214 Va. 436, 437 (1974)); see id. at 78 (“An attempt [is] any overt
act done with the intent to commit the crime, and which, except for the interference of some
cause preventing the carrying out of the intent, would have resulted in the commission of the
crime.” (quoting Howard v. Commonwealth, 207 Va. 222, 228 (1966))). Whether the intent
required for attempted murder exists “is generally a question for the trier of fact.” Nobles v.
Commonwealth, 218 Va. 548, 551 (1977); see Ingram v. Commonwealth, 192 Va. 794, 801-02
24
(1951) (determination of defendant’s intent “presents a factual question which lies peculiarly
within the province of the jury”).
“Intent is the purpose formed in a person’s mind and may, like any other fact, be shown
by circumstances,” Herring, 288 Va. at 75 (quoting Howard, 207 Va. at 228), including the
“words or conduct” of the alleged offender, id. (quoting Burkeen v. Commonwealth, 286 Va.
255, 259 (2013)). Indeed, “[i]ntent may be, and most often is, proven by circumstantial evidence
and the reasonable inferences to be drawn from proven facts.” Viney v. Commonwealth, 269 Va.
296, 301 (2005) (citing Commonwealth v. Hudson, 265 Va. 505, 512-14 (2003)). Furthermore,
“[i]t is permissible for the fact finder to infer that every person intends the natural, probable
consequences of his or her actions.” Commonwealth v. Perkins, 295 Va. 323, 330 (2018)
(quoting Ellis v. Commonwealth, 281 Va. 499, 507 (2011)).
Here, we conclude the evidence was sufficient to support the jury’s finding that Secret
possessed the requisite intent to kill the nine individuals located within Heartwood when Secret
started the fire there, based on both direct and circumstantial evidence.
At that time, Secret had been residing in a tent on the Acorn property for six weeks,
sharing meals at Heartwood, and attending weekly meetings. He was also told that there was no
room for him to reside at Heartwood or one of its other facilities. The jury could thus infer that
Secret obviously knew Heartwood served as an Acorn dormitory. Also, Secret was becoming
increasingly frustrated with Acorn’s members during his stay there, as the trial court noted in
ruling on Secret’s motion to strike.
It is undisputed that Secret set the fire in the kitchen at Heartwood around 5 a.m. when a
number of the residents would presumably be asleep. Moreover, before doing so, Secret
admitted, he “put a lot of fuel around,” consisting of gasoline and diesel fuel. Not only did he
25
pour the fuel along the first floor hallway near the bedrooms and the office where Calta was
working early that morning, but he also placed two cans of fuel in the dining room, which would
have accelerated the fire. Secret also admitted that while “dump[ing]” the fuel, he saw Calta in
the office and heard people “walking around.” After seeing Calta, Secret explained, “I was
trying to [walk] ginger[ly], but at that point I was bookin’ it. Like I . . . had a plan, like, to . . .
dump fuel, dump fuel, dump fuel, light, but I didn’t really follow through on the last dumping of
fuel, probably because [Calta] was in the computer room.” As Secret subsequently described it,
“there was so much fuel everywhere I was like, ‘Ah, god!’ In seconds, [Calta] was about to start
smelling all the fuel. I knew that. I was like, ‘I gotta get the f**k outta here quick!’” At that
point, Secret grabbed two sets of car keys from the pantry, started the fire, and fled into the
woods after trying but failing to start two different automobiles located nearby. Describing his
emotions to Lazear, Secret stated that, immediately after setting the fire, he thought to himself:
“Jesus! I’m the worst! How could I do . . . what was I f**king thinking?”
Based on this evidence, it was entirely rational for the jury to find that Secret intended to
kill the nine individuals located within Heartwood at the time of the fire, as the natural and
probable consequence of his actions was that everyone there would be consumed by the fire but
for their fortuitous escape.
Secret’s reliance on Thacker v. Commonwealth, 134 Va. 767 (1922) in support of his
argument that he possessed only general malevolence and no specific intent to kill at the time of
the fire is misplaced. In analyzing the specific intent requirement for attempted murder, this
Court in Thacker observed:
To do an act from general malevolence is not an attempt to commit a crime,
because there is no specific intent, though the act according to its consequences
may amount to a substantive crime. To do an act with intent to commit one crime
cannot be an attempt to commit another crime though it might result in such other
26
crime. To set fire to a house and burn a human being who is in it, but not to the
offender’s knowledge, would be murder, though the intent was to burn the house
only; but to attempt to set fire to the house under such circumstances would be an
attempt to commit arson only and not an attempt to murder. A man actuated by
general malevolence may commit murder though there is no actual intention to
kill; to be guilty of an attempt to murder there must be a specific intent to kill.
134 Va. at 770-71 (emphasis added). The evidence here establishes that Secret had full
knowledge that Heartwood was undoubtedly occupied by several individuals at the time he set
the fire. Thus, the jury as fact-finder, and the trial court in ruling on Secret’s motion to set aside
the verdict, were wholly justified in rejecting his general malevolence argument in challenging
the specific intent element of his attempted first-degree murder charges.
We also reject Secret’s related argument that there was insufficient evidence to prove that
he possessed the requisite intent as to anyone, other than perhaps Calta, because there was no
evidence that he was aware of the specific identity of anyone else within Heartwood at the time
of the fire. Such knowledge, however, was not required. That is because “[t]he mental state
required for attempted murder is the intent to kill a human being, not a particular human being.”
People v. Stone, 205 P.3d 272, 274 (Cal. 2009) (emphasis in original). 11 Thus, it was enough, as
the jury reasonably concluded based upon Secret’s own admissions, that he was aware that
11
As the court in Stone cogently explained:
[A] person who intends to kill can be guilty of attempted murder even if the
person has no specific target in mind. An indiscriminate would-be killer is just as
culpable as one who targets a specific person. One of Bland’s kill zone examples
[in People v. Bland, 48 P.3d 1107, 1118 (2002)] involved a bomber who places a
bomb on a commercial airplane intending to kill a primary target but ensuring the
death of all passengers. We explained that the bomber could be convicted of the
attempted murder of all the passengers. But a terrorist who simply wants to kill as
many people as possible, and does not know or care who the victims will be, can
be just as guilty of attempted murder.
Stone, 205 P.3d at 278 (internal citation omitted).
27
Heartwood was occupied by Calta and others at the time he started the fire; and that the natural
and probable consequence of his actions was that all of them—whomever they happened to be—
would be killed by the fire. Accordingly, it was rational for the jury to have found Secret guilty
of attempted first-degree murder as to each of the nine individuals that the Commonwealth
proved were located within Heartwood when Secret started the fire. 12
III. CONCLUSION
For the foregoing reasons, we conclude that Secret’s post-Miranda warning inculpatory
statements were voluntary, and thus admissible, and that the evidence was sufficient to establish
his specific intent to commit attempted first-degree murder when he started the fire at
Heartwood. Accordingly, we affirm the judgment of the Court of Appeals upholding his
convictions for arson of an occupied dwelling and nine counts of attempted first-degree murder.
Affirmed.
12
We also note that, in challenging his attempted first-degree murder convictions, Secret
argues extensively about the trial court’s following comments made during argument on Secret’s
motion to strike: “[W]e don’t have any evidence before the jury that [Secret] specifically
intended to kill any person individually. The only evidence [we] believe[ ] we have is that he
basically intended to kill the people who were there” at Heartwood. First, contrary to Secret’s
contentions, there was nothing inconsistent about this comment. It was an accurate assessment
of the evidence, which, as addressed above, satisfied the specific intent element of attempted
murder. That is, the evidence sufficiently established that Secret intended to kill all of the
individuals located within Heartwood at the time he started the fire, even if he did not know the
specific identity of the individuals that were in the facility at that time, other than Calta. Second,
as a matter of appellate review, on a sufficiency challenge to a criminal conviction by a jury, the
relevant inquiry is not the trial court’s comments about the evidence on a motion to strike, but
rather a review of the evidence to determine whether any rational fact-finder could have found
the essential elements of the crime beyond a reasonable doubt.
28