David James Bunton v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
DAVID JAMES BUNTON
MEMORANDUM OPINION * BY
v. Record No. 1157-99-1 JUDGE JAMES W. BENTON, JR.
OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Jerome B. Friedman, Judge
Robert Wagner (Donald R. Lee, Jr.;
Frederick R. Gerson; Wagner & Wagner;
Virginia Law & Government Affairs, P.C., on
briefs), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
A jury convicted David James Bunton of second degree
murder, robbery, and use of a firearm while committing a felony.
On this appeal, Bunton contends the trial judge erred by 1)
finding Bunton's inculpatory statement voluntary and 2) ruling
that when he made the statement he was not in custody and had
not clearly asserted his right to counsel. For the reasons that
follow, we hold that the statement was made while Bunton was in
custody, and we reverse the convictions and remand for a new
trial.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
On November 7, 1995, City of Virginia Beach Police
Detective Al Byrum spoke to Bunton briefly at his home because
the detective suspected Bunton was implicated in the murder of
Alfonzo Lamont Pablo. The detective knew from his investigation
that Pablo and Bunton had spoken by phone immediately prior to
Pablo's death. After the detective's initial conversation with
Bunton, he secured search warrants for Bunton's residence and
for samples of Bunton's hair and blood. The detective testified
that Bunton was the only suspect in the case and that the police
had Bunton under intermittent surveillance for two days.
When the detective returned to Bunton's residence the next
day, he told Bunton he "needed to talk to him" about "an
investigation . . . that [Bunton] could be of assistance on."
He asked if Bunton would "mind just riding with me down to
police headquarters . . . to [view] . . . some pictures." When
Bunton asked the detective whether he was required to accompany
him, the detective responded, "I'm just needing your assistance
on an investigation." The detective testified that he did not
tell Bunton what the investigation involved until they arrived
at the police station and that Bunton did not ask him. There is
no evidence that the detective told Bunton he was under arrest,
put Bunton in handcuffs, or informed Bunton he was not required
to accompany the detective to the police station. Although the
detective knew Bunton's home would be searched after he and
- 2 -
Bunton left for police headquarters, he did not show Bunton the
search warrants for his home and his person.
When they arrived at the police headquarters, the detective
showed Bunton several photographs. After Bunton identified one
photograph as Pablo, the detective began questioning him further
about how he knew Pablo and when he had last seen Pablo. The
detective assured Bunton that he was "not interested in
narcotics transactions" and continued to ask him when and where
he last saw Pablo. Bunton said that he met Pablo to buy drugs
around "eleven thirty, twelve, quarter to twelve." The
detective then asked Bunton if he knew that Pablo sometimes
carried a gun and asked Bunton if he knew Pablo was dead.
Bunton answered "no" to both questions.
The detective told Bunton that he did not believe that
Bunton was "involved in this" and continued to ask him
questions. He told Bunton that Pablo was armed the night he
died, that he did not think Pablo's death was "caused by anybody
except for [Pablo]," and that he knew Pablo "could be rather
abusive." When the detective asked Bunton to take a polygraph,
Bunton refused.
The detective told Bunton that he knew the drug transaction
had taken place at a different location and at a later time.
Bunton then admitted that it had taken place at a different
location and that he had lied because he read in the paper that
Pablo had been killed. The detective later asked Bunton if
- 3 -
Pablo had tried to pull a gun on him and said, "[i]t's because
of the way we found him and the way his weapon was indicates
that he was getting ready to do something else." The detective
then assured Bunton that, "if [Pablo] initiated something here,
. . . and your only recourse was to respond back, then this is a
very minimal situation." Soon thereafter, Bunton asked if he
could go to urinate. In response, the detective said, "I'd
rather sit here and talk to you, a minute, but I'll let you take
one, let me ask you something." After the detective spoke for
some time, Bunton asked again if he could go to urinate. The
detective responded, "Will you talk to me about it?" After the
detective tried again to convince Bunton to tell him what
happened, Bunton once more asked if he could go to urinate.
Approximately five minutes after Bunton's original request, the
detective acquiesced when Bunton promised to tell him what
happened upon his return.
Shortly after they returned to the room, Bunton said, "you
make this sound like you're sure I did something now," and said
"I need to, I guess I need to talk to an attorney." The
detective responded, "You're not under arrest." Bunton said, "I
know, but you're talking about, you're not under arrest you're
saying, you're making it sound like I'm involved with his
death. . . . That's what you're making it sound like." Bunton
stated six times that he wanted to talk to an attorney. Each
time the detective told him you're not under arrest or said
- 4 -
something else to distract him. Starting to leave, Bunton said,
"Well, . . . if I'm not under arrest, I mean, I'd like you to
give me a ride home." When the detective continued to question
him, Bunton asked, "if I were to tell you something that you
wanted to hear, I mean, what happens then? . . . Am I free to
walk out of here?" The detective responded, "I don't understand
what you're saying." When Bunton said affirmatively, "I'm going
to talk to a lawyer . . . let's go home," the detective gave
Bunton the search warrant to take his blood and said, "Here's
the search warrant on your, on your person. I'll execute it."
The detective then left with Bunton. Bunton had asked seven
times if he could go home.
After the detective returned to the room with Bunton,
Bunton again asked, "Can I go home and talk to my parents." The
detective responded, "David, you can sit here, . . . tell me
what happened and then you and I can get right in the car and
I'm going to drop you off right at your house." The detective
told Bunton that he would not arrest him today if he would "tell
me what happened," but that if Bunton left everything would be
"off" and he would "go ahead and maximize it." He also told
Bunton that he knew Bunton "didn't mean for this to come about"
and told Bunton "you can walk" if he would "just tell . . . what
happened."
After spending four hours at police headquarters, Bunton
told Byrum that he shot Pablo in self-defense. He said there
- 5 -
was a dispute between them concerning a previous transaction in
which Pablo had given him some defective cocaine. When he tried
to remedy the matter with Pablo, Pablo "said something, like
I'll kill you and started reaching for a gun." Bunton said he
shot Pablo with a sawed-off shotgun. After Bunton made these
statements, the detective took him home. At no time during the
interrogation did the detective advise Bunton of his Miranda
rights. The police arrested Bunton several hours after the
detective took Bunton home.
Bunton moved to suppress his statement and argued that his
statement was involuntary and that his Miranda rights were
violated. The trial judge denied the motion, ruling that when
Bunton made his statement he was not in custody, his statement
was voluntary, and he did not have to be informed of his Miranda
rights. At trial, a jury convicted Bunton of second degree
murder, robbery, and use of a firearm while committing a felony.
II.
Bunton contends that when he confessed to the killing he
was in custody and should have been advised of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The trial
judge found that in his "opinion . . . [Bunton] was not in
custody at the time he made the statements that later ended up
incriminating him."
The protections afforded by Miranda apply when a person is
subjected to custodial interrogation. See Edwards v. Arizona,
- 6 -
451 U.S. 477, 486-87 (1981); Tipton v. Commonwealth, 18 Va. App.
832, 835, 447 S.E.2d 539, 540 (1994). The United States Supreme
Court has defined custodial interrogation 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, 384 U.S. at 444.
In determining whether a person was "in custody" for
purposes of Miranda, we must examine the circumstances of each
case, with "the ultimate inquiry [being] simply whether there is
a 'formal arrest or restraint on freedom of movement' of the
degree associated with formal arrest." Ford v. Commonwealth, 28
Va. App. 249, 256, 503 S.E.2d 803, 806 (1998) (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983)). In making
this determination, we must view the circumstances from the
perspective of "how a reasonable [person] in the suspect's
position would have understood his situation." Berkemer v.
McCarty, 468 U.S. 420, 442 (1984). Thus, "the initial
determination of custody depends on the objective circumstances
of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being
questioned." Stansbury v. California, 511 U.S. 318, 323 (1994).
Ruling that the interrogation was noncustodial, the trial
judge found persuasive that "the detective picked up the
defendant and the defendant sat in the front seat of the car
. . . [and that they] entered in the front and not through the
- 7 -
sally port as people who are arrested enter." He also noted
that during the interrogation the detective told Bunton he was
not under arrest and was free to leave and that the interview
room door was not completely closed. The trial judge failed to
assess, however, many of the circumstances which are crucial to
determining whether a suspect is in custody. Among the factors
that should be considered are "whether a suspect is questioned
in familiar or neutral surroundings, the number of police
officers present, the degree of physical restraint, . . . the
duration and character of the interrogation, [w]hether or when
probable cause to arrest exists[,] . . . when the suspect
becomes the focus of the investigation[,] '[t]he language used
by the officer to summon the individual, the extent to which he
or she is confronted with evidence of guilt, the physical
surroundings of the interrogation, the duration of the detention
and the degree of pressure applied to detain the individual.'"
Wass v. Commonwealth, 5 Va. App. 27, 32-33, 359 S.E.2d 836, 839
(1987) (citations omitted).
The record establishes that Bunton did not have any
extensive experience with the criminal justice system; it
establishes that he had only two previous charges for driving
under the influence. His lack of experience with the criminal
justice system is significant because when the detective asked
Bunton if he would "mind just riding . . . down to police
headquarters," Bunton asked whether he was required to accompany
- 8 -
the detective. Significantly, the detective did not tell him he
could refuse. Instead, he said "I'm just needing your
assistance on an investigation." At that time, Bunton was a
suspect in the murder. The detective had already obtained
warrants to search Bunton's home and his person. The detective
did not tell Bunton, however, that he was not under arrest.
Indeed, the detective did not tell Bunton that he was not under
arrest until Bunton made his first request for counsel, more
than two hours after the interrogation began.
Although the detective told Bunton two hours into the
interrogation that he was free to leave, this Court has held
"that informing a suspect that he is not in custody and is free
to leave does not necessarily mean that he is not in custody."
Id. at 33-34, 359 S.E.2d at 840. Moreover, Bunton obviously
thought he had to have the detective's permission even to go to
the bathroom. The detective's conduct reinforced that belief
because Bunton asked three times before the detective relented.
Indeed, although Bunton asked the detective to let him go home
at least seven times before he confessed, the detective did not
agree to do so until after Bunton confessed. In addition,
Bunton reasonably could have believed he could not leave without
the detective's cooperation because the detective drove him to
the police station.
Other evidence also proves that when the detective
interrogated Bunton at the police station, the circumstances
- 9 -
effectively rendered the interrogation custodial. The
interrogation occurred in a small, closed room in the police
station. By virtue of the detective's insistence that Bunton
stay and answer questions and Bunton's lack of experience of
this nature with the police, Bunton had no basis upon which to
conclude that he had not been deprived of his freedom to leave.
Bunton asked the detective for permission to go to the bathroom
and repeatedly asked the detective to take him home, without
success. At key points in the interrogation, the detective
moved his chair closer to Bunton, confining Bunton to a corner
of the room. He repeatedly lied to Bunton during the course of
the interrogation. Moreover, each of the six times Bunton said
he wanted a lawyer, the detective tried to distract him by
telling him he was not under arrest or by asking Bunton another
question. The detective also threatened Bunton that if he
stopped talking to him and called a lawyer, the authorities
would have to "maximize the situation."
We hold that these circumstances objectively conveyed to
Bunton that he had been "deprive[d] . . . of his freedom to
leave or freedom of action [, which] render[ed] him in custody
for purposes of Miranda." Wass, 5 Va. App. at 32, 359 S.E.2d at
839. Because Bunton confessed after questioning by the police,
while he was deprived of his freedom of action in a significant
way and before he had been given Miranda warnings, his
confession should have been suppressed, see Wass, 5 Va. App. at
- 10 -
35, 359 S.E.2d at 840, and should not have been admitted in
evidence. See Dean v. Commonwealth, 209 Va. 666, 667-68, 166
S.E.2d 228, 230 (1969).
For these reasons, we hold that the trial judge erred in
refusing to suppress the statement. Because the statement must
be suppressed, we need not address whether it was voluntary.
Accordingly, we reverse Bunton's convictions and remand for a
new trial.
Reversed and remanded.
- 11 -