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WEBER v. COMMONWEALTH OF VIRGINIA


WEBER v. COMMONWEALTH OF
VIRGINIA


FEBRUARY 17, 1998
Record No. 0621-97-1

FREDERICK WEBBER, S/K/A
FREDERICK WEBER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE JERE M. H. WILLIS, JR.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Marc Jacobson, Judge
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia

James O. Broccoletti (Zoby & Broccoletti, on briefs), for
appellant.

Eugene Murphy, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


On appeal, Frederick Weber contends: (1) that the trial court
erred in refusing to suppress statements he made to the police;
(2) that the evidence was insufficient to support his conviction
for second?degree murder; and (3) that the trial court erred in
refusing to declare a mistrial due to the prosecutor’s improper
comments. We affirm the judgment of the trial court.

I. MOTION TO SUPPRESS

A. BACKGROUND

On November 17, 1994, around 7:00 p.m., Frederick Weber and
his wife, Robin Weber, brought their twenty?nine?day?old son,
Andrew Joseph Weber, to Norfolk Sentara General Hospital. Norfolk
Police Investigators Evans and Chupik, who were at the hospital
on unrelated business, learned that the circumstances suggested
child abuse. Beginning at 8:05 p.m., Evans spoke with Weber for
approximately twelve minutes concerning the baby’s injuries.
Evans and Chupik later learned from Dr. Arlo Zaritsky that the
baby’s injuries were consistent with Shaken Baby Syndrome.[1]

The baby was transferred to Children’s Hospital of the King’s
Daughters, where he died on November 27, 1994.

On November 17, 1994, from 9:00 p.m. until 9:25 p.m., at
Children’s Hospital and in the presence of a child protective
services worker, Evans spoke with Weber and his wife concerning
what had happened to the baby. At 10:55 p.m., Weber and his wife
came out of the intensive care unit. Chupik asked Weber, who was
visibly upset, how he was doing. Weber replied that he was
watching his son die and that the doctor had accused him of
causing the baby’s injuries. He then said, "I don’t want to
talk to anybody."

Shortly thereafter, Evans and Chupik told Weber and his wife
that "[they] needed to talk to them and [they would] like
for them to come down to the Police Operations Center."
Weber testified that when he was asked to go to the police
station, he told the officers that he "had talked to [his] mother?in?law and [he] wanted to talk to ?? would like to
talk to an attorney first." The police officers testified
that Weber did not ask to speak to an attorney. Weber and his
wife accompanied the officers and were driven to the police
station in a police car. Neither was arrested nor placed in
handcuffs.

Upon arriving at the police station at 11:12 p.m., Weber and
his wife were placed in separate rooms. Evans and Chupik advised
Mrs. Weber of her Miranda rights. She requested an
attorney, and they questioned her no further.

Shortly after 1:00 a.m., Weber received a "Legal Rights
Advice Form," asking him, inter alia, whether
he understood that he had a right to remain silent, that he had a
right to a lawyer, and that a lawyer would be provided if he
could not afford one. He read the form and wrote,
"Yes," below each question on the form. He also wrote,
"Yes," in the spaces indicating that he understood his
rights and that he wished to "waive these rights and
desire[d] to make a statement." Weber acknowledged on the
form that "[t]his statement is completely free and voluntary
on my part without any threat or promise from anyone." He
signed the form at 1:11 a.m. Evans then interviewed Weber for
thirty?six minutes. During the interview, Weber stated that the
baby went limp and he shook and slapped the baby in an attempt to
revive him. After the interview, Weber was given a soft drink and
used the rest room.

The officers interviewed Weber again from 3:00 a.m. until 3:38
a.m. At 4:05 a.m., Chupik took Weber outside for ten minutes, to
get some fresh air and to smoke a cigarette. From 4:20 a.m. until
4:56 a.m., Weber tape?recorded a statement. At 6:35 a.m., Weber
consented to Chupik’s request to search his home. At 6:36 a.m.,
Weber went to the bathroom. At 7:50 a.m., Evans arrested Weber on
a charge of felony child neglect.

From 9:07 a.m. until 9:40 a.m., Weber reviewed, corrected,
initialed, and signed a copy of his transcribed statement. When
asked at 10:06 a.m. whether he needed or wanted anything, he
replied, "no." At 10:14 a.m., Weber asked to call a
friend, "who might have some information about a
lawyer." This request was denied.

Weber was taken to the bathroom at 10:28 a.m. and was given a
soft drink at 11:40 a.m. He agreed to a polygraph examination,
which was conducted at 1:12 p.m. Weber testified that before
agreeing to the polygraph examination, he told the police,
"I would like to talk to an attorney about it first."
The officers denied that Weber made that request. The polygraph
examiner asked Weber whether he had been sleeping. Weber replied
that he had taken "cat naps." The examiner displayed a
copy of the legal rights form that Weber had signed, and advised
him that those legal rights still applied. At 1:17 p.m., Weber
declined the examiner’s offer of water.

At 2:22 p.m., Weber was asked again whether he wanted anything
to eat or drink or whether he needed to use the rest room. He
declined the offer of food or drink but accepted a cigarette.
Officers interviewed Weber from 2:47 p.m. until 3:30 p.m., and
from 3:40 p.m. until 4:20 p.m.

From 4:24 p.m. until 4:55 p.m., Sergeant Williams and
Investigator Evans interviewed Weber, who then admitted shaking
the baby before the baby went limp. Weber testified that the
officers told him that "they would be taking me back to see
my son after they had gotten what they needed." The officers
denied having made that statement. After confessing, Weber began
crying very hard, and Williams brought him a glass of water. From
5:15 p.m. until 5:25 p.m., Weber made an audio recording of his
statement. The statement included the following dialogue:

BY INV. CHUPIK:

Q. Fred, you’ve been down here quite a long time. Have you
been treated well during all this time and been offered the
use of our facilities and given something to drink and
offered something to eat during all this?

A. Yes.

BY INV. EVANS:

Q. Has anyone threatened you in any way?

A. No.

After recording his statement, Weber used the rest room, went
outside, returned, and was given a meal from a fast?food
restaurant. From 6:56 p.m. until 7:05 p.m., Weber reviewed,
corrected, and signed his transcribed statement. He initialed the
top and bottom of each page. He was then transferred to another
location for booking.

The trial court denied Weber’s motion to suppress the
statements he made to the police.

B. PRE?CUSTODIAL ASSERTION

Weber contends that the police violated his rights under Miranda
v. Arizona
, 384 U.S. 436 (1966), by continuing to
question him after he stated at the hospital that he did not want
to talk to anybody. Because Weber was not in custody at that
time, this assertion did not invoke Miranda protections.

In a custodial interrogation:

Once warnings have been given, the subsequent procedure is
clear. If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain
silent, the interrogation must cease. At this point he has
shown that he intends to exercise his Fifth Amendment
privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion,
subtle or otherwise.

Miranda, 384 U.S. at 473?74. Miranda forbids
continued interrogation of an individual in custody after he has
invoked his right to remain silent. Michigan v. Mosley,
423 U.S. 96, 101 (1975). The requirement that police
officers "scrupulously honor" a suspect’s desire to
cease questioning derives from the pressures inherent in
custodial interrogation. See id. at 104. However,
the protection afforded by Miranda applies only when a
suspect is subjected to custodial interrogation. Davis v.
Allsbrooks
, 778 F.2d 168, 170?71 (4th Cir. 1985). See
Pruett v. Commonwealth, 232 Va. 266, 272, 351 S.E.2d 1, 4
(1986) (explaining that Miranda does not apply to a police
officer’s general questioning of citizens in the course of the
fact?finding process). Cf. Tipton v. Commonwealth,
18 Va. App. 832, 835, 447 S.E.2d 539, 540 (1994) (holding that
the right to an attorney does not apply when invoked during
non?custodial interrogation).

Weber was not in custody at the hospital. Because he was not
in custody when he stated his desire not to talk, that assertion
did not invoke Miranda to bar the use of his subsequent
statements.

C. RIGHT TO COUNSEL

Weber contends that his continued interrogation by the police
after he requested an attorney violated Edwards v. Arizona,
451 U.S. 477 (1981). We disagree.

First, Weber argues that at the hospital, prior to
accompanying the officers to the police station, he asked to
speak with an attorney.

Edwards held that when an accused, during a custodial
interrogation
, invokes the right to have counsel present, the
police may not resume the interrogation until the individual
re?initiates communications and waives his right to counsel. The
Edwards rule has not been expanded to include
non?custodial demands for an
attorney . . . .

Tipton, 18 Va. App. at 834, 447 S.E.2d at 540 (citation
omitted) (emphasis in original). Weber was not in custody at the
hospital. Accordingly, his assertion at the hospital did not
invoke the rule in Edwards.

Next, Weber argues that the police impermissibly questioned
him after he requested counsel while in custody. See Edwards,
451 U.S. at 484?85. The operation of the Edwards
rule requires an initial finding that the suspect properly
invoked his right to counsel. See Eaton v. Commonwealth,
240 Va. 236, 253?54, 397 S.E.2d 385, 395?96 (1990) (holding
that a suspect must assert his right to counsel clearly); Midkiff
v. Commonwealth
, 250 Va. 262, 266, 462 S.E.2d 112, 115 (1995)
(assertion must be "clear and unambiguous").

"Whether an individual requested counsel is a factual
determination, and that finding will not be disturbed on appeal
unless clearly erroneous." Pugliese v. Commonwealth,
16 Va. App. 82, 87, 428 S.E.2d 16, 21 (1993) (citation omitted).
Evans, Chupik and Williams all denied that Weber requested an
attorney, "an event which police officers would be expected
to observe and remember." Id. The trial court
"believe[d] and accept[ed] the testimony of the
investigative officers that the defendant never clearly and
unambiguously invoked his right to counsel." The evidence
supports this ruling.

D. VOLUNTARINESS OF STATEMENT

Weber contends that the length and circumstances of his
custody and interrogation render his statements to the police
involuntary as the products of duress and coercion.

In Bottenfield v. Commonwealth, 25 Va. App. 316, 487
S.E.2d 883 (1997), we stated that:

The Commonwealth has the burden to prove, by a
preponderance of the evidence, that a defendant’s confession
was freely and voluntarily given. In determining whether a
statement or a confession was voluntary, the trial court must
decide whether the statement was the "product of an
essentially free and unconstrained choice by its maker,"
or whether the maker’s will "has been overborne and his
capacity for self?determination critically impaired."
In so deciding, the trial court must look to "the totality
of all the surrounding circumstances
." The court
must consider the defendant’s age, intelligence, mental and
physical condition, background and experience with the
criminal justice system, the conduct of the police, and the
circumstances of the interview. Because only state action may
violate a criminal defendant’s due process rights,
"coercive police activity is a necessary predicate to
the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth
Amendment."

Id. at 323, 487 S.E.2d at 886?87 (citations and
quotations omitted) (emphasis in original).

Weber completed high school, attended a year of college,
completed two years of advanced electronics training in the
United States Navy and was graduated from a private investigation
school. He acknowledged that he understood his Miranda
rights and signed a form stating that he wished to make a
statement to the police. Before administering the polygraph
examination, the polygraph examiner reminded Weber that he could
assert his legal rights. Evans, Chupik and Williams testified
that they neither threatened Weber nor promised him anything in
return for his statement. In his final statement, Weber confirmed
that the police had not threatened him and that he had been well
treated. He subsequently reviewed, corrected and signed this
statement.

The lengthy course of interrogation raises concern as to
whether the duration and constraints of custody amounted to
coercion. However, the interviews themselves were relatively
short. Before, during and after the interviews, Weber was treated
with respect. He was afforded necessary comforts. He was provided
food, drink, cigarettes, and the use of rest room facilities. He
took short naps. On more than one occasion, he went outside for
fresh air. He never protested that he felt tired or weakened.

The trial court found that Weber’s statements were the product
of an essentially free and unconstrained choice and that Weber’s
will was not overborne despite the circumstances and conditions
of his custody. The trial court found no evidence of police
promises or "trickery." The record supports these
findings.

On appeal from a trial court’s decision on a suppression
motion, "it is clear that we must conduct an independent
review of the question whether a confession is voluntary. However
in making that determination, we are bound by the trial court’s
subsidiary factual findings unless those findings are plainly
wrong." Wilson v. Commonwealth, 13 Va. App. 549, 551,
413 S.E.2d 655, 656 (1992). Based upon our review of the record,
we hold that Weber’s statements were made voluntarily. He waived
his right to remain silent knowingly and voluntarily, without
coercion, threats or promises, and after being fully advised of
his Miranda rights. Accordingly, the trial court did not
err in denying his motion to suppress his statements to the
police.

E. DELAY IN BRINGING BEFORE MAGISTRATE

Weber contends that the police delayed unnecessarily in
bringing him before a magistrate. He argues that the delay
transformed his lawful custody into an unconstitutional
detention, requiring exclusion of any evidence derived from that
detention.

Code ? 19.2?80
provides, in pertinent part:

[A]n officer making an arrest under a warrant or capias
shall bring the arrested person without unnecessary delay
before and return such warrant or capias to a court of
appropriate jurisdiction . . . .

However:

[N]ot every violation of the requirement that a
suspect be taken before a magistrate without unnecessary
delay results in the exclusion of evidence. Only in a
situation where the delay in taking a suspect before a
magistrate resulted in the loss of exculpatory evidence
have we concluded that the defendant’s due process rights
were violated and reversed his conviction. In all other
cases, though we have acknowledged violation of the
statute, we found no deprivation of the defendant’s
constitutional rights.

Horne v. Commonwealth, 230 Va. 512, 518?19, 339 S.E.2d
186, 191 (1986) (citations omitted). The record discloses no loss
of exculpatory evidence.

Assuming, without deciding, that the delay caused by
interrogating Weber was unnecessary, we hold that the delay was a
mere procedural statutory violation, not a denial of a
constitutional right. Therefore, the statements obtained during
the delay were properly admitted. See id. at 519,
339 S.E.2d at 191; Alatishe v. Commonwealth, 12 Va. App.
376, 379, 404 S.E.2d 81, 83 (1991).

II. SUFFICIENCY OF EVIDENCE

Weber contends that the evidence was insufficient to support
his conviction for second?degree murder. He argues that the
Commonwealth failed to prove that his conduct caused the baby’s
death.

On November 17, 1994, at 5:15 p.m. Robin Weber arrived home
and handed the baby to Weber. In his final statement to the
police, Weber explained:

I was getting a little frustrated, and I got up to open
the windows. And I hollered at Robin about not opening the
windows. It was getting hot in there. She should know better
with her cooking that it was getting hot. She apologized.

I went back in the room, and he was still crying. I went
to sit down and he was still crying. I went to sit down. I
was getting really frustrated and I took him from my
shoulder, and I was like, "What is wrong?" And I
gave him two quick jerks. I didn’t realize it was so rough.

* * * * * * *

Well, I asked him "what’s wrong?" and I put him
on my shoulder and rocked him. His arm was up around my neck,
and it started to drift down to my chest. I took him off my
chest, because he was starting to feel really limp, and I
looked at him, and he was really ?? and he was real
dreamy?eyed. And I said, "Robin, come in here, there’s
something wrong," and I shook him, like I said before,
like a washing machine just side?to?side, trying to get a
response from him, and he cried a little bit. She came in,
and I said "There’s something wrong." And I put him
up on my hand and lifted him up over so he could rest on my
hand horizontally ?? he was just limp over my
hand. I brought him back down, and I tried to get a response,
and I slapped him on his face on both sides trying to get
something out of him. He cried a little
bit . . . .

* * * * * * *

Q: And he went limp after you shook him?

WEBER: Yes.

Q: How many times do you think you shook him?

WEBER: Twice.

Q: Could you describe for me how you shook him?

WEBER: It was quick jerks.

Q: Where were your hands?

WEBER: Underneath his chest like this. His armpits were in
the crux of my thumb and my finger, my thumb and my index
finger.

Q: And you jerked him back and forth?

WEBER: Yes.

Q: And right after that is when you put him on your chest?

WEBER: Yes.

Q: And that’s when you noticed that he started going limp?

WEBER: Yes.

Q: When did you strike his ears or the side of his head?

WEBER: His face. I thought I was just smacking his
face. . . .

Q: Which hand did you strike him with?

WEBER: My right.

Q: And with both sides of your hands, or ??

WEBER: Yes.

Q: How many times would you say you struck him?

WEBER: I’d say once on each side, about, yea. No, it was
twice, first cross hand then back hand, and then cross hand
and back hand.

Q: But he was fine up until the point where you shook him; is
that correct?

WEBER: Yes.

Dr. Zaritsky testified that the infant suffered from retinal
hemorrhaging, subdural hemorrhaging and significant trauma to the
brain, resulting in swelling. In addition, there was bruising on
the infant’s cheeks, ears, ribs, and the left side of the chin.
Dr. Zaritsky stated that these symptoms were consistent with a
diagnosis of Shaken Baby Syndrome. He testified that two factors
produced the baby’s death: (1) shaking that produced severe
swelling of the brain; and (2) the lapse of time before
treatment. Dr. Leah Bush, Assistant Chief Medical Examiner,
concurred in this diagnosis.

Dr. Zaritsky testified that the event that caused the swelling
of the brain occurred six to twelve hours before the baby was
brought to the hospital, or between 7:00 a.m. and 1:00 p.m. He
concluded from his review of the baby’s blood density that the
injuries occurred within the previous week. He testified that the
swelling of the brain was consistent with Weber’s statement that
the baby became limp.

"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it 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." Maynard v. Commonwealth, 11
Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc)
(citations omitted). When the sufficiency of the evidence is
challenged on appeal, "it is our duty to look to that
evidence which tends to support the verdict and to permit the
verdict to stand unless plainly wrong." Snyder v.
Commonwealth
, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961).

Weber argues that, although the evidence proved that he shook
and slapped the baby, it failed to prove that these acts
inflicted the baby’s fatal injuries. He notes that Dr. Zaritsky
testified that the injuries that caused the baby’s brain to swell
were suffered six to twelve hours prior to examination of the
baby in the hospital. Weber argues that this testimony
established a time frame proving that the baby’s fatal injuries
were suffered several hours before the events described in his
confession. We find this argument unpersuasive. The jury, as
finder of fact, was not required to accept every detail of each
witness’ testimony. Rather, it was the duty of the jury, upon
determining credibility and weight, to view the evidence as a
body and thus to determine the facts proven by that body of
evidence.

The baby, though fretful, was in good condition until Weber
shook and slapped him. Following that assault, the baby went limp
and lapsed quickly into the condition from which he never
recovered. That condition was consistent with trauma resulting
from an assault such as Weber admitted inflicting on the baby.
The jury was not obliged to accept Weber’s account of when the
shaking and slapping took place; nor was it obliged to accept
that the brain swelling fit precisely within the time frame
described by Dr. Zaritsky.

Weber further argues that even should the evidence be deemed
sufficient to prove that he inflicted the baby’s fatal injuries,
it failed to prove that he did so maliciously. We disagree.
"A trier of fact may infer that a person intends the natural
consequences of his or her acts." Hernandez v.
Commonwealth
, 12 Va. App. 669, 672, 406 S.E.2d 398, 400
(1991). "In determining the probable consequences of an
aggressor’s actions and his or her intent to achieve those
consequences, the comparative weakness of the victim and the
strength of the aggressor may be considered." Campbell v.
Commonwealth
, 12 Va. App. 476, 485, 405 S.E.2d 1, 5 (1991) (en
banc). Weber admitted that he was "frustrated."
He, a grown man, held the victim, a twenty?nine?day?old baby,
upright in his hands and shook the baby side to side with
"quick jerks." He then smacked the baby’s face, twice
forehand, and twice backhand. The brutality of this assault
supports the jury’s finding of malice.

III. DENIAL OF MISTRIAL

During rebuttal argument at the sentencing phase of the trial,
the Commonwealth’s attorney stated to the jury:

[Defense counsel] told you yesterday this was a tragedy
for everyone involved. Ladies and gentlemen, child abuse is a
tragedy for every human being, and Andrew Joseph represents
that. Child abuse is a tragedy.

The trial court sustained Weber’s objection to this argument
but denied his motion for a mistrial.

Weber contends that the quoted argument sought to inflame the
jury and to incite it to punish him for crimes committed by
others. We read no such purpose or effect into the quoted
argument. The argument responded to defense counsel’s earlier
observation that the death of the baby was a tragedy for all
involved. The argument acknowledged the truth of that observation
and went on to observe the undeniable fact that child abuse is a
tragedy for all society. This argument in no way sought to thrust
upon Weber responsibility for anything other than the crime for
which he had been convicted. It neither sought nor served to
inflame the jury or to incite it to take an improper view of the
case. We find no error in the trial court’s denial of Weber’s
motion for a mistrial.

The judgment of the trial court is affirmed.

Affirmed.

 

 

 

 

FOOTNOTES:

[1]
Dr. Zaritsky described Shaken Baby Syndrome as "a type of
injury that’s caused by a very vigorous shaking of a small infant
and typically an infant less than a year of age. That occurs
presumably because the neck muscles are not as strong, and so the
head tends to move back and forth fairly rapidly. And the brain
substance is much like jello inside the skull, so the movements
in each direction tend to deform or cause the brain to kind of
move in a way that’s not as fast as the head itself is moving, so
it basically is thought to really be bumping on the front side
and back side of the skull. And in addition there’s tearing of
the substance of the brain because of it’s [sic] sort of jello or
gelatinous nature. And there’s literally on a microscopic level
tearing of the connections between nerves that are called axons
that one can see."

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