Charles Herman Shelton, Jr. v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
CHARLES HERMAN SHELTON, JR.
OPINION BY
v. 	Record No. 2107-99-4 	JUDGE JAMES W. BENTON, JR.
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Wiley R. Wright, Jr., Judge Designate
J. Amy Dillard, Deputy Public Defender, for
appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Charles Herman Shelton, Jr., of one
count of carjacking. 	Shelton contends the trial judge erred by
admitting into evidence a statement he made to police officers
without the benefit of warnings required by Miranda v. Arizona,
384 U.S. 436 (1966). 	We affirm the conviction.
I.
A grand jury indicted Shelton for robbery, see Code
§ 18.2-58; Chappelle v. Commonwealth, 28 Va. App. 272, 274-75, 504
S.E.2d 378, 379 (1998), and carjacking, see Code § 18.2-58.1, of a
taxi driver in Alexandria. 	At a hearing on Shelton's pretrial
motion to suppress, the evidence proved that at 3:30 a.m. police
officers in the District of Columbia joined in the search for a

carjacking suspect, whom several City of Alexandria police
officers had pursued into the District near a high school and a
vocational school. 	An officer entered an alley with a police dog,
announced that she would release her dog unless the person exited
the alley, and released the dog when she neither heard nor saw
anyone. 	The dog went from the alley to an adjacent yard, went
under a car, and pulled Shelton from under the car while holding
Shelton's arm in his mouth. 	Although the officers had been
informed that the suspect was armed, they found no gun on Shelton.
They searched for the gun using another dog.
Another officer put handcuffs on Shelton, walked him to the
street, and questioned him about his identity in the presence of
the Alexandria police officers. 	The Alexandria officers
identified Shelton as the man they pursued into the District.
After Shelton indicated he was "going to pass out," the officer
allowed him to sit and continued to talk to him. 	The officer
testified that Shelton had small lacerations on his head but was
"very coherent." 	When the officer asked Shelton "where the gun
was," Shelton responded, "I didn't have a gun when I took the
cab," and then said "[h]e wanted to talk to a lawyer." 	The
officer testified that he inquired about the gun because he "was
concerned about it because it's a residential neighborhood and
there's a school a block away and we needed to start to track and
find the weapon so somebody else wouldn't find it and hurt
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themselves." 	He said he "wanted to make sure that a child
wouldn't find the weapon."
Citing New York v. Quarles, 467 U.S. 649 (1984), which
recognized a narrow "'public safety' exception to the requirement
that Miranda warnings be given before a suspect's answers may be
admitted into evidence," id. at 655, the trial judge denied
Shelton's motion to suppress the statement. 	As a part of his
ruling, the trial judge also found that Shelton's statement was
voluntary, that the police had not overborne his will, and that
Shelton was aware of his Miranda rights because of prior
encounters with the police.
On the day of trial, Shelton pled guilty to the charge of
robbery. 	In so doing, he signed a written plea agreement waiving
the right to object to the admissibility of any evidence against
him on that charge. 	After the prosecutor proffered the facts
supporting the robbery charge, including Shelton's identity as the
robber, Shelton agreed to those facts. 	Before his trial on the
carjacking charge, Shelton's counsel stated, "I would like before
the trial starts [to] note my objection to [the trial judge's]
decision [on the motion to suppress] and also point out that by
that statement coming in [Shelton] essentially has no identity
defense any longer and, as a result, has entered a plea which
essentially stipulated to his identity and he won't challenge his
identity at all. 	The reason that he's doing that is because of
the ruling that [the] Judge . . . handed down last Thursday."
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At the bench trial on the carjacking charge, a taxi driver
testified that at 3:00 a.m. on February 19, 1999, a man entered
his taxi in Alexandria. 	The man put his arm around the driver's
neck, said he had a gun, demanded the driver's money, and
threatened to shoot the driver if he balked. 	As instructed by the
robber, the driver put his money on top of the seat. 	The robber
then ordered the driver out of the taxi and drove away. 	The
driver testified that the robber wore a dark jacket with light
stripes. 	The driver also testified that he did "not [get a] good
look" at the robber and could not say Shelton was the robber. 	He
further testified that he did not see a gun. 	Immediately after
the driver exited the taxi, he called the police using his
cellular telephone.
A police officer testified that about 3:17 a.m. he received a
report of the incident, which described the taxi and indicated the
robber was armed. 	Within seconds, he saw the taxi on the
interstate highway heading north toward the District. 	The officer
testified that only one man was in the taxi and that the man wore
a dark jacket with tan or white stripes. 	When the officer
activated his emergency lights and siren, the taxi accelerated and
continued to the District.
In the District, while being pursued by both District and
Alexandria police, the man stopped the taxi. 	The Alexandria
officer exited his car as the man exited the taxi. 	They stared at
each other "for a second" before the man ran. 	The officer
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identified Shelton as the man who exited the taxi and testified
that he chased Shelton until he disappeared. 	Fifteen minutes
later, a District police officer appeared with Shelton in
handcuffs. 	The officer testified that later, when the District
officer asked Shelton where the gun was, Shelton responded, "I
didn't have a gun when I took the cab."
The District officer, who handcuffed Shelton after the dog
pulled him from under the car, testified that when he was walking
Shelton from the yard to the street, Shelton was trembling and
"said that he was about to pass out." 	The officer put Shelton on
the ground to sit. 	As he began to question Shelton about his
identity, he heard another officer yell, "Where is the gun?" 	The
District officer who had custody of Shelton then asked Shelton
"where the gun was." 	The officer testified that Shelton was
apprehended in a residential neighborhood in the vicinity of a
school.
Shelton testified in his defense and admitted he robbed the
driver. 	He testified, however, that he "didn't have any kind of
weapon whatsoever. 	No knives, no guns nothing." 	He testified
that he forcefully demanded the driver's money but without making
any threats, that the driver dropped the money on the floor of the
taxi and ran, and that he then drove away in the driver's taxi.
The trial judge convicted Shelton of carjacking. 	He
sentenced Shelton to fifteen years in prison and suspended ten
years of that sentence. 	On Shelton's guilty plea to robbery, the
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trial judge sentenced him to five years in prison, suspending two
years and ordering the sentence to be served consecutive to the
carjacking sentence.
II.
Shelton contends that his statement, "I didn't have a gun
when I took the cab," was obtained in violation of Miranda and
that, consequently, it was improperly used at trial to prove his
identity. 	The Commonwealth counters that, by pleading guilty to
the robbery indictment, Shelton waived any objection he might have
had to the admissibility of the statement, that Shelton's
statement was admissible pursuant to Quarles, and that if error
was committed it was harmless.
Shelton's notice of appeal specifies an appeal from both
the robbery and carjacking convictions. 	Shelton's counsel
agreed at oral argument, however, that this appeal concerns only
the conviction for carjacking pursuant to Code § 18.2-58.1.
Indeed, we note that the record does not reflect that Shelton's
guilty plea to the robbery indictment was a conditional plea.
See Code § 19.2-254 (providing in part that "[w]ith the approval
of the court and the consent of the Commonwealth, a defendant
may enter a conditional plea of guilty in a felony case,
reserving the right, on appeal from the judgment, to a review of
the adverse determination of any specified pretrial motion").
Thus, this is not the case where, "[p]ursuant to Code
§ 19.2-254, [Shelton] reserved [his] right to appeal that
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portion of the . . . judgment denying [his] motion to suppress."
Polston v. Commonwealth, 255 Va. 500, 501, 498 S.E.2d 924, 924
(1998). 	The plea agreement preserves no objections to the
admission of the statement, and the guilty plea to the robbery
indictment was not conditioned upon an unsuccessful appeal of
the motion to suppress.
"Where a conviction is rendered upon . . . a [guilty] plea
and the punishment fixed by law is in fact imposed in a
proceeding free of jurisdictional defect, there is nothing to
appeal." 	Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569,
571 (1969). 	See also McMann v. Richardson, 397 U.S. 759, 768-71
(1970) (holding that a competently counseled accused who alleges
that he unconditionally pleaded guilty because of a prior
coerced confession fails to raise a valid claim that his guilty
plea was not voluntary or intelligently made). 	Therefore, the
robbery conviction is not properly before us. 	Moreover, this
appeal raises no issue concerning the robbery guilty plea
because it was not placed in issue at the carjacking trial.
III.
The following principles guide our analysis of this case:
When police ask questions of a suspect in
custody without administering the required
warnings, Miranda dictates that the answers
received be presumed compelled and that they
be excluded from evidence at trial in the
State's case in chief. 	The [Supreme] Court
has carefully adhered to this principle,
permitting a narrow exception only where
pressing public safety concerns demanded.
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Oregon v. Elstad, 470 U.S. 298, 317 (1985) (citing Quarles, 467
U.S. at 655-56. 	For purposes of Miranda, "the ultimate inquiry
is simply whether there is a 'formal arrest or restraint on
freedom of movement' of the degree associated with a formal
arrest." 	California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam) (citation omitted).
The evidence establishes that Shelton was in custody after
he fled from the police and was detained in the District of
Columbia. 	He was initially detained by the police at gunpoint
and placed in handcuffs. 	Several police officers surrounded him
after they had chased him because he was a suspect in a criminal
offense. 	These facts are sufficient to bring this case within
the general scope of Miranda.
In Quarles, a woman reported to a police officer that a man
with a gun had raped her and entered a grocery store. 	In the
store, the officer saw a man matching the description of the
suspect and handcuffed him. 	After a frisk search revealed no
gun, the officer asked him where the gun was located. 	The man
nodded toward some empty cartons and responded, "the gun is over
there." 	467 U.S. at 652. 	The Supreme Court held that "there is
a 'public safety' exception to the requirement that Miranda
warnings be given before a suspect's answers may be admitted
into evidence, and . . . the availability of that exception does
not depend upon the motivation of the individual officers
involved." 	Id. at 655-66. 	This exception is established when
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the evidence proves "an objectively reasonable need to protect
the police or the public from any immediate danger associated
with [a] weapon." 	Id. at 659 n.8. 	Applying that exception, the
Court ruled that neither the gun nor the statement needed to be
suppressed. 	Id. at 659.
In denying Shelton's motion to suppress, the trial judge
found that the facts were sufficient to prove the Quarles
exception. 	The trial judge's finding "that a threat to public
safety temporarily suspends the obligation to give Miranda
warnings . . . is a mixed question of fact and law that
implicates constitutional rights . . . [and] is subject to de
novo review." 	United States v. Brady, 819 F.2d 884, 886 (9th
Cir. 1987). 	Moreover, in our review of the trial judge's ruling
on the motion to suppress "we must examine the records of both
the suppression hearing and the trial to determine whether the
evidence was [properly admitted]." 	Brown v. Commonwealth, 33
Va. App. 296, 306, 533 S.E.2d 4, 8 (2000).
The evidence proved that when the officer asked Shelton
where the gun was located, the officer had been told the suspect
was armed. 	The officer also knew Shelton had fled in the taxi
and later hid under a car in a residential neighborhood in the
vicinity of two schools. 	The officer frisked Shelton and found
no gun. 	When the officer who was obtaining identifying
information from Shelton asked about the gun, other officers
were using a police dog, trained in detection of weapons, to
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search for it. 	These circumstances do not suggest that the
officer asked the question to elicit testimonial evidence.
Rather, these circumstances establish "an objectively reasonable
need to protect . . . the public from any immediate danger."
Quarles, 467 U.S. at 659 n.8.
The potential presence of a discarded gun in a residential
neighborhood near a school is an immediate threat to public
safety. 	The circumstances posed the risk that a resident of the
neighborhood or a school child "might later come upon [the
gun]." 	Id. at 657. 	As in Quarles, "[t]he police in this case,
in the very act of apprehending a suspect, were confronted with
the immediate necessity of ascertaining the whereabouts of a gun
which they had every reason to believe the suspect had just
. . . discarded." 	Id. at 657. 	The evidence, thus, proved that
this was "a situation in which police officers ask[ed] questions
reasonably prompted by a concern for the public safety." 	Id. at
656. 	Accordingly, we hold that the facts established the narrow
exception to the Miranda requirements.
Shelton also contends the evidence proved actual coercion
from police misconduct. 	In Quarles, the Court implied that a
statement otherwise coming within the "public safety" exception
will be excluded if it is actually coerced. 	See 467 U.S. at 658
n.7 (stating that "absent actual coercion by the officer, there
is no constitutional imperative requiring the exclusion of the
evidence"). 	Citing United States v. Rullo, 748 F.Supp. 36 (D.
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Mass. 1990), Shelton argues that his statements were involuntary
and the product of physical abuse by the police.
In Rullo, the evidence proved that the police were pursuing
Rullo from the site of a drug transaction when they suspected he
shot at them. 	748 F. Supp. at 38. 	When ten officers
apprehended Rullo, he submitted to the detention. 	Nonetheless,
the officers "punched and kicked . . . [and] cursed at him."
Id. at 39. 	During the beatings, the officers said, "Give us the
gun and we'll let you up." 	Id. 	Suppressing Rullo's statement
identifying the location of the gun, the trial judge found that
Rullo's will was overborne by the coercive police misconduct.
Id. at 41-42.
In this case, however, no evidence proved police misconduct
in apprehending or questioning Shelton. 	It did prove that after
Shelton abandoned the taxi at 3:30 a.m. and fled, he secreted
himself in the yard of a residence. 	An officer shouted for
Shelton to come from his hiding place and received no response.
The officer then released her police dog, which located Shelton
under a car. 	When Shelton refused to leave, the dog bit him in
the process of detaining him and dragged him by his arm from
under the car. 	These circumstances do not establish unwarranted
force or misconduct by the police. 	Shelton was injured when the
dog located him after he refused to reveal himself in the
darkness. 	The capture by the dog was a reasonable response to
Shelton's refusal to reveal himself in the darkness.
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Once the dog pulled Shelton from under the car, the police
exerted no unlawful coercion upon him. 	Shelton was removed from
the yard to the nearby street and seated on the ground. 	The
evidence proved no overbearing conduct or coercion during the
questioning.
For these reasons, we affirm the conviction.
Affirmed.
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