Phillip B. Lester & Douglas R. Lester v CW

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Overton and Bumgardner
Argued at Salem, Virginia
PHILLIP BRADLEY LESTER AND
DOUGLAS RALE LESTER1
MEMORANDUM OPINION* BY
v. 	Record No. 0432-97-3 	JUDGE RICHARD S. BRAY
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
David L. Epling for appellant Phillip Bradley
Lester.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Phillip Lester (defendant) entered a conditional guilty plea
for receiving stolen property in violation of Code § 18.2-108,
thereby preserving his right to appeal the trial court's denial
of his motion to suppress inculpatory statements made to police.2
Finding no error, we affirm the conviction.
The parties are conversant with the record, and this
memorandum opinion recites only those facts necessary to
1Both appellants noted an appeal of the trial court's order
dated June 9, 1997 nunc pro tunc February 20, 1997. 	The Court
notes that the appeal noted on behalf of Douglas Rale Lester
appears to have not been pursued.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
2Our decision with respect to defendant's initial confession
to police is dispositive of this appeal, and we decline to
address defendant's assignment of error related to the later
statement.

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disposition of the appeal.
In accordance with well established principles, we view the
evidence in the light most favorable to the Commonwealth, the
prevailing party below. 	Moore v. Commonwealth, 25 Va. App. 277,
283, 487 S.E.2d 864, 867 (1997).
Incidental to an investigation of a "breaking and entering"
and related theft of a safe, Buchanan County Sheriff's Deputy
Ronnie Keene learned that two suspects were relying upon
defendant for an alibi. 	Defendant was then incarcerated in the
county jail for a traffic offense, and Keene arranged an
interview "to see if [the two] had been [at defendant's home]"
and whether defendant, though not a suspect, "knew anything
about" the crimes. 	To accommodate the meeting, defendant was
relocated from "the lower part of the jail" to another room
within the facility. 	During the 20-minute interview, defendant,
without being advised of his Miranda rights, admitted to Deputy
Keene and Investigator Randall Lester that the suspects came to
his residence with the stolen safe, forced it open and gave him
approximately $4,300 in cash from the contents, after which he
assisted in disposal of the safe.
In urging the court to suppress his confession, defendant
contended that the statement was coerced during a custodial
interrogation without the protection of the requisite Miranda
warning and, therefore, inadmissible into evidence. 	See Miranda
v. Arizona, 384 U.S. 436 (1966). 	The trial court denied the

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motion, resulting in this appeal.
"Failure to give Miranda warnings prior to custodial
interrogation requires suppression of any illegally obtained
statements." 	Blain v. Commonwealth, 7 Va. App. 10, 13, 371
S.E.2d 838, 840 (1988) (emphasis added) (citation omitted).
However, the custody contemplated by Miranda does not necessarily
coincide with confinement in jail or prison on an unrelated
matter. 	See Blain, 7 Va. App. at 13-14, 371 S.E.2d at 840;
United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985)
("prison inmate is not automatically in 'custody' within the
meaning of Miranda"); Cervantes v. Walker, 589 F.2d 424, 427 (9th
Cir. 1978) (rejecting a per se rule that any investigatory
questioning within a prison requires Miranda warnings). 	"The
test . . . is whether there has been 'a change in the
surroundings of the prisoner which results in an added imposition
on his freedom of movement,' . . . 'more than the usual restraint
on a prisoner's liberty to depart.'" 	Blain, 7 Va. App. at 14,
371 S.E.2d at 840-41 (quoting Cervantes, 589 F.2d at 428).
"[T]he issue whether a suspect is 'in custody,' and
therefore entitled to Miranda warnings, presents a mixed question
of law and fact qualifying for independent review." 	Thompson v.
Keohane, 516 U.S. 99, 102 (1995). 	However, "[w]e review the
trial court's findings of historical fact only for 'clear
error.'" 	Quinn v. Commonwealth, 25 Va. App. 702, 712-13, 492
S.E.2d 470, 475-76 (1997) (citations omitted). 	To prevail on

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appeal, defendant must "show that the trial court's decision
constituted reversible error." 	Id. at 712, 492 S.E.2d at 475
(citations omitted).
Here, guided by our deferential standard of review, we find
that defendant was removed from one area of the jail to a room
more appropriate for an interview by the two investigators,
unattended by increased restraint. 	The meeting was brief,
neither accusatory nor confrontational, and free of oppressive
police conduct. 	A jailhouse interview conducted under such
circumstances clearly did not enhance the custodial environment
sufficiently to implicate Miranda warnings.
Similarly, the record does not support defendant's complaint
of coercion. 	The trial court was entitled to disbelieve
defendant's version of the meeting, see generally Bryant v.
Commonwealth, 10 Va. App. 421, 427, 393 S.E.2d 216, 220 (1990),
and the record otherwise offers no support to his claim. 	Indeed,
although not dispositive, defendant acknowledged in his statement
that he spoke "freely and voluntarily."
Accordingly, we affirm the decision of the trial court and
affirm the conviction.
Affirmed.