Marvin Trevel Owens v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
MARVIN TREVEL OWENS MEMORANDUM OPINION*
v. 	Record No. 2259-95-1 	BY JUDGE JOSEPH E. BAKER
NOVEMBER 19, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
B. Thomas Reed (Cynthia D. Barnaby, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Marvin Trevel Owens (appellant) appeals from a judgment of
the Circuit Court of the City of Virginia Beach (trial court)
that approved his jury trial convictions of capital murder,
murder in the first degree, robbery, and use of a firearm in the
commission of those felonies. 	The sole issue before this Court
is: Should the trial court have sustained
appellant's motion to suppress his own
eight-hour videotaped statement because
appellant made no waiver of his rights?
Appellant was charged with robbery and murder of four of his
relatives, using a firearm in the commission of each charge.
As the parties are familiar with the extensive record
compiled in this case, we reference only those facts necessary to
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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an understanding of this opinion. 	Where the trial court has
denied a motion to suppress, we view the evidence most favorably
to the prevailing party below and the trial court's finding will
not be disturbed unless unsupported by the record. 	Novak v.
Commonwealth, 20 Va. App. 373, 385-87, 457 S.E.2d 402, 407-08
(1995). 	As indicated by the issue presented in this appeal, the
police made a videotape of most of the interrogation of
appellant. 	In addition, a transcript of the testimony given at
appellant's suppression hearing is provided by the record.
At the suppression hearing, Virginia Beach Detective Al
Byrum testified that he was assigned to interview witnesses who
may have been in or around the scene where the four victims were
murdered, persons having knowledge of the victims, and potential
suspects. 	Byrum learned that one of the victims, Clifton Harper,
also known as "Pops," was appellant's cousin, that Harper was a
cocaine dealer, that a person named Michael Ridley was Harper's
partner in the sale of narcotics, and that appellant was one of
Harper's customers.
Byrum had been informed that there was an outstanding capias
for appellant's arrest. 	In the course of his investigation,
Byrum, together with Virginia Beach Detective John Orr, went to
appellant's sister's house where appellant frequently could be
found. 	After the detectives had been at the house for
approximately forty-five minutes, appellant arrived and was
identified by his sister. 	The officers told appellant that they

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were investigating the four deaths, that they understood
appellant had talked with one of the victims on the morning of
the murders, that they wanted appellant to look at some pictures,
and that they wanted appellant to clarify some things.
They explained that appellant did not have to, but they
would like for him to go with them to the police station. 	At the
time, appellant was not told that he was a suspect. 	Appellant
voluntarily went with the officers. 	At the police station,
appellant was seated in an interview room. 	Byrum read appellant
his Miranda rights, after which he advised appellant that he was
being questioned about Harper's death, not the capias.
The videotape was played in its entirety at the suppression
hearing and at trial. 	Over six-and-one-half hours, three
detectives and a police sergeant interrogated appellant alone and
in various combinations. 	Appellant provided numerous accounts of
his whereabouts during the murders. 	The officers provided
appellant with information about witnesses and scientific test
results, some of which were falsified. 	When given this
information, appellant altered his account so as to be consistent
with what he had been told by the officers. 	Eventually,
appellant admitted that he was at the house and that he
accidentally shot Harper. 	Appellant initially claimed that
Ridley was present and that Ridley had picked up the gun and shot
the other three victims while appellant was calling 911 for help.
Later appellant stated that the killer of the other three

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victims was a man named "Dee" who had been dropped off at the
house that morning with appellant looking to buy drugs from
Harper.
Appellant then went from the station with the detectives for
the purpose of showing the detectives where they likely could
find "Dee." 	The trip was unsuccessful.
Upon returning to the station, appellant was questioned by
Virginia Beach Detective S. W. Hoffman while the video recorder
was off. 	According to Hoffman, appellant admitted that his story
regarding "Dee" was not true. 	The recorder was reactivated and
Hoffman left the room. 	When the subject came up for the first
time on tape appellant denied having made the statement.
Appellant continuously denied any involvement in the killing
of the other three victims.
Upon examination of the evidence in this record, we find it
is sufficient to support the trial court's finding that appellant
had been informed of his rights and waived them.
A waiver of the right to counsel, . . ., need
not be explicit; it can be shown by the
circumstances. 	In the present case, the
court inferred such a waiver from Eaton's
willingness to engage in a discussion of the
case with the officers after receiving
Miranda warnings and indicating that he
understood them.
Eaton v. Commonwealth, 240 Va. 236, 251, 379 S.E.2d 385, 394
(1990) (citation omitted); see also Harrison v. Commonwealth, 244
Va. 576, 423 S.E.2d 160 (1992). 	On similar facts that statement
is applicable to the case before us.

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At the time of the offenses and at trial, appellant was a
juvenile. 	Arguments made by appellant here and many facts
contained in the record are nearly the same as appear in Novak,
20 Va. App. at 385-88, 457 S.E.2d at 407-09. 	For the reasons
stated in the Novak opinion, we affirm the judgment of the trial
court.
Affirmed.