Eugene Lamont Owens v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Bray
Argued at Norfolk, Virginia
EUGENE LAMONT OWENS MEMORANDUM OPINION* BY
v. 	Record No. 0647-93-1 	JUDGE JAMES W. BENTON, JR.
JUNE 27, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Robert D. Eisen for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Donald R. Curry, Senior Assistant Attorney
General, on brief), for appellee.
Eugene Lamont Owens was convicted of second degree murder,
robbery, and two offenses of use of a firearm in commission of a
felony. 	Owens contends that the trial judge erred in failing to
suppress statements he made after his arrest. 	We affirm the
convictions.
I.
Prior to trial, Owens' counsel filed a motion to suppress
"statements . . . taken in violation of [Owens'] Fifth Amendment
rights." 	At the evidentiary hearing, Detective Shaun Squyres
testified concerning the circumstances surrounding his interviews
with Owens following Owens' arrest for the killing of Andrew
Green. 	Squyres testified that he was told that Rodolfo Cejas, an
attorney, was in the police station on February 19, shortly after
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Owens had been brought into the station. 	Squyres said that he
was not informed that the attorney requested to see Owens. 	The
record contained no testimony by Cejas that he had been retained
by Owens or requested to see Owens.
Squyres advised Owens of his Miranda rights at 9:52 a.m.
Owens stated that he understood those rights and responded to
Squyres' questions. 	Owens initially denied being present when
Green was killed. 	As Squyres questioned him further, Owens
stated that he was in the vicinity of the event, heard the shots,
but did not rob or kill Green. 	Owens said that he had purchased
wine and heroin the night of the shooting.
Squyres acknowledged that if Owens had used drugs and
consumed alcohol the night before the interview, he could have
been intoxicated during the interview. 	Squyres testified,
however, that nothing about Owens' behavior indicated that he was
intoxicated. 	Moreover, Squyres said he had known Owens for a
long time and Owens "wasn't acting any different than any other
time that I had ever seen [him] on any occasion."
At 1:14 p.m. following the initial interview, Squyres again
spoke to Owens. 	Squyres testified that he stopped the
conversation when Owens said "I want to talk to my lawyer."
Owens was then taken to a holding cell in the police station.
Squyres testified that Owens began pounding on the door later
that day and asked to speak with Squyres. 	When Squyres again met
with Owens at 3:50 p.m., Owens told Squyres that he wanted to

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tell the truth. 	Owens then told Squyres that he took several men
to Green's house to rob Green. 	Owens described an exchange of
gunfire in which Green and another man shot and killed
themselves. 	Owens denied having a gun or shooting during the
robbery.
Squyres testified that the day after those interviews Owens'
friend, Kim Baldwin, made a telephone call to him. 	Baldwin
initiated a conference call in which they spoke with Owens from
the jail. 	After Squyres gave Owens Miranda warnings, Owens told
Squyres where the guns were hidden. 	Owens again denied that he
was armed during the robbery.
Squyres testified that on February 21, Owens called again
from jail and said he wanted to talk to Squyres. 	Squyres had
Owens transported to the police station. 	After Squyres gave
Owens Miranda warnings, Owens provided more detail regarding the
robbery of Green and admitted his involvement in the robbery.
However, he continued to deny that he was armed. 	When Owens
refused to repeat the statements on audio tape, Squyres ended the
interview. 	On February 22, Owens called Squyres from the jail
and said he would allow the statement to be recorded. 	Squyres
testified that he refused to meet Owens and told Owens to contact
him through Owens' attorney.
Squyres testified that seven months later, following a
proceeding involving Owens' co-defendants, Baldwin called to tell
Squyres that Owens wanted to talk to him. 	On September 22,

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Squyres arranged an interview with Owens at the police station
and again advised Owens of his Miranda rights. 	Squyres said that
Owens was angry because a witness had recanted statements
concerning the crimes and the prosecutor had decided not to
prosecute two co-defendants who had been charged. 	Owens wanted
to give a statement because "he didn't want to take the weight
. . . by himself." 	Owens gave a statement that was consistent
with his last prior statement except that he admitted being armed
at the time of the robbery. 	The statement was detailed and
included a description of the participation of the two co-
defendants who had been released from jail. 	This statement was
recorded.
Squyres testified that Owens told him that Baldwin could
confirm many of his statements. 	Squyres told Owens that it was
important that Baldwin talk to him since "she was the source of
this conversation about these deals being made to change stories
on cases." 	Owens told Squyres that Baldwin would speak to
Squyres if Owens told her to.
Squyres testified that two days later he brought Baldwin to
the police station. 	Squyres spoke to Baldwin alone and taped her
statements. 	Squyres testified that while he was recording
Baldwin's statement, Owens was in another room reading his typed
statement.
Squyres testified that after he obtained Owens' and
Baldwin's signatures on their respective statements, he brought

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Owens and Baldwin together in the same room to speak with them
about their statements. 	Squyres said that after talking to them
he left the room, locked the door, and went to check his records
to verify their story. 	Squyres testified that after three
minutes, he returned and "checked on them." 	He again left the
room, "search[ed] information, answered a couple [of] phone
calls, and, eight or ten minutes later, . . . stepped back in the
room and . . . told them to say good-by." 	Squyres testified that
he had not made any promises to Owens and had not threatened him.
Owens and Baldwin testified at the hearing and contradicted
Squyres' testimony in several respects. 	Owens testified that
when Squyres read Miranda rights to him on the morning of his
arrest, he told Squyres that he was intoxicated and wanted to
talk to his lawyer. 	Owens testified that prior to his arrest he
had been drinking and had used heroin. 	Owens also testified that
he could not remember what he told Squyres that day because of
his intoxication.
Owens also testified that in September Baldwin told him that
Squyres wanted to talk to him. 	When he contacted Squyres,
Squyres was angry about the release of two co-defendants.
Squyres asked Owens if he wanted to see Baldwin. 	Owens testified
that when he answered affirmatively, Squyres told him what he
expected him to say. 	Owens said that Squyres recorded his
statement and erased the tape whenever he said something
incorrectly. 	He said that after he completed his statement,

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Squyres told him that "I am going to get [Baldwin] down here and
see what she knows about the case and I'm going to let you be
with her . . . I know you've been incarcerated a long time. 	I
know you'd like to be with your wife." 	Owens said he understood
that statement to mean that Squyres would allow him to have
sexual intercourse with Baldwin.
He testified that Squyres gave him the typed statement to
read the next day when Baldwin was in the police station. 	He
testified that he signed the statement only after he had sexual
intercourse with Baldwin. 	Owens testified that the statement was
false and that he only gave the statement because of the promise
of sexual intercourse.
Baldwin testified that she called Squyres several times when
Owens was in jail, and she participated in conference calls with
Owens and Squyres. 	She did so because Owens wanted to talk to
Squyres. 	Baldwin testified that Squyres called her in September
to say he wanted "to get everything straight about this case" and
asked her if she wanted to see Owens. 	Squyres picked her up at 9
p.m., took her to the police station, and entered through the
back door. 	When she entered the interrogation room, she saw
Owens reading something that appeared to be a typed statement.
Squyres took her into another room, where they talked. 	She
testified that she did not know why the witness changed his
story, and that she told Squyres what she had heard. 	She
testified that Squyres then took her to Owens, said to her,

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"Don't do nothing nasty," and left the room. 	She and Owens then
had sexual intercourse in the room. 	A half hour later, Squyres
returned to the room, asked no further questions, and took her
home.

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II.
Owens contends that any statements he made to the police
were involuntary and taken in violation of his Fifth Amendment
rights. 	The Commonwealth argues that Owens' counsel waived any
claim regarding the admissibility of his statements to the
police. 	We disagree that the issue was not preserved for appeal.
At trial when the prosecutor offered in evidence the statements
the judge had refused to suppress, Owens' counsel stated, "We
will stipulate [Owens] was properly Mirandized. 	We have no
problem with the statements." 	We conclude that Owens' counsel
conceded only that the police properly warned Owens of his
Miranda rights. 	The trial judge had already ruled at the
suppression hearing that Owens had failed to prove that his
statements were involuntary because he was intoxicated and
induced by sex. 	Counsel's statement at trial merely conceded the
propriety of the Miranda warnings. 	Counsel did not waive the
involuntary issue that was raised at the suppression hearing.
Even where a suspect has been advised of rights as required
by Miranda v. Arizona, 384 U.S. 436, 475-76 (1966), and has made
a statement, see Mincey v. Arizona, 437 U.S. 385, 396-97 (1978),
that statement is inadmissible if it was made involuntarily. 	Id.
at 402. 	See also Miller v. Fenton, 474 	U.S. 104, 110 (1985).
Whether a statement is voluntary is a legal determination rather
than a factual question. 	See id. 	The test to determine
voluntariness is whether the statement is "the product of an

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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." 	Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973). 	To determine whether an
accused's will has been overborne, this Court must look to "the
totality of all the surrounding circumstances." 	Id. at 226.
No evidence in the record supports Owens' claim that the
statements he made when he was first questioned were involuntary.
Owens testified that he was intoxicated. 	However, Squyres
testified that Owens did not show any signs of intoxication.
Statements made during a custodial
interrogation and while intoxicated are not
per se involuntary or inadmissible. 	The test
is whether, by reason of the intoxication,
the defendant's "will was overborne" or
whether the statements were the "product of a
rational intellect and a free will."
Yarborough v. Commonwealth, 217 Va. 971, 974, 234 S.E.2d 286, 289
(1977) (citations omitted). 	Nothing in the record supports a
claim by Owens that he was intoxicated to the degree that his
will was overborne or that he was not capable of making a free
and rational decision when he waived his right to remain silent
and spoke to the police officer. 	Owens' mere statement that he
was intoxicated was not sufficient to prove that his waiver was
involuntary. 	Id.
III.
Owens further argues that his Fifth Amendment rights against
self-incrimination were violated because Squyres induced Owens to

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confess with a promise of sexual contact with his friend, Kim
Baldwin. 	Squyres testified that Owens gave a recorded statement
prior to any mention of a meeting with Baldwin. 	Owens testified
that before he gave a statement Squyres asked him if he wanted to
"see [Baldwin]." 	According to Owens' testimony, however, it was
only after the statement was recorded did Squyres promise Owens
that he could "be with [Baldwin]." 	Owens said he took that to
mean "to have sex with her" and "thought [Squyres] was just
playing or something." 	The trial judge resolved the conflicts in
the testimony and found Squyres to be more believable. 	See Gray
v. Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174, cert.
denied, 484 U.S. 873 (1987). 	That credibility determination
finds support in the record. 	Thus, we cannot say that the record
supports a finding that Owens' statement was induced by a promise
of sexual favors.
The record does reflect that Squyres provided Owens the
opportunity to engage in sexual relations with Baldwin after the
statement was signed. 	Squyres testified that he knowingly left
Owens, who was in custody, alone and unobserved in a locked room
with Baldwin. 	By Squyres' own testimony, Owens and Baldwin were
alone for thirteen minutes.
The record establishes no reason for Baldwin and Owens to
have been left unattended in this manner. 	Although the record
supports the trial judge's finding that the sex was not an
inducement, Squyres' conduct in this matter raises a serious

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question of the propriety of his methods. 	Even if, as Squyres
testified, he was not aware that Owens and Baldwin had sexual
intercourse, he certainly was aware that he afforded Owens and
Baldwin the opportunity to engage in sexual intercourse or any
other activity available to them in the privacy of the locked
interrogation room.
Although the evidence proved Squyres acted with impropriety,
Owens has failed, however, to show that the favor Squyres
bestowed upon him after he had given a statement induced him to
make the statement. 	Accordingly, the proof fails to establish
that his statement was involuntary.
IV.
Owens contends that his Sixth Amendment right to counsel was
violated when he was denied his request to see his attorney on
the morning of February 19. 	Owens' motion to suppress, however,
raised only the issue of a Fifth Amendment violation. 	Owens'
counsel never asserted a Sixth Amendment claim in the court below
and is barred from raising this issue now for the first time on
appeal. 	Rule 5A:18.
For these reasons, we affirm Owens' convictions.
Affirmed.