COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys and O’Brien Argued at Lexington, Virginia PUBLISHED

NATALIE MARIE KEEPERS OPINION BY v. Record No. 0279-19-3 JUDGE MARY GRACE O’BRIEN APRIL 14, 2020 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Robert M.D. Turk, Judge David B. Hargett (Hargett Law, PLC, on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. A jury convicted Natalie Keepers (“appellant”) of accessory before the fact to murder, in violation of Code §§ 18.2-18 and -32. Before her trial, appellant pled guilty to unlawful concealment of a dead body, in violation of Code § 18.2-323.02. She does not challenge that conviction. Appellant asserts the following assignments of error: 1. The trial court erred in denying the motion to suppress the pre-warning and post-warning statements [appellant] made to law enforcement over the course of two days. ^[2]. The trial court erred in denying [appellant’s] motions to strike for cause Juror #24 and Juror #40. BACKGROUND Under well-established principles, we state the facts in the light most favorable to the prevailing party, the Commonwealth. Gerald v. Commonwealth, 295 Va. 469, 472 (2018). In January 2016, thirteen-year-old N.L.^[1] lived with her mother in an apartment in Blacksburg. When N.L.’s mother went to wake her daughter on the morning of January 27, 2016, she discovered the child was missing. A nightstand was pushed up against the bedroom door, the window was open, and N.L.’s backpack, jacket, cell phone, and “Minions” blanket were gone. N.L.’s mother immediately reported her daughter missing. Three days later, on January 30, 2016, a Virginia State Police special agent discovered N.L.’s unclothed, dead body on the side of a road two miles into North Carolina. Following an autopsy, the medical examiner determined that the child died from stab wounds to her neck, one of which severed her jugular vein. She also suffered blunt force injuries while still alive, including a broken neck. The medical examiner did not observe any defensive wounds. The police investigation focused on David Eisenhauer, a nineteen-year-old student at Virginia Tech. Forensic evidence established that Eisenhauer drove to N.L.’s house on January 27, 2016, at 12:16 a.m. where he remained for five minutes. GPS data showed that Eisenhauer’s vehicle then traveled to Craig Creek Road in Blacksburg and stayed for forty-four minutes before returning to campus. Eisenhauer and appellant, a freshman engineering student at Virginia Tech, had planned N.L.’s murder in detail, including exchanging text messages on their cell phones. Surveillance cameras from a nearby Walmart revealed that appellant and Eisenhauer purchased a shovel the day before N.L.’s disappearance. On the night of January 26, 2016, they appeared on security-camera footage at a local fast-food restaurant. The following day, appellant helped Eisenhauer move the victim’s body to North Carolina. Eisenhauer subsequently sent appellant a text message stating, “We definitely did overkill[,] but that’s good.” Appellant responded, “We are safe and just need to dispose of the one thing and we are done.”

On January 30, 2016, after N.L.’s body was discovered, police arrested Eisenhauer for her

murder. Eisenhauer identified appellant as an alibi witness, and Detective Ryan Hite of the Blacksburg Police Department and FBI Special Agent Michael Scimeca went to appellant’s dormitory room to interview her. Pursuant to university policy, a Virginia Tech police detective accompanied the investigators on campus. Appellant was not present, but her roommate suggested that she might be at her boyfriend’s off-campus apartment.

A. Police interviews with appellant

At approximately 9:30 a.m. on January 30, 2016, the three officers located appellant at the apartment. The officers were in plain clothes and armed; however, their weapons were not visible

under their overcoats. They told appellant that she was “not in trouble” but asked her to come to the police department to discuss “an ongoing investigation.” In response to appellant’s questions, the officers advised her that the investigation concerned the missing girl featured on the news.

Appellant agreed to accompany the officers, who drove her to the police department in an unmarked

SUV; they did not handcuff her or activate their lights or siren during the drive. The police maintained recordings of all their interactions with appellant.

Due to the investigation of N.L.’s disappearance, many law enforcement officers were at the police station. The lobby doors were secured, so the officers brought appellant in through a police-only door that required a key for entry. They spoke with her in a room designated

“interview” on the door, which was closed for privacy but not locked. Appellant brought her purse and backpack and was not searched or restrained in any manner. She was permitted to use a bathroom and was offered food and water several times.

After initially denying that she knew anything about N.L.’s disappearance, appellant later stated that Eisenhauer told her he met an underage girl at a party and might have had sex with her.

Appellant denied shopping at Walmart with Eisenhauer prior to N.L.’s disappearance, but when the officers presented her with surveillance video footage from the store, she acknowledged being there.

At approximately 12:15 p.m. that same day, appellant gave the police written consent to

search her phone. She also admitted texting Eisenhauer earlier that morning and telling him the police were at her door. Although appellant stated that she knew the child was dead, she repeatedly denied being present when Eisenhauer killed N.L. Appellant told the police that Eisenhauer forced her to help move N.L.’s body to the side of the road near the North Carolina border where N.L. was

found. She explained that she discarded some of the evidence related to the murder on January 28, 2016, and retained other items, including N.L.’s “Minions” blanket, in her dorm room.

According to Detective Hite, although he no longer considered appellant merely an alibi witness at that time, he did not yet consider her a suspect. He stated that even though she was not detained, she never asked to leave.

At 6:00 p.m., appellant willingly accompanied the police to Craig Creek Road, the location where police suspected the killing occurred. Upon their return to the police station, appellant helped

create a timeline of the week that N.L. was killed. Shortly after midnight, the police arrested her for unlawful concealment of a body and accessory to murder. Following her arrest, the police did not question her further, and she was held overnight in jail.

At approximately 12:30 p.m. on January 31, 2016, the police met with appellant at the jail.

Appellant was handcuffed and shackled with a waist chain. Using a pre-printed form, the detectives read her the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). Detective Hite also told her:

We just want to pick up where we left off and go over some stuff with you. ....

The only issue is clearly we aren’t here to arrest you, charge you, or anything like that[;] but, obviously, at least you’re in the custody of the jail just because you’re here . . . so, with that, there is a procedure we need to go over. I have to basically read you your rights.

....

It just says that you’re cool talking to us still, and that, you know, if you change your mind at any time, then you don’t have to, you know, that kind of stuff. But like I said, it’s more of a procedural issue because you’re in their custody. It really doesn’t change anything with us.

....

[A]gain, this is just procedural stuff. What we’ll do is just have you read this and then get you to check it over and get you to fill out and sign if you’re still okay with that. And, you know, it’s a little less glamorous [than] what you hear on TV, but it does kind of sound the same.

For approximately two minutes, appellant reviewed the one-page waiver and, after asking some questions about how to fill it out, signed the document.

The police took appellant to identify several locations related to the crime. While they were out, they learned that an attorney claiming to represent appellant had arrived at the jail. Appellant signed an addendum to her Miranda waiver agreeing to “continue [the] evidence search and meet with [the] attorney later.” When the police returned to the jail with appellant that evening, she did not ask for the attorney’s information or to meet with him.

Although she continued to deny being present when N.L. was murdered, appellant admitted that she helped Eisenhauer plan the murder. She told the police that Eisenhauer discussed “offing

[N.L.], maybe like a week before [they] came back from [winter] break.” She admitted that she helped Eisenhauer pick a location to murder N.L. and being involved in the plan made her feel

“special” and part of a secret club.

Before trial, appellant moved to suppress all her statements to the police and any physical evidence obtained as a result. The court held a two-day hearing on appellant’s motion during which both parties played video and audio clips from appellant’s interview, and Detective Hite testified.

He described appellant as “intelligent” and “articulate.” The court found that appellant voluntarily accompanied the police to the station where, initially, she was not in custody. The court characterized the detectives’ questioning as “conversational” and not “confrontational in any manner,” and it concluded that appellant was not coerced into making any statements.

However, the court found that appellant’s custodial status changed at the video timestamp of 15:212 on January 30, 2016, when she asked the detectives if she was in trouble and they responded that they were not sure what would happen to her but her “honesty and cooperation will go a long way.” It was at this time, the court found, that the detectives first “manifest[ed] to [appellant] that she may be charged with a crime.” The court determined that a reasonable person would not feel free to leave at that point. Accordingly, it suppressed any statements appellant made after timestamp 15:21 on January 30, 2016.

The court denied the motion to suppress the January 31, 2016 statements, finding that appellant was properly advised of her rights and “knowingly, voluntarily[,] and intelligently” waived them. The court noted that appellant was advised that an attorney had come to the jail to represent her when she was traveling with the officers and she chose not to talk to the lawyer at that time.

Appellant subsequently filed a motion for reconsideration and clarification. The court denied the majority of the motion but ordered suppression of the timeline because it was prepared on January 30, 2016, after appellant was in custody.

B. Jury selection

The parties spent the first day of trial selecting a jury. Initially, potential jurors were questioned in groups of twelve, with individual voir dire also permitted if counsel requested. The court struck several jurors for cause, at either the Commonwealth’s or appellant’s request.

However, the court denied appellant’s motion to strike two additional jurors for cause, Jurors 24 and 40.

Juror 24 was individually questioned about a Facebook page that she and her husband jointly maintained. A local news station posted a story on Facebook reporting that appellant had

been denied bond, and a user from Juror 24’s Facebook account “liked” the story and commented, “Great. Now give her the needle.”

Juror 24 denied posting the comment. She opined that her husband might have written it, and she stated that she did not agree with her husband on that topic or “a lot” of issues. When asked

if she would be able to find appellant not guilty if the Commonwealth did not prove the case, Juror 24 replied that she would “listen to all the evidence and hear all the facts before . . . making a judgment against anybody.” The court found that Juror 24 was “straightforward and she doesn’t necessarily agree with her husband on everything.” Further, it concluded Juror 24 was adamant that she would consider all the evidence before making a decision.

During individual voir dire, Juror 40 advised that she learned appellant had pled guilty to concealing a body. Juror 40 stated that she read on Facebook that N.L.’s mother felt that because appellant pled guilty to that charge, appellant was involved with the murder. Juror 40 agreed that concealing a dead body and murder were “two separate crimes” and that the Commonwealth was required to prove each individual offense. She stated that she “probably” had an opinion about appellant’s guilt. The attorneys then engaged Juror 40 in the following colloquy:

[Commonwealth Attorney (“CA”)]: Okay. Is that opinion so firmly entrenched, what I’m saying is, is that opinion so strong with you that no matter what the evidence is you hear here, that you’re just going to stick with that opinion?

Juror No. 40: No.

[CA]: Okay.

Juror No. 40: I don’t believe so.

[CA]: Do you believe that you can come in with, you can set that opinion aside, open your mind up, listen to the evidence, listen to what the [j]udge tells you the law is, and come to a fair decision, meaning a decision only made on the evidence and the law? Do you think you could do that, or not?

Juror No. 40: I think I could.

[CA]: Okay. All right. I think that’s the only thing the Commonwealth has to follow up with, [j]udge.

[Defense counsel (“DC”)]: [Juror 40], thank you again. Your knowledge about the case, you went into it with [the CA]. Why did you hesitate and say you might be impartial, or not be able to be impartial, excuse me?

Juror No. 40: Well, I guess because I don’t know what the evidence is going to be, you know. I mean I have heard an opinion already, but I don’t know what the evidence is going to be presented to cause me to, or I don’t even really know what the law is yet that would cause me to reconsider what I heard.

[DC]: So –

Juror No. 40: I want to be fair, so I guess that is one of the reasons I hesitate. I want to be fair but I –

[DC]: Do you think you can in this case?

Juror No. 40: I think I can. You know, I mean his questions I answered honestly.

[DC]: Oh I know, I’m not challenging.

Juror No. 40: If they present to me, I mean I think I can listen to the [j]udge’s instructions and listen to the evidence. I’ve not already made up my mind that, you know, the verdict is guilty, but I also cannot sit here and honestly say that what I heard is not going to bias me. Does that make any sense?

[DC]: Yeah. Thank you for your honesty.

Juror No. 40: I’m just trying to be honest.

[DC]: I appreciate that, I really do. Judge, that’s all the questions I have.

[CA]: I have no follow[-]ups, [j]udge.

The Court: Thank you, [Juror 40], if you will go back.

The judge did not question Juror 40. It declined to strike Juror 40 for cause and stated, “I think she was pretty honest. She said she could be fair and impartial. I will deny the motion.”

ANALYSIS

A. Motion to suppress interview statements

Appellant contends the court erred by admitting her interview statements made on both

January 30 (“day one”) and January 31, 2016 (“day two”). She argues that the court should have also suppressed the statements she made prior to the 15:21 timestamp on day one, because she was

in custody and not advised of her Miranda rights. She asserts that her day two statements “were the product of a two-step interrogation strategy designed to circumvent Miranda, a tactic specifically proscribed in Missouri v. Seibert, 542 U.S. 600 (2004).” Finally, she contends that her statements on both days were involuntary because she was coerced by the police.

1. Statements on day one

On appeal, appellant bears the burden to show that the court committed reversible error by

denying her motion to suppress. Secret v. Commonwealth, 296 Va. 204, 224 (2018). “Whether the circumstances of [a police interview] were such as to require Miranda warnings is a mixed question of law and fact.” Spinner v. Commonwealth, 297 Va. 384, 392 (2019). Appellate courts “review such questions de novo but defer to the fact-finder’s findings of historical fact unless they are plainly wrong or without evidence to support them.” Id.

The Fifth Amendment of the United States Constitution provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”3 The United States Supreme Court addressed this guarantee in Miranda v. Arizona, 384 U.S. 436 (1966), where it prohibited the prosecution from “us[ing] statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444.

The United States Supreme Court’s ruling in Miranda requires the police to provide warnings when a suspect is both in custody and being interrogated. Watts v. Commonwealth, 38

Va. App. 206, 214 (2002). Custodial interrogation is “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444. “The ultimate inquiry into whether an individual is subject to custodial interrogation is simply whether there is a formal arrest or restraint on freedom

of movement of the degree associated with formal arrest.” Spinner, 297 Va. at 392 (quoting Taylor v. Commonwealth, No. 1031-14-4, at[*10] (Va. Ct. App. Sept. 13, 2016)). See also California v. Beheler, 463 U.S. 1121, 1125 (1983).

To evaluate a suspect’s custodial status, we must determine “how a reasonable person in the suspect’s situation would have understood his circumstances.” Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 41 (2019) (quoting Dixon v. Commonwealth, 270 Va. 34, 40 (2005)). Factors relevant to this determination include whether the police used physical restraints, displayed their

weapons, engaged in physical contact, or told the suspect he was free to leave. Id. The number of officers present and whether the police “engaged in other incidents of formal arrest such as

booking” are also probative of custodial status. Id. (quoting Hasan v. Commonwealth, 276 Va. 674, 680 (2008)). Further, courts may consider “the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual.” Harris v. Commonwealth, 27 Va. App. 554, 565 (1998). “No single factor is dispositive of the issue.”

Aldridge v. Commonwealth, 44 Va. App. 618, 642 (2004) (quoting Harris, 27 Va. App. at 566).

- 10 -

In Aldridge, the defendant, an eighteen-year-old college student, willingly accompanied two police officers from her dormitory room to the police station. Id. at 628-29. The police interviewed her in a room with a closed but unlocked door. Id. at 629. They did not tell the defendant that she was free to leave but offered her food and drinks and told her not to walk around the facility by herself. Id. When the police advised her that they were investigating the discovery of a baby’s body, the defendant became distraught and stated that she gave birth and thought the child was

stillborn. Id. at 629-30. The police left the room, returned about forty minutes later, and advised the defendant of her Miranda rights, which she waived. Id. at 630. The defendant then confessed that the baby had been born alive and that she submerged the infant in bathwater. Id. at 630-31.

We affirmed the court’s ruling that the defendant was not in custody when she confessed.

Id. at 647. “It is the custodial nature rather than the location of the interrogation that triggers the necessity for giving Miranda warnings.” Id. at 643 (emphasis added) (quoting Coleman v. Commonwealth, 226 Va. 31, 47 (1983)). Additionally, the other circumstances of the interview did not support a conclusion that the defendant was in custody. Id. at 643-47.

Here, appellant made statements to police under similar circumstances. Both appellant and the defendant in Aldridge were college students who willingly accompanied law enforcement officers to a police station. See id. at 628-29. Neither was restrained, the questioning occurred in a

room with a closed but unlocked door, and the police did not engage in any formal incidents of arrest, such as booking, when arriving at the police station. See id. at 629-30. See also Alvarez

Saucedo, 71 Va. App. at 43 (finding interview at police station non-custodial where the defendant

was interviewed by a detective and a Spanish interpreter in a closed but unlocked polygraph suite, and the defendant was not restrained or required to comply with formal incidents of booking).

These factors support the court’s findings that appellant’s interview was non-custodial until

15:21 and that police treated her as a potential witness, not a suspect, prior to that time. The police

- 11 - did not exert any force or restrain appellant in any manner, both when transporting her to the police

station and during the questioning there. The questioning, which was initially “conversational” and non-confrontational, occurred in a room with the door closed but not locked. Prior to 15:21, the investigators consistently advised appellant that she was “not in trouble.” Although appellant was not specifically told that she could leave at any time, she never asked to go. She was provided with food and water and allowed to keep her purse, backpack, and cell phone, which were not searched.

Therefore, we find that the court did not err in determining that a reasonable person would have felt free to leave under the circumstances of appellant’s interview. See id. at 41.

2. Statements on day two

Appellant also asserts that the court erred in denying her motion to suppress her statements from day two. Initially, appellant contends that her Miranda waiver was not knowing or intelligent because the officers’ gratuitous comments diminished the importance of her Miranda rights.

Appellant also argues that the United States Supreme Court’s holding in Missouri v. Seibert, 542

U.S. 600 (2004), required the court to suppress her confession. However, these arguments are unpersuasive.

First, we disagree with appellant’s assertion that her Miranda rights were “diluted” due to the officers’ remarks that their duty to advise her of her rights is a “procedural issue” that “really

doesn’t change anything.” She claims that these statements, along with psychological pressure, vitiated her waiver and rendered her statements inadmissible.

“A person may waive his rights under Miranda ‘if the waiver is made knowingly and intelligently.’” Tirado v. Commonwealth, 296 Va. 15, 27 (2018) (quoting Angel v. Commonwealth, 281 Va. 248, 257 (2011)). Courts may consider “the defendant’s age, education, language, alienage, experience with police, and whether the defendant stated that he understood his rights as read to him” to evaluate “whether the defendant comprehended the plain meaning of the - 12 - required warnings.” Id. at 29. This decision is a question of fact, and “the circuit court’s determination on this issue ‘will not be set aside on appeal unless plainly wrong.’” Id. at 27-28

(quoting Angel, 281 Va. at 258).

In its ruling, the court noted that the police not only advised appellant of her Miranda rights, they also told her she was free to refuse to answer any questions and could stop talking any time she

chose. Detective Hite described appellant, a freshman engineering student, as “intelligent” and “articulate.” Appellant signed a pre-printed form listing her Miranda warnings, and she did not express any confusion or hesitation in her discussions with police. The court also observed that appellant declined to terminate her conversation with the police when she was told that an attorney was waiting at the jail to talk to her. “[W]hether [the defendant] fully . . . understands the tactical advantage, in our system of justice, of not speaking [] does not affect the validity of his waiver.” Id.

at 29 (quoting United States v. Yunis, 859 F.2d 953, 965 (D.C. Cir. 1988)). The record supports the court’s finding that appellant knowingly and intelligently waived her rights.

We also disagree with appellant’s argument that her statements should have been suppressed based on the United States Supreme Court’s holding in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert provides a narrow exception to the general rule established in Oregon v. Elstad, 470 U.S.

298 (1985). In Elstad, the United States Supreme Court considered “whether the Self-Incrimination

Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.” 470 U.S. at 303.

While Elstad was detained at his residence, he made an inculpatory statement to the police before being advised of his Miranda rights. Id. at 300-01. Upon his arrest, the defendant was informed of his rights, waived them, and confessed. Id. at 301. The United States Supreme Court held that “absent deliberately coercive or improper tactics,” “an earlier voluntary but unwarned

- 13 - admission from the defendant” would not require suppression of a subsequent confession made after proper Miranda warnings. Id. at 303, 314. See also Secret, 296 Va. at 220, 225-27 (applying Elstad and affirming admission of subsequent statement made after Miranda warning because “[t]he relevant inquiry is whether, in fact, the second statement was also voluntar[y]” (quoting Elstad, 470

U.S. at 318)).

In Seibert, upon which appellant relies, the police arrested the defendant for murder. 542

U.S. at 604-05. She was taken to the police station where, pursuant to department policy, the arresting officer deliberately did not advise her of her Miranda rights, but questioned her for approximately thirty to forty minutes. Id. After the defendant confessed, the officer gave her a coffee and cigarette break and left the room. Id. at 605. Upon his return, he advised the defendant of her Miranda rights and resumed questioning until she reiterated her earlier confession. Id.

The United States Supreme Court concluded that the officer’s “‘conscious decision’ to withhold Miranda warnings” was distinguishable from the facts in Elstad. Id. at 605-06, 614-17. It found that the interrogation technique “undermine[d] [Seibert’s] Miranda warnings” and rendered her post-warning statements inadmissible. Id. at 616. The United States Supreme Court held that

“[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad,” except “in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring).4

Therefore, to determine the admissibility of post-warning statements, a court must consider whether “an interrogator use[d] this deliberate, two-step strategy, predicated upon violating Miranda