COURT OF APPEALS OF VIRGINIA 

Present: Judges Decker, AtLee and Malveaux 

Argued at Richmond, Virginia 

NICHOLAS SECRET, S/K/A 

 NICHOLAS CHARLES SECRET

 MEMORANDUM OPINION* BY 

v. Record No. 0853-15-2 JUDGE RICHARD Y. ATLEE, JR. 

 FEBRUARY 14, 2017 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUISA COUNTY 

Timothy K. Sanner, Judge 

Norman A. Thomas (Norman A. Thomas, PLLC, on briefs), for 

appellant.

 Robert H. Anderson, III, Senior Assistant Attorney General 

(Mark R. Herring, Attorney General, on brief), for appellee. 

 A jury sitting in the Circuit Court of Louisa County convicted appellant Nicholas Charles 

Secret of one count of arson and nine counts of attempted first-degree murder. On appeal, Secret 

assigns four errors. Additionally, a panel of this Court directed the parties to brief a fifth issue 

concerning certain procedural irregularities. For the reasons that follow, we affirm Secret’s 

convictions. 

I. BACKGROUND

“On appeal of criminal convictions, we view the facts in the light most favorable to 

the Commonwealth, and draw all reasonable inferences from those facts.” Payne v. 

Commonwealth, 65 Va. App. 194, 198, 776 S.E.2d 442, 444 (2015).1 So viewed, the evidence 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 The exception in this case is the manner in which we view the facts as they relate to 

Secret’s assignment of error regarding the circuit court’s refusal of his proffered jury instruction. 

UNPUBLISHED 
- 2 - 

showed that in early September 2013, Secret began camping at the Acorn Community (“Acorn”) 

in Louisa County. A witness at trial described Acorn as an “intentional community” comprising 

“about thirty (30) people” who live and work together, sharing the income derived from “cottage 

industries” such as a “heritage and organic seed business.” Acorn permitted non-members to 

stay on its property in various capacities, including as “guests.”2

The main building located on Acorn’s property was a two-story structure called 

Heartwood. At Heartwood, there were bedrooms in which members and their guests slept, 

kitchen facilities for cooking, communal areas for eating and holding meetings, computers, and 

laundry facilities. Secret was a guest at Acorn by invitation of a member named Paxus Calta. 

Secret attended some meetings and meals at Heartwood. However, after Secret had been at 

Acorn through September, Calta notified him that, with the change in seasons, Acorn would not 

be able to house him for the winter and that he needed to leave by Thanksgiving. (Calta testified 

that, although Acorn permitted camping, “when it starts getting cold we want to make sure that 

everybody who is living with us is in a heated building.”) Calta also told Secret that some 

members were concerned about his behavior and that he was making them “uncomfortable.” 

Calta told Secret that if he did not address these behavioral concerns, he would have to leave 

earlier than Thanksgiving. Secret appeared to respond appropriately to Calta’s directives. 

 

See infra, Part II.D. In that instance alone, we view the facts in the light most favorable to 

Secret. See Payne, 65 Va. App. at 198, 776 S.E.2d at 444 (observing that in such instances, an 

appellate court “view[s] the facts relevant to the determination of that issue in the light most 

favorable to [the defendant]” (quoting Miller v. Commonwealth, 64 Va. App. 527, 547, 769 

S.E.2d 706, 716 (2015) (alterations in original))). 

2

 “Guest” is a term of art at Acorn, used as both a noun and a verb. One member of 

Acorn described the concept by observing that “[p]eople who are guesting are people who have 

hosts in the community, and the amount of time that they stay is determined by the host or in 

some cases by the host and the community.” 
- 3 - 

On October 12, 2013, at 5:00 a.m., Calta was working in a downstairs office in 

Heartwood when he smelled smoke. Other people were still asleep throughout the building. 

Seeing a fire burning in the kitchen area, Calta alerted the occupants of the building and called 

911. Calta noticed fuel cans in the living room and fuel on floors outside of offices and 

bedrooms in Heartwood. Some of Heartwood’s second-floor occupants were trapped upstairs 

and forced to jump from the roof to escape the fire. Residents of Acorn, working together using 

buckets of water, succeeded in extinguishing the fire before the fire department arrived. 

Although no one was killed or suffered serious injury, some who escaped the blaze had bruises 

and scratches. Expert testimony at trial established that the start of the fire was “inconsistent 

with an accident.” 

After putting the fire out, the residents of Acorn conducted a head count. Secret was the 

only person known to be staying on Acorn property who was missing. Peter Lazear, a Special 

Agent with the Virginia State Police and a member of the “arson/bomb unit,” went to Acorn to 

investigate the cause of the fire and to gather evidence. Around 5:00 p.m., Special Agent Lazear 

completed his work at Acorn and began driving back to Richmond to deposit the evidence he had 

gathered. Meanwhile, Secret, who by this time was a suspect in the arson as he was the only 

person unaccounted for following the fire, returned to Acorn. 

Christopher Snyder, a deputy with the Louisa County Sheriff’s Office, was dispatched to 

Acorn after Secret’s return. When Deputy Snyder arrived at Acorn, Secret was outside, sitting in 

a chair in the rain, with a semi-circle of angry Acorn residents around him. Deputy Snyder 

advised Secret that someone from the State Police wanted to talk to him and was on the way. 

Thereafter, Deputy Snyder placed Secret in “investigative detention” and handcuffed him. 

Secret was cold and wet, and Deputy Snyder offered him a cigarette and otherwise tried to make 

him comfortable until the arrival of the State Police. While this was going on, Louisa County 
- 4 - 

dispatch notified Delmas Roberts, Jr., a Special Agent with the Virginia State Police, who had 

been searching for Secret, that Secret was back at Acorn with Deputy Snyder. As Special Agent 

Roberts responded to Acorn, he called Special Agent Lazear. Special Agent Roberts testified: “I 

called Special Agent Lazear to let him know that Mr. Secret was back at the scene and that I was 

responding back.” Special Agent Lazear testified that after hearing this, he “finished processing 

the evidence at [the] Richmond facility and then . . . started responding back to Louisa County.” 

Special Agent Lazear testified further: 

Agent Roberts contacted me again to ask if I would be interested in 

speaking to Mr. Secret, and, of course, I said, yes, and he asked if I 

would like to speak to him there at the scene at Acorn Community 

or if I would like to speak with him at the sheriff’s office. . . . My 

preference to Agent Roberts was that I would prefer to speak with 

him at the sheriff’s office if Mr. Secret was willing to go there of 

his own accord.[3

] 

When Special Agent Roberts arrived at Acorn, he instructed Deputy Snyder to remove the 

handcuffs from Secret. Special Agent Roberts “asked [Secret] if it would be okay if we 

transported him to the sheriff's office, that he wasn’t under arrest, but the sheriff’s office would 

be a warm, dry place away from here, you know, where we could talk and he agreed. He said 

that would be fine.” Deputy Snyder agreed to transport Secret, since Deputy Snyder’s vehicle 

was equipped with a “cage.” However, Louisa County Sheriff’s Office departmental policy 

mandated that anyone transported by a deputy be handcuffed. Secret consented to being 

 3

 Asked at trial why he preferred to speak with Secret at the sheriff’s office, Special 

Agent Lazear responded: 

At the Acorn Community it was an ugly day. It was very nasty, it 

was rainy, the temperature was dropping, and the sun was going 

down so it was getting dark, and then I also knew there were a lot 

of community members at the Acorn Community and they all had 

exhibited a lot of emotions throughout the day and I know they 

were anxious to speak with Mr. Secret as well, so I just felt like if 

we were able to speak at the sheriff’s office, it would be a more 

private environment for us to have a conversation. 
- 5 - 

handcuffed, and remained so restrained during the trip to the sheriff’s office, which took 

approximately fifteen minutes. Later, Special Agent Roberts called Special Agent Lazear again: 

I told him that I spoke with—I spoke with Mr. Secret and he 

acknowledged that it was okay to go—he gave consent to go to the 

sheriff’s office, so he was under the impression that we were going 

to transport him to the sheriff’s office, which was a closer 

destination from where he was coming, Special Agent Lazear. 

Upon arrival at the sheriff’s office, Deputy Snyder took Secret inside through the sally port,4

 past 

various cells, and ultimately into an interview room. After arrival at the sheriff’s office, Secret’s 

handcuffs were removed. 

 When Special Agent Lazear arrived at the sheriff’s office, he “had casual, social 

conversation with the few people that were there but nothing concerning Mr. Secret or this case.” 

He then proceeded to the interview room and spoke with Secret for over an hour. Initially, he 

offered Secret no warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Explaining his 

decision not to do so, Special Agent Lazear testified: 

It was my understanding at that time that Mr. Secret was at the 

sheriff’s office of his own free will and accord, so I approached 

that conversation as exactly that, just a conversation with a witness 

that—the same as I had with many other people that day. I did not 

feel he was in custody, and I did not feel like he needed to be read 

his Miranda warnings at that time. 

(Underscoring added). Special Agent Lazear was the only person interviewing Secret, and did 

not threaten him or physically intimidate him. The door remained closed throughout the 

interview. For the first portion of the interview, lasting approximately forty minutes, Special 

Agent Lazear simply allowed Secret to speak, offering Secret little direction. Special Agent 

Lazear described this as “more of a casual conversation” which allowed Secret to speak “about 

his life and his understanding of the world.” Special Agent Lazear explained that he was trying 

 4

 A sally port is an area of a building containing a secure entrance/exit that police 

typically use when transporting prisoners in their custody. 
- 6 - 

to “build a rapport” with Secret. Eventually, Special Agent Lazear asked Secret: “[W]hat about 

Acorn made you start the fire in the kitchen this morning?” Although Secret did not respond 

directly at that time, approximately twelve minutes later, Secret confessed to starting the fire, 

saying, among other things: “I dumped a whole bunch of fuel in there, then threw a thing full of 

lit matches into some of the fuel.” Following this admission, Special Agent Lazear said: 

Well, Nick, what you’ve admitted to me is, it’s pretty serious and 

so the law says I have to read something to you before we talk any 

more about it, okay? So I’ve got a card here that I’m just going to 

read to you and go over with you and these are called your 

Miranda warnings. 

Special Agent Lazear then read Secret Miranda warnings. Secret indicated his familiarity with 

Miranda warnings and confirmed both that he understood the rights read to him and that he 

wished to waive those rights and continue to speak with Special Agent Lazear. Over the course 

of the next half-hour, Secret admitted that he set the fire in the kitchen at Acorn that morning, 

using matches and gasoline. He admitted placing other flammable liquids inside of Heartwood. 

Secret responded affirmatively when Special Agent Lazear asked, referring to Acorn residents: 

“Did you know they were upstairs?” Other than Calta, Secret did not name any of the eighteen 

victims listed in the indictments. Secret said that when he was setting the fire, he saw Calta “in 

the computer room” and walked behind him “trying to be ginger, . . . ‘cause I, I had a plan, like, 

to . . . dump fuel, dump fuel, dump fuel, light, but I didn’t really follow through on the last 

dumping of fuel, probably because [Calta] was in the computer room.” He admitted to fleeing 

after starting the fire. Throughout Special Agent Lazear’s questioning, Secret made bizarre 

statements, including that he believed the people inside of Heartwood were “holograms” whom 

the fire would not harm and that these people actually asked him to set the fire.5

 5

 At trial, Secret raised neither his sanity at the time of the offense nor his competency to 

stand trial. 
- 7 - 

Ultimately, the Commonwealth charged Secret with one count of arson of an occupied 

dwelling, a felony, in violation of Code § 18.2-77. The Commonwealth also charged Secret with 

eighteen counts of attempted first-degree murder “in the commission of arson,” each of which 

was a felony, in violation of Code §§ 18.2-26 and 18.2-32. These eighteen charges all 

corresponded to people sleeping in Heartwood the night before the fire. 

 Prior to trial, Secret moved to suppress his admissions to Special Agent Lazear, arguing 

that the process by which he was advised of his Miranda rights only after admitting to setting the 

fire violated his rights under the both the Constitution of the United States and the Constitution 

of Virginia. The circuit court heard testimony, and reviewed the audio and video recording of 

Secret’s statements to Special Agent Lazear. The circuit court ultimately made detailed findings 

of fact concerning the circumstances of Special Agent Lazear’s interview of Secret, and ruled 

that all of Secret’s statements prior to the Miranda warnings were inadmissible. The circuit court 

also ruled, however, that all of Secret’s statements after the Miranda warnings would be 

admissible in Secret’s trial. 

 At trial, at the conclusion of the Commonwealth’s case-in-chief, the circuit court struck 

five of the attempted first-degree murder charges, leaving the arson charge and thirteen 

first-degree murder charges. Secret presented no evidence. He renewed his motion to strike the 

remaining charges, which the circuit court denied. Before closing arguments began, the parties 

discussed jury instructions with the circuit court. Secret proposed a jury instruction, labeled 

“Jury Instruction 18,” that addressed intent. The trial court refused the instruction, because it 

was “confusing” and because other instructions would convey the same information. 

The jury found Secret guilty of arson and guilty of nine of the attempted first-degree 

murder charges. The jury acquitted him of four of the attempted first-degree murder charges. 

The jury sentenced Secret to five years in the penitentiary for arson, and to two years in the 
- 8 - 

penitentiary for each of the nine counts of attempted first-degree murder. The jury 

recommended a total sentence of twenty-three years, a sentence the circuit court ultimately 

imposed. Secret noted his appeal to this Court. 

II. ANALYSIS

Secret assigns the following four errors: 

1. The Trial Court Erred in Partially Denying Secret’s Motion 

to Suppress his October 12, 2013 Statement to Special 

Agent Lazear, because his Post-Miranda Warnings 

Statement was not Voluntary. 

2. This Court should Revisit its Holding in Kuhne v. 

Commonwealth, 61 Va. App. 79 (2012), and Either Extend 

or Modify it, or, Reverse its Adoption of the Legal Test of 

Justice Kennedy’s Concurrence in Missouri v. Seibert, 542 

U.S. 600 (2004), regarding Statements Resulting from 

Two-Step Police Interrogations. 

3. The Trial Court Erred in Denying Secret’s Motions to 

Strike the Commonwealth’s Evidence regarding each 

Attempted Murder Charge, because the Commonwealth 

Failed to Prove Secret’s Specific Intent to Kill the 

Individual Alleged Victims. 

4. The Trial Court Erred in Refusing Secret’s Proffered 

Instruction 18 on the Intent Necessary to Prove an 

Attempted Crime. 

Additionally, a panel of this Court “direct[ed] the parties to brief” an additional question: 

“Whether the transcripts relevant to appellant’s request for writ of certiorari and the trial court’s 

ruling that their omission was clerical error should be deemed properly filed and made part of the 

record.” 

A. Procedural Issue 

As a threshold mater, we address the procedural question propounded to the parties by a 

panel of this Court: may we deem Secret’s late-filed transcripts a part of the record, given that 

the circuit court ruled that their omission was due to a “clerical error”? This question arises due 
- 9 - 

to certain irregularities that arose following Secret’s convictions. The circuit court’s June 20, 

2015 sentencing order directed preparation of a record of the proceedings “including a transcript 

of the proceedings which will be initially charged to the Commonwealth and will be assessable 

as costs for the defendant should the appeal be denied.” The court reporter filed two volumes of 

transcripts in the circuit court on August 18, 2015, and Secret thereafter filed a notice of filing of 

transcripts.6 On November 4, 2015, Secret’s attorney realized that the court reporter had filed 

incomplete transcripts which omitted significant portions of the proceedings, including the 

circuit court’s rulings on pretrial motions, Secret’s motion to strike the Commonwealth’s 

evidence, certain rulings of the circuit court concerning jury instructions, and the 

Commonwealth’s closing arguments to the jury. On November 6, 2015, Secret filed with this 

Court motions to extend the deadline for filing his petition for appeal, and for certiorari to 

enlarge the record. By order on November 19, 2015, this Court ruled that “the time to file the 

petition for appeal herby [sic] is suspended pending further order of this Court.” 

Pursuant to Rule 5A:8(a), “[t]he transcript of any proceeding is a part of the record when 

it is filed in the office of the clerk of the trial court within 60 days after entry of the final 

judgment.” Rule 5A:8(b)(4)(ii) also warns: “When the appellant fails to ensure that the record 

contains transcripts or a written statement of facts necessary to permit resolution of appellate 

issues, any assignments of error affected by such omission shall not be considered.” However, 

Code § 8.01-428(B) addresses clerical mistakes, and states: 

Clerical mistakes in all judgments or other parts of the 

record and errors therein arising from oversight or from an 

inadvertent omission may be corrected by the court at any time on 

its own initiative or upon the motion of any party and after such 

notice, as the court may order. During the pendency of an appeal, 

such mistakes may be corrected before the appeal is docketed in 

the appellate court, and thereafter while the appeal is pending such 

mistakes may be corrected with leave of the appellate court. 

 6

 Secret had filed his notice of appeal on June 2, 2015. 
- 10 - 

On January 5, 2016, this Court entered an order finding that Secret’s appeal had “not yet been 

‘docketed’ in this Court for the purpose of Code § 8.01-428(B) because the petition for appeal 

has not yet been filed” and remanded the matter to the circuit court “for the limited purpose of 

determining whether the failure to file the relevant transcripts constituted a clerical mistake 

subject to correction pursuant to [Code] § 8.01-428(B) and, if so, what action is appropriate.” 

 At a hearing before the circuit court, Secret’s attorney proffered that the court reporter 

had mistakenly believed that “it wasn’t customary” to transcribe entire proceedings. The 

Commonwealth accepted the stipulation as true, as did the circuit court, which found that the 

“misunderstanding, however it might arise, clearly constitutes a clerical mistake in the [c]ourt’s 

view.” The circuit court ordered that the previously-omitted portions of the transcripts (which by 

that time had been transcribed and filed with the circuit court) “be sent by the clerk to the Court 

of Appeals forthwith.” By order entered January 29, 2016, the circuit court memorialized these 

rulings, and the additional transcripts were sent to this Court. The Commonwealth endorsed the 

order “Seen and not objected to.” 

 The Supreme Court addressed a similar situation in Belew v. Commonwealth, 284 Va. 

173, 726 S.E.2d 257 (2012). The Court observed that Code § 8.01-428(B)’s use of “the term 

‘clerical mistake’ . . . was sufficiently broad to encompass oversight or inadvertent omission by 

court reporters.” Id. at 178, 726 S.E.2d at 260 (citing Lamb v. Commonwealth, 222 Va. 161, 

164-65, 279 S.E.2d 389, 391-92 (1981)). The Court also confirmed that, “for the purposes of the 

statute, an appeal ‘is docketed in the appellate court’ when the petition for appeal is received in 

the appellate court.” Id. (citing Lamb, 222 Va. at 165, 279 S.E.2d at 392). 

We conduct de novo review of a trial court’s interpretation of the Code and the Rules of 

the Supreme Court. Id. at 177, 726 S.E.2d at 259. Pursuant to Belew, we find that the omission 

of the full transcripts was the result of a clerical mistake “arising from oversight or from an 
- 11 - 

inadvertent omission.” Code § 8.01-428(B). As such, the circuit court was empowered to 

correct the error. As no petition for appeal had yet been filed in this Court at the time the circuit 

court conducted its hearing to determine whether the transcripts had been omitted due to a 

“clerical mistake,” the circuit court retained jurisdiction to make its decision on that matter. 

Therefore, we deem all transcripts in this case properly filed and make them a part of the record.7

B. The Interrogation 

In his first and second assignments of error, Secret argues that the circuit court should 

have suppressed his entire statement to police. He urges this panel to modify existing binding 

precedent, but argues that even under existing precedent, the police unconstitutionally 

manipulated him into an unwarned confession. 

“In 1966, the United States Supreme Court . . . fashioned the now famous Miranda 

warnings that police must issue prior to interrogating suspects who are in custody.” Kuhne v. 

Commonwealth, 61 Va. App. 79, 87, 733 S.E.2d 667, 671 (2012). Designed to “assure that the 

individual is accorded his privilege under the Fifth Amendment to the Constitution not to be 

compelled to incriminate himself,” these warnings must precede custodial interrogation, or the 

statements cannot be used against the suspect in a subsequent criminal proceeding. Id. (quoting 

Miranda, 384 U.S. at 439). 

On occasion, a suspect who is in custody will provide 

incriminating statements without Miranda warnings and later 

provide further incriminating details after receiving Miranda 

warnings. The initial failure to warn may be due to oversight, 

confusion about whether a suspect is in custody, or a tactical 

choice by the police not to supply Miranda warnings. 

Id. Such interrogations occur in two “steps.” In the first step, police interrogate an unwarned 

suspect while he is in custody, and the suspect makes an incriminating statement. In the second 

 7

 Both Secret and the Commonwealth take this position in their briefs. 
- 12 - 

step, police advise the suspect of his Miranda rights, and the suspect makes additional 

incriminating statements. In both situations, because the suspect made unwarned admissions 

while subject to custodial interrogation, a court will suppress the suspect’s pre-warning 

statements. The question then becomes how a court treats the suspect’s post-warning statements. 

In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court held that “the admissibility 

of any subsequent statement should turn in these circumstances solely on whether it is knowingly 

and voluntarily made.” Kuhne, 61 Va. App. at 88, 733 S.E.2d at 671 (quoting Elstad, 470 U.S. at 

309). “ʻ[A]bsent deliberately coercive or improper tactics in obtaining the initial statement,’ the 

Court concluded, ‘subsequent administration of Miranda warnings . . . ordinarily should suffice 

to remove the conditions that precluded admission of the earlier statement.’” Id. (alterations in 

original) (quoting Elstad, 470 U.S. at 314). 

In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court confronted facts 

involving a police officer trained in the deliberate use of “two-step” interrogations. “Under this 

technique, police would first seek to elicit a confession without Miranda warnings. If successful, 

police would then issue Miranda warnings and guide the suspect through a repetition of the 

statement that was obtained without the benefit of Miranda warnings.” Kuhne, 61 Va. App. at 

88, 733 S.E.2d at 671. A plurality of four justices in Seibert promulgated a multi-factor test for 

assessing the effect of such deliberate tactics. Justice Kennedy concurred in the judgment, but 

wrote separately, offering his own prescription for dealing with deliberate two-step 

interrogations. Acknowledging the danger of “the infrequent case . . . in which the two-step 

interrogation technique was used in a calculated way to undermine the Miranda warning,” Justice 

Kennedy insisted that “[t]he admissibility of postwarning statements should continue to be 

governed by the principles of Elstad unless the deliberate two-step strategy was employed.” 

Seibert, 542 U.S. at 622 (emphasis added). 
- 13 - 

The United States Supreme Court has instructed lower courts interpreting plurality 

decisions of the Supreme Court that “the holding of the Court may be viewed as that position 

taken by those Members who concurred in the judgments on the narrowest grounds.” Kuhne, 61 

Va. App. at 91, 733 S.E.2d at 672-73 (quoting Marks v. United States, 430 U.S. 188, 193 

(1977)). Kuhne therefore adopted Justice Kennedy’s concurrence. 

Secret argues that this Court should extend, modify, or reverse Kuhne’s adoption of 

Justice Kennedy’s reasoning. However, the interpanel accord doctrine prevents this panel’s 

reconsideration of Kuhne. “Under that doctrine, a decision from a panel of this Court ‘cannot be 

overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.’” 

Sandoval v. Commonwealth, 64 Va. App. 398, 419, 768 S.E.2d 709, 720 (2015) (quoting 

Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003)). Further, 

we are constrained by our previous decisions and those of the 

Supreme Court. See Commonwealth v. Burns, 240 Va. 171, 

173-74, 395 S.E.2d 456, 457 (1990) (a panel decision of this Court 

is established precedent and binding under rules of stare decisis

upon subsequent panels); Moore v. Commonwealth, 14 Va. App. 

83, 85, 414 S.E.2d 859, 860 (1992) (panels of the Court of Appeals 

are bound by Supreme Court precedent). 

Bostic v. Commonwealth, 31 Va. App. 632, 635-36, 525 S.E.2d 67, 68 (2000). Thus, we are 

bound by the holding in Kuhne. 

 Secret argues that, even under Justice Kennedy’s test, adopted in Kuhne, the circuit court 

should have suppressed his post-warning statement. 

On appeal, the burden rests with appellant to show that the denial 

of his suppression motion constituted reversible error. Harris v. 

Commonwealth, 276 Va. 689, 695, 668 S.E.2d 141, 145 (2008). 

The reviewing court is bound by the trial court’s findings of 

historical fact unless plainly wrong or without evidence to support 

them, and “must give deference to the inferences that may be 

drawn from those factual findings.” Commonwealth v. Hilliard, 

270 Va. 42, 49-50, 613 S.E.2d 579, 584 (2005). 
- 14 - 

Kuhne, 61 Va. App. at 86, 733 S.E.2d at 670. The determination of whether the officer’s actions 

were deliberate is a factual finding by the trial court that this Court will not disturb on appeal 

unless plainly wrong or unsupported by the evidence. 

The circuit court made specific factual findings. It found the testimony of Deputy 

Snyder, Special Agent Roberts, and Special Agent Lazear credible. The circuit court correctly 

identified the key inquiry as “whether Special Agent Lazear purposefully utilized a two-step 

interrogation technique as proscribed by Seibert.” The circuit court concluded that Special 

Agent Lazear had not deliberately conducted a two-step interrogation, because “Special Agent 

Lazear believed that [Secret] had agreed to come voluntarily to speak with him at the Louisa 

County Sheriff’s Office.” The circuit court also found that Special Agent Lazear “had not been 

trained in, nor was he familiar with, the two-step interrogation technique.” 

These factual findings are not plainly wrong, and are supported by the evidence. Secret 

argues that Special Agent Lazear’s decision not to offer Miranda warnings at the outset of the 

interrogation came about only by Special Agent Lazear’s “willful ignorance” and that Special 

Agent Lazear’s unfamiliarity with two-step interrogation does not change the fact that he did, 

objectively, interrogate Secret in that manner. We disagree with Secret’s assertion, and decline 

to disturb the circuit court’s factual finding that Special Agent Lazear did not deliberately 

employ a two-step interrogation technique. 

Following that finding, the circuit court analyzed Secret’s interrogation pursuant to 

Elstad. Under that case, “the admissibility of any subsequent statement . . . [turns] solely on 

whether it is knowingly and voluntarily made.” Elstad, 470 U.S. at 309. “Voluntariness is a 

question of law, subject to independent appellate review,” but “[s]ubsidiary factual questions . . . 

are entitled to a presumption of correctness.” Avent v. Commonwealth, 279 Va. 175, 195, 688 

S.E.2d 244, 255 (2010) (quoting Midkiff v. Commonwealth, 250 Va. 262, 268-69, 462 S.E.2d 
- 15 - 

112, 116 (1995)). A trial court’s determination that a waiver of Miranda rights “was made 

knowingly and intelligently is a question of fact that will not be set aside on appeal unless plainly 

wrong.” Angel v. Commonwealth, 281 Va. 248, 258, 704 S.E.2d 386, 392 (2011). 

The circuit court watched and listened to the recording of Agent Lazear’s interrogation of 

Secret. The circuit court then made lengthy findings to support its ruling: 

Again, the [c]ourt considers the totality of the circumstances in 

which the statements were made. Initially, the [c]ourt finds that 

the circumstances under which the interview took place exhibit no 

element of coercion whatsoever. By the time the interview had 

begun, [Secret] had been provided with water and with a blanket to 

make him feel more comfortable. . . . No threats, be they explicit 

or implicit, were ever made to [Secret] . . . throughout the course 

of the interview, nor was there any moment when Special Agent 

Lazear sought to exploit the previously given unwarranted [sic] 

statement. . . . Special Agent Lazear . . . seemed to have a 

remarkably good understanding of [Secret]’s cosmetic [sic] 

theories. Having listened to those theories, as well, while they may 

be somewhat bizarre, they also have a certain rationality of them 

which Special Agent Lazear seemed to understand and this 

understanding seemed to be appreciated by [Secret]. . . . 

Immediately before administering the Miranda warnings, Special 

Agent Lazear advised [Secret] he had just admitted something to 

him that was pretty serious and that because of that he was 

required to give [Secret] his Miranda warnings. From this [Secret] 

could have concluded, perhaps, it might be best for him not to say 

anything further; however, [Secret] indicated he was familiar with 

the Miranda warnings, that he understood those rights, and when 

asked if he wanted to waive them and talk to Special Agent Lazear, 

he said, quote, sure, end quote. 

(Underscoring added). In light of these findings, the circuit court ruled “that the statements 

made by [Secret] following the administration of Miranda rights were not the product of 

coercion, were knowingly and voluntarily made, and, thus, the motion to suppress any statements 

following the administration of the Miranda warnings is denied.” (Underscoring added). Elstad 

held that in situations such as Secret’s, where police give Miranda warnings in the middle of a 

custodial interrogation, such warnings “ordinarily should suffice to remove the conditions that 

precluded admission of the earlier statement.” Elstad, 470 U.S. at 314. We find this to be just 
- 16 - 

such an ordinary situation, and agree with the circuit court that the second half of Secret’s 

statement need not have been suppressed. 

 Although Secret argues at length about his allegedly “altered mental state,” the circuit 

court found that during the interview, when Special Agent Lazear asked Secret if he was 

intoxicated, Secret “denied being under the influence of either drugs or alcohol, and having 

observed his appearance and demeanor during the course of the interview, the [c]ourt finds no 

evidence of impairment.” There was no factual finding that Secret was under the influence of 

drugs or alcohol.8

The trial court’s findings that Secret knowingly and voluntarily waived his right to 

remain silent was not plainly wrong. Accordingly, the trial court did not err in denying Secret’s 

motion to suppress his post-warning statements. 

C. Intent to Kill 

Secret asserts that the circuit court erred by denying his motions to strike each attempted 

murder charge because the Commonwealth failed to prove the specific intent to kill each 

individual victim. “When considering on appeal the sufficiency of the evidence presented 

below, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial 

court’s decision is ‘plainly wrong or without evidence to support it.’” Kelly v. Commonwealth, 

41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v. Commonwealth, 

39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “On appeal, we will consider the evidence 

in the light most favorable to the Commonwealth, as it prevailed in the trial court.” Whitehurst 

v. Commonwealth, 63 Va. App. 132, 133, 754 S.E.2d 910, 910 (2014). 

 8

 Secret asserts that “[t]he record established that Secret had ingested [a] hallucinogen,” 

then points this Court to the presentence investigation report. We do not agree that the 

presentence investigation report (dated over six months after the suppression hearing and over 

three months after the trial) which happens to include Secret’s self-serving statements about his 

drug use at the time of his crimes, “established” any such fact. 
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“‘To sustain a conviction for attempted murder, the evidence must establish both a 

specific intent to kill the victim and an overt but ineffectual act committed in furtherance of the 

criminal purpose.’ An overt act must go beyond mere preparation to commit the crime.” 

Bottoms v. Commonwealth, 22 Va. App. 378, 382, 470 S.E.2d 153, 155 (1996) (quoting Wynn 

v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987)). “Intent is the purpose 

formed in a person’s mind which may, and often must, be inferred from the facts and 

circumstances in a particular case.” Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 

313, 314 (1979). Among the circumstances from which intent may be inferred are “a person’s 

conduct and statements.” Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 

643 (2000). A jury “may infer that a person intends the immediate, direct, and necessary 

consequences of his voluntary acts.” Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 

S.E.2d 354, 356 (1998); see also Jury Instr. 10. Importantly, when a jury ascertains a 

defendant’s intent, it makes a factual determination which is “accorded great deference on appeal 

and will not be reversed unless clearly erroneous.” Towler v. Commonwealth, 59 Va. App. 284, 

297, 718 S.E.2d 463, 470 (2011). 

Secret admitted to Special Agent Lazear that he started the fire but now claims that, to 

support the attempted murder charges, the Commonwealth was required to prove he intended to 

kill the specific individual named in each indictment. Here, he claims, there was no evidence 

that he knew that those particular people were in the building when he set the fire. According to 

Secret, “each alleged victim had to be identified by Secret as an intended target of the purported 

direct, ineffectual act toward the commission of his or her first-degree murder.” We do not agree 

with Secret’s formulation of the law of intent. He cites, among other cases, Thacker v. 

Commonwealth, 134 Va. 767, 114 S.E. 504 (1922), and Hargrave v. Commonwealth, 214 Va. 
- 18 - 

436, 201 S.E.2d 597 (1974), arguing that the evidence must show the specific intent to kill the 

named victim. 

In Thacker, the Supreme Court observed: 

To do an act with intent to commit one crime cannot be an attempt 

to commit another crime though it might result in such other crime. 

To set fire to a house and burn a human being who is in it, but not 

to the offender’s knowledge, would be murder, though the intent 

was to burn the house only; but to attempt to set fire to the house 

under such circumstances would be an attempt to commit arson 

only and not an attempt to murder. A man actuated by general 

malevolence may commit murder though there is no actual 

intention to kill; to be guilty of an attempt to murder there must be 

a specific intent to kill. 

Thacker, 134 Va. at 770-71, 114 S.E. at 506 (quoting William L. Clark, Jr. & William E. Mikell, 

Handbook of Criminal Law 148 (3d ed. 1915)). Here, Secret was aware that Heartwood was 

filled with people. The circuit court observed that there was evidence from which 

the jury could find that [Secret] knew that they were in there and 

that by burning up the house and setting the fire in the way he did, 

spreading diesel all over creation, that he was basically making it 

so they would catch on fire and there would be no escape for the 

people that lived above the fire. 

The circuit court also pointed to the manner in which the defendant had set the fire and the fact 

that he had done so in the middle of the night when many people would be asleep as evidence 

from which the jury could infer his requisite specific intent. Lastly, the circuit court pointed to 

the evidence of “some difficulty [that Secret] had with the group” and “some dissatisfaction 

which came across in his statement to Special Agent Lazear . . . that evidenced frustration and an 

attempt to eliminate what he referred to as the holograms.” The circuit court stated that it was a 

reasonable inference that, by this reference, Secret meant “the people within Acorn and the 

people within Heartwood on the night in question . . . . He was essentially eliminating the people 

who reside there.” So, the jury “could infer that the immediate, direct, and necessary 
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consequence of [Secret starting the fire] . . . would be that the people within the dwelling would 

have been consumed within the fire . . . .” 

The record supports all of these conclusions. It is unnecessary for Secret to announce his 

intent to kill each individual victim. A jury may infer this. Secret argues that the evidence did 

not show that Secret knew anyone other than Calta was in Heartwood when he set the fire. A 

jury may infer such knowledge as well. Secret poured fuel around a building in the early 

morning hours when people were still sleeping. The evidence showed Secret wanted to 

eliminate the “holograms,” i.e., the people he knew were in the building at the time he started the 

fire. Further, he purposefully poured gas outside of bedrooms, offices, and the main living area 

throughout the first floor, making evacuation difficult. Together, this evidence supports the 

finding that Secret had the specific intent to kill those present in the building. 

The Commonwealth was not required to prove Secret intended to kill specific victims by 

name. The Commonwealth needed only show he intended to kill the people he knew were in the 

building, whether he knew their identities or not, at the time he set it on fire. The record shows 

that the trial court’s denial of Secret’s motion to strike on the issue of intent was not plainly 

wrong. Accordingly, the trial court did not err. 

D. Proffered Instruction 18 

Finally, Secret claims that the circuit court erred by refusing his proffered jury instruction 

on the “intent necessary to prove an attempted crime.” (Capitalization altered). The circuit court 

refused Jury Instruction 18, which stated: “To do an act with intent to commit one crime cannot 

be an attempt to commit another crime, though it might result in such other crime.” This 

instruction was a quotation from Thacker. See Thacker, 134 Va. at 770-71, 114 S.E. at 506. 

We review a trial court’s decision to refuse a jury instruction for abuse of discretion. 

King v. Commonwealth, 64 Va. App. 580, 586, 770 S.E.2d 214, 217 (2015) (en banc). 
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However, we review de novo “whether a jury instruction accurately states the relevant law.” 

Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) (quoting Orthopedic & 

Sports Physical Therapy Assocs., Inc. v. Summit Grp. Props., LLC, 283 Va. 777, 782, 724 

S.E.2d 718, 721 (2012)). In reviewing jury instructions, our “sole responsibility . . . is to see that 

the law has been clearly stated and that the instructions cover all issues which the evidence fairly 

raises.” King, 64 Va. App. at 586-87, 770 S.E.2d at 217-18 (quoting Molina v. Commonwealth, 

272 Va. 666, 671, 636 S.E.2d 470, 473 (2006)). “When considering whether a trial court abused 

its discretion by denying a defendant’s proffered instruction, ‘we view the facts relevant to the 

determination of that issue in the light most favorable to [the defendant].’” Holloman v. 

Commonwealth, 65 Va. App. 147, 174, 775 S.E.2d 434, 448 (2015) (alteration in original) 

(quoting Commonwealth v. Cary, 271 Va. 87, 91, 623 S.E.2d 906, 907 (2006)). Finally, parties 

are not entitled to redundant instructions covering principles of law already addressed in other 

instructions. King, 64 Va. App. at 587-88, 770 S.E.2d at 217 (citing Remington v. 

Commonwealth, 262 Va. 333, 349, 551 S.E.2d 620, 631 (2001)); see also Ambrose v. 

Commonwealth, 129 Va. 763, 766, 106 S.E. 348, 349 (1921) (“It is not desirable to multiply 

instructions and is not error to refuse even a correct instruction on a point upon which the jury 

has already been fully and correctly instructed.”). We find that Secret’s proffered Jury 

Instruction 18 was both confusing and duplicative. 

Secret claims Jury Instruction 18 was necessary to instruct the jury that it could not infer 

the specific intent to kill, in support of the attempted murder charges, solely based on the intent 

to commit arson. The proffered instruction does not clearly state this proposition. As the circuit 

court found, the instruction was “misleading” because it suggested that a person could not hold 
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two intents at the same time.9

 Furthermore, the circuit court granted other instructions that, when 

read together, serve the same purpose as Secret’s proffered instruction. See Jury Inst. 10 

(instructing that jury “may infer that every person intends the natural and probable consequences 

of his acts”); Jury Instr. 13 (instructing, in part, that “[t]he intent required to be proved in an 

attempted crime is the specific intent in the person’s mind to commit the particular crime for 

which the attempt is charged”); Jury Instr. 14 (instructing, in part, that “[t]he direct act required 

to be proved in an attempted crime is an act which shows a present intention to commit the 

crime”); Jury Instr. 19 (instructing that as one of the elements required to convict Secret of 

attempted first-degree murder, the Commonwealth must show that Secret “intended to commit 

the First-degree Murder of the alleged victim”). The instructions clearly stated the 

Commonwealth’s burden to prove the specific intent to kill each victim. Further, the evidence 

proved Secret’s specific intent to kill each victim. See supra, Part II.C. The law was clearly 

stated, and the instructions covered all issues raised by the case. Accordingly, the circuit court 

did not err by refusing Jury Instruction 18. 

III. CONCLUSION

 For the reasons stated above, we affirm Secret’s convictions. 

Affirmed. 

 9

 The circuit court observed: “[T]he problem is sometimes they’re simultaneous intents. 

I mean, that’s—that’s the problem. It just seems to rule out that inference.” Later, the circuit 

court stated: 

I don’t know what the jury would do with this proposed instruction 

because I think it’s vague and arguably misleading. It really does 

seem to the [c]ourt’s way of thinking that it simply seems to imply 

that there could only be one intent with respect to a set of 

circumstances and that, therefore, is kind of like, well, pick one, 

it’s one or the other.