COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and Fulton

Argued at Norfolk, Virginia

RICHARD EUGENE STONER

MEMORANDUM OPINION* BY

v. Record No. 0762-23-1 JUDGE MARY GRACE O’BRIEN

JUNE 18, 2024

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Steven C. Frucci, Judge1

Kristin Paulding (7 Cities Law, on brief), for appellant.

David A. Stock, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Richard Eugene Stoner entered a conditional guilty plea to aggravated murder, murder, 

malicious wounding, statutory burglary, conspiracy, arson, four counts of using a firearm in the 

commission of a felony, and torturing or mutilating a dog to death. On appeal, Stoner contends the 

court erred by denying his motions to recuse the prosecutors from the case and to suppress his 

confession. Finding no error, we affirm Stoner’s convictions.

BACKGROUND

On appeal, we state the facts “in the ‘light most favorable’ to the Commonwealth, the 

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) 

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). In doing so, we discard any of 

Stoner’s conflicting evidence, and regard as true all credible evidence favorable to the 

* This opinion is not designated for publication. See Code § 17.1-413(A).

1 The Honorable Steven C. Frucci presided over the proceedings below. Now a member 

of this Court, Judge Frucci took no part in this decision. 

UNPUBLISHED
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Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald v. 

Commonwealth, 295 Va. 469, 473 (2018).

In 2004, Lois Schmidt (Lois) and her estranged husband, Christopher Schmidt 

(Christopher) were involved in fiercely contested divorce and child custody proceedings. 

Christopher recruited Stoner to kill Lois during a series of visits involving target shooting at

Stoner’s home in Florida, and paid Stoner to commit the murder.

On June 27, 2004, while Christopher was in Florida, Stoner drove to Virginia Beach to 

kill Lois. When Stoner arrived at Lois’s house on the morning of June 28, he knocked on the 

door and claimed to be Lois’s friend from high school, but she would not let him inside. Stoner 

cut the phone line and tripped the electrical circuit breakers to lure Lois outside to investigate. 

When she and her dog exited the garage door, Stoner shot the dog. Lois screamed, and Stoner 

shot her in the chest. While Stoner changed the magazine in his gun, Lois’s brother appeared 

from a back bedroom. Stoner shot Lois’s brother in the chest, cheek, and shoulder. He then shot 

Lois in the head to ensure she was dead and ordered Lois’s seven-year-old son to leave the 

house. When the child did not comply, Stoner shot him in the head, killing him.

Stoner set the house on fire to hide the evidence and returned to Florida. Despite his 

gunshot wounds, Lois’s brother crawled from the burning house to a neighbor’s home, who 

called 911. Both Christopher and Stoner were developed as suspects, but despite ongoing 

investigation, the crimes went unsolved until 2018.

In June 2018, Virginia Beach Police Detective Angela Murphy and other officers went to 

Logansport, Indiana, where Stoner lived, to interview him. The officers arranged to meet with 

Stoner at the Logansport Police Department and brought him a signed proffer letter from 

Virginia Beach Commonwealth’s Attorney Colin Stolle. In the letter, Stolle agreed not to seek 

the death penalty for Stoner if he cooperated in the investigation and prosecution for the crimes. 
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Before the officers could give him the letter, however, Stoner ended the interview and left the 

meeting.

Detective Murphy followed Stoner outside to his vehicle and showed Stoner the letter. 

Stoner looked at the letter, then drove away. Afterward, the Logansport police executed a search 

warrant at Stoner’s Indiana home and arrested him on unrelated charges.

On June 23, while Detective Murphy was at the airport to return to Virginia, an officer 

with the Logansport police contacted her and advised that Stoner, who was at liberty, wanted to 

speak with her. Detective Murphy called Stoner and agreed to return to Logansport and meet 

him at the police station to talk. Stoner asked if the proffer letter was “still good,” and the 

detective advised him that she would find out.

When the Virginia Beach detectives reached the Logansport Police Department, Stoner 

was in an interview room talking casually with one or two police officers. The door was open,

and he was not handcuffed. The detectives confirmed with Stoner that he understood that he was 

not under arrest and was speaking to them voluntarily. Stoner replied, “correct.” Stoner had a 

list of demands before he would agree to give a statement. At the top of Stoner’s list was 

“[proffer] letter confirmation.” Stoner stated he had contacted a family attorney, Adam 

Luckenbill, to look at the proffer letter and confirm its authenticity. Nonetheless, Stoner told the 

detectives, “I wanna discuss some things with you.” He also told the detectives that he could 

give them “everything [they] want.” Stoner acknowledged several times that he came to the 

police department on his own volition and made no statements indicating that he thought he was 

not free to leave.

At one point, Stoner said, “I don’t really don’t wanna talk about it without an 

attorney . . . until this is confirmed and that’s confirmed and we have accord.” As a result, 

Detective Murphy called Paul Powers, one of the Virginia Beach prosecutors in the case, on 
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speakerphone. Powers asked Stoner if he had any questions, and Stoner questioned whether the 

proffer letter was “real.” Powers confirmed that the letter was authentic and he had written it for 

Stolle’s signature. In subsequent phone calls, Stoner negotiated his list of demands with Powers. 

After Powers told Stoner what he could authorize, Stoner said, “Okay . . . I think I’m down.”

Powers also told Stoner that he had spoken to Luckenbill and that Luckenbill said he was 

an “estates” attorney and did not represent Stoner. Stoner responded that he understood that 

Luckenbill did not represent him but that he merely wanted Lukenbill to “confirm the letter was 

legit” and that Powers was who he claimed to be. Although Stoner asked the detective to call his 

wife and confirm that Luckenbill received the letter, he then asked the detectives if they were 

ready and said, “I’ll tell you whatever you want to know.”

At that point, the police advised Stoner of his Miranda2rights, and he executed a written 

waiver of his rights. Shortly after he signed the waiver, Stoner told the detectives, “You know, 

in all honesty, I have wanted to do this for a long fuckin’ time.” Stoner confessed to the crimes.

In denying Stoner’s motion to suppress his confession, the court found that he was not in 

custody during the pre-Miranda phase of the interview, nor did he invoke his right to counsel 

during that period of time. The court further concluded that Stoner’s statement was voluntary 

and the police did not coerce him to confess. The court rejected Stoner’s claim that Powers and 

Stolle were necessary witnesses to issues raised in his suppression motion and denied Stoner’s 

motion to recuse them from prosecuting the case.

2 Miranda v. Arizona, 384 U.S. 436 (1966).
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ANALYSIS

I. Custodial Police Interrogation

Stoner contends that the court erred in denying his motion to suppress his confession 

because police subjected him to custodial interrogation after he invoked his right to an attorney. 

We first consider whether Stoner was subject to a custodial interrogation.

Under Edwards v. Arizona, 451 U.S. 477 (1981), “when an accused, during a custodial 

interrogation, invokes the right to have counsel present, the police may not resume the 

interrogation until the individual re-initiates communications and waives his right to counsel.” 

Tipton v. Commonwealth, 18 Va. App. 832, 834 (1994). The Edwards rule, however, “has not 

been expanded to include non-custodial demands for an attorney.” Id.

Whether a suspect is subject to a custodial interrogation “is determined by the 

circumstances of each case, and ‘the ultimate inquiry is simply whether there is a “formal arrest 

or restraint on freedom of movement” of the degree associated with formal arrest.’” Ford v. 

Commonwealth, 28 Va. App. 249, 256 (1998) (quoting California v. Beheler, 463 U.S. 1121, 

1125 (1983)). To evaluate a suspect’s custodial status, we consider “how a reasonable person in 

the suspect’s situation would have understood his circumstances.” Keepers v. Commonwealth, 

72 Va. App. 17, 34 (2020) (quoting Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 41 

(2019)). Evaluating whether a detention is “custodial” requires consideration of many factors, 

including “whether a suspect is questioned in familiar or neutral surroundings, the number of 

police officers present, the degree of physical restraint, and the duration and character of the 

interrogation.” Wass v. Commonwealth, 5 Va. App. 27, 32-33 (1987). “[N]o single factor alone 

may necessarily establish custody for Miranda purposes, and not all factors may be relevant in a 

given case.” Id. at 33.
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It is undisputed that Stoner himself initiated contact with Detective Murphy, asked to 

speak with the Virginia Beach detectives, and agreed to meet them at the Logansport Police 

Department. When the detectives arrived, Stoner was in an interview room with the door open,

speaking casually to police officers there. A detective explicitly told Stoner that he was not 

under arrest. He was unrestrained, and there was nothing to prevent him from leaving and 

ending the contact with the police. Indeed, Stoner had left a police interview a few days prior 

without being stopped. During his conversation with the Virginia Beach detectives, Stoner 

repeatedly acknowledged that he was at the police department willingly and was there to make a 

deal. Accordingly, a reasonable person in Stoner’s circumstances would have felt free to leave, 

and these facts amply support the court’s ruling that Stoner was not subject to a custodial 

interrogation before he was advised of his Miranda rights.3 See Keepers, 72 Va. App. at 35-36.

II. Voluntariness of Confession

Stoner argues that the court erred by denying his motion to suppress his confession 

because it resulted from police coercion. He maintains that the “pressure applied on him” 

because of the search of his home and “the threat of the death penalty” in the proffer letter “are 

the only reasons [he] reached out to the detectives and confessed.”

Statements are made “voluntarily” when they are “the product of a free and deliberate 

choice rather than intimidation, coercion or deception.” Moran v. Burbine, 475 U.S. 412, 421

(1986). “Although we defer to the court’s findings of historical fact unless plainly wrong or 

without evidentiary support, we review the legal question of voluntariness de novo.” Keepers, 

3 Having reached this conclusion, we need not examine whether Stoner unequivocally 

invoked his right to counsel before he received his Miranda warnings by requesting that 

Luckenbill assess the proffer letter. See Commonwealth v. White, 293 Va. 411, 419 (2017) 

(recognizing that “judicial restraint dictates that we decide cases on the best and narrowest 

grounds available” (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015))). For the same 

reason, we need not consider whether receiving Miranda warnings precluded examination of the 

pre-warning circumstances. See Missouri v. Seibert, 542 U.S. 600 (2004).
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72 Va. App. at 40. To determine whether “the statement was the product of an essentially free 

and unconstrained choice by its maker,” we consider the totality of the circumstances, “including 

not only the details of the interrogation, but also the characteristics of the accused.” Id. (quoting

Novak v. Commonwealth, 20 Va. App. 373, 386 (1995)). Such characteristics include his “age, 

intelligence, mental and physical condition, background and experience with the criminal justice 

system.” Id. at 41 (quoting Washington v. Commonwealth, 43 Va. App. 291, 302 (2004)). 

Police conduct is also relevant, such as “interrogation techniques employed, including evidence 

of trickery and deceit, psychological pressure, threats or promises of leniency, and duration and 

circumstances of the interrogation.” Id. (quoting Terrell v. Commonwealth, 12 Va. App. 285, 

291 (1991)). In any event, however, “[c]oercive police activity is a ‘necessary predicate’ to 

finding that a confession was involuntary.” Thomas v. Commonwealth, 72 Va. App. 560, 580

(2020) (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

The circumstances surrounding Stoner’s confession show that it was not the product of 

“intimidation, coercion or deception.” Moran, 475 U.S. at 421. As discussed previously, Stoner 

initiated contact with the detectives and requested a meeting with them. These actions belie 

Stoner’s claim that he was somehow coerced because the police had searched his home pursuant 

to a warrant. Furthermore, during his exchange with the detectives and phone calls with Powers, 

Stoner sought to confirm the validity of the Commonwealth’s assertion that it would not seek the 

death penalty, but the Commonwealth made no other promises of leniency concerning what 

charges Stoner might face or how he could be punished. Indeed, Stoner presented the detectives 

with a list of demands and negotiated them with Powers, evincing his knowledge of the criminal 

justice system. As the Commonwealth argues on brief, “Stoner engaged in a cautious 

give-and-take discussion with detectives in deciding whether to agree to cooperate with them.” 
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Because the record contains no evidence of coercive conduct by the police, we will not disturb 

the court’s finding that Stoner’s confession was freely and voluntarily given.

III. Recusal of Prosecutors

Stoner argues that the court erred by refusing to recuse Powers and Stolle from the case 

because they were necessary witnesses to his motion to suppress. He maintains that he needed to 

challenge the meaning of the terms in the proffer letter to establish that his confession was 

coerced and that to do so, he needed to question “the two men who prepared the letter.”

Under Rule 3.7(a) of the Rules of Professional Conduct, “[a] lawyer shall not act as an 

advocate in an adversarial proceeding in which the lawyer is likely to be a necessary witness,” 

with some exceptions. “Critical to the application of this principle is the requirement that the 

lawyer be a necessary witness.” Teleguz v. Commonwealth, 273 Va. 458, 490-91 (2007). This 

Court reviews a trial court’s refusal to recuse the Office of the Commonwealth’s Attorney for an 

abuse of discretion. Fisher v. Commonwealth, 16 Va. App. 447, 456 (1993).

The court did not abuse its discretion by finding that Stoner failed to establish that

Powers and Stolle were necessary witnesses. Stoner makes no arguments as to how questioning 

Powers and Stolle about the contents, details, and meaning of terms in the letter would further his 

arguments about coercive police conduct; indeed, Stoner’s argument is that the letter was 

coercive by plainly mentioning the death penalty, which intimidated him into confessing. As 

noted above, the record contains no indication that Stoner’s confession was coerced. Stoner 

consistently indicated that he wanted to talk to the police and desired only confirmation of the 

authenticity of the proffer letter, not clarification on its contents. Under these facts, the court did 

not abuse its discretion by refusing to recuse Powers and Stolle from prosecuting Stoner’s case.
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CONCLUSION

For these reasons, we affirm the court’s judgment.

Affirmed.