COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Felton and Kelsey Argued at Chesapeake, Virginia

HAKIM M. ABDUL-WASI MEMORANDUM OPINION ∗ BY v. Record No. 2901-03-1 CHIEF JUDGE JOHANNA L. FITZPATRICK MAY 3, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Christopher W. Hutton, Judge Terry N. Grinnalds for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Jerry W. Kilgore, Attorney Ge neral, on brief), for appellee.

Hakim M. Abdul-Wasi (appellant) was indicted for first-degree murder in violation of Code § 18.2-32. He was convicted in a jury tria l of voluntary manslaughter, and sentenced to nine years in prison. Appellant contends thatthe trial court erred in denying his motion to suppress the transcript of his confession elic ited by police officers on September 23, 2002. He argues that he was in custody for purposes of Miranda during the interrogation and the police officers’ failure to advise him of his rights requi red the statements to be suppressed. Because we hold any error under the facts of th is case was harmless, we affirm.

I. BACKGROUND Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible

therefrom. See Juares v. Commonwealth , 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - “In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be dr awn therefrom.” Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). Viewed in this light, the evidence established that at the time of the offense, appellant was suspicious that his wife Vernae Hill (Hill) had recently been romantically involved with Corey Wells (Wells). Based on this suspicion, on September 22, 2002 appellant drove his wife’s car to Wells’ home and encountered Hill and Wells outside the home. When appellant confronted Hill, she got into the rental car she was driving and pulled away. Appellant followed her to a nearby parking lot, pulled in beside he r, and they argued for a few minutes before appellant left for work. When appellant returned home, Hill admitte d having sex with Wells and they began a heated argument. Appellant calle d her derogatory names, and a fight ensued. He stated that during the struggle he placed a choke hold on her a nd they fell to the ground. He saw that she was unconscious, and put her in the car to take her to the hospital. On the way to the hospital, appellant “realized that she wasn’t coming back . . . [a]t that point I was just thinking what am I going to do? What have I done?” He eventu ally abandoned Hill’s body and the car on a side street. As appellant approached his home on foot, the police conf ronted him and told him they had a warrant for his arrest for the unauthorized use of Hill’s car, which she had reported stolen. They arrested him, took him to th e police station, but re leased him after about forty-five minutes. The next day, Hampton Police Officer Michael Vandenheade (Vandenheade) was dispatched to the rental car that contained Hi ll’s body. He determined that Hill was dead and secured the area. He then went to appella nt’s home and placed him under “investigative

detention” in handcuffs in the back of his police car. Officer Kimb erly Brighton (Brighton)- 3 - arrived at appellant’s home about an hour late r. Brighton “asked him if he wouldn’t mind coming down to the police department to speak to [her] on a consensual basis so [they] could determine the whereabouts of Ms. Hill.” Appe llant agreed to do so. Brighton then asked Vandenheade to remove appellant’s handcuffs, and to ld appellant that she would give him a ride

home after the interview concluded. Appellant arrived at the poli ce station with Brighton at appr oximately 8:00 or 9:00 a.m. on September 23. Officer Steven Hatfield (H atfield) began to que stion appellant around 4:15 p.m. Appellant was asleep in the room when Hatfield arrived. Duri ng the initial period of questioning, Hatfield interrogated appellant intermittently over a period of over six hours. The transcript reveals that Hatfield began the interrogation as follows: Det. S. Hatfield: Hakim. Okay, Hakim I appreciate you coming down here voluntarily. You’re here on your own?

Hakim M. Abdul-Wasi: Yes. Det. S. Hatfield: Okay. You realize you’re not under arrest, you’re free to go, et cetera.

Hakim M. Abdul-Wasi: Yes. During the interrogation, Hatfield and other detectives attempted to elicit a confession from appellant, at first stating: “I think you know where she’s at,” and “Was there anything else that happened in Norfolk that I need to know about?” Initially, appell ant was unresponsive to these questions. Approximately one hour into the interrogation, detectives stated “Once again, we just want to check with you Hakim. You’re sti ll here on your own freewill, you understand, um?” to which appellant responded “Yeah.” Detectives appealed to appella nt’s religious beliefs, stating “I mean you’re a Christian, right?” . . . “You know , it’s very obvious right now . . . that you’re- 4 - hiding something . . . you don’t need to carry a burden around.” Detectives asked him to confess, stating that it was the right thing to do for “the Lord” and appellant’s family. Further into the questioning, Hatfield stated “right now you can’t go on any further without letting the truth come out,” to which appellant replied “Are you, are you saying that I’m under arrest?” Hatfield responded that he wasn’t. Hatfield continued: “You’re just about there to freedom, to be released from this.” Appellant replied: “No, what’s weighing on me is that you’ve got me here, um, you all . . . under the impr ession . . . I’m not being completely truthful

. . . when in fact that’s not the case.” Minutes la ter, appellant stated “I would really like to check on my children, to see them,” to which Hatfield responded “You’ll have that – you’ll have that opportunity . . . but right now we need to help you out before you can he lp you’re [sic] children

and check on them. . . .” Despite the detectives’ assurances that he wa s free to leave, appellant asked whether or not he had been charged or wh ether he was under arrest: Hakim M. Abdul-Wasi: You all have already charged me. Det. S. Hatfield: No, we haven’t. We have not. You’re not under arrest, but you have the opportunity Hakim to tell us the truth, to tell us that it was an accident. We have not charged you. Hakim M. Abdul-Wasi: Then why am I being questioned about what – what happened to her? Near the end of the interrogation, appellant stated “I choose not to discuss anymore matters at this point,” to which Hatfield responded “Uhh. We told you, you know, you’re down here voluntarily – you’re not under arrest. You’re free to go. We want your help. We want you to do what’s right, to help you out. Okay?” Ap pellant replied, “I want to see my children.” Appellant asked, “Why can’t I l eave?” to which Hatfield res ponded, “All we’re doing is asking you to do what’s right. We appreciate you coming down here voluntarily.” The detectives- 5 - repeatedly asked appellant to continue, and he responded that he couldn’t “go on.” At one point appellant asked: “If I say nothing else can I be able to leave?” Hatfield responded, “I told you you’re not under arrest, okay?” A few minutes la ter appellant asked “If I choose not to say anything else until the morning would I be ab le to leave here tonight?” The questioning continued in this manner, with appellant repeat edly asking “Can I plea se leave,” “I’m tired detective,” “I’d just like to l eave,” “I’d like to go,” and detectives pleading for him to do “What’s right,” stating “we got to finish tonight man.” Eventually, at the end of the pre-Miranda questioning, the officers elicited an incriminating statement: Lt. R. Seals: Okay. Well, you’ve already said it, your arms are around her neck, so what happens next? Det. S. Hatfield: You’re on the floor your arms around her neck, you’re tangled up. You said you couldn’t get up. Hakim M. Abdul-Wasi: And I tried to get up; and she was tangled . . . struggling, struggling. . . Lt. R. Seals: How did you get into the car?

Hakim M. Abdul-Wasi: Carried her.

Det. S. Hatfield: Carried her? At that point, the officers took a break, then placed appellant under arrest, read him his

Miranda rights, and resumed questioning. The ensui ng interrogation produced a confession from appellant. On January 6, 2003, appellant was indicted fo r murder in violation of Code § 18.2-32. On January 31, 2003, he moved to suppress the statements he made during questioning by Hampton police officers and detectives on Se ptember 23, 2002, because the interrogation was conducted while he was in custody wi thout being advised of his Miranda rights. The trial court

denied the motion and admitted the statements. Du ring appellant’s case-in-chief, he testified and- 6 - presented the same evidence he sought suppressed at trial. This included, inter alia , that he and Hill argued about her infidelity, th at they struggled, that he placed a choke hold on her, that she lost consciousness and died, and that he pl aced her body in the car, drove away, and abandoned her and the car on a side street. During cro ss-examination by the Commonwealth, he admitted

he killed his wife: Q: Because at that point, you knew your wife was dead? A: I knew that my wife was dead, yes. Q: Because you had, in fact, taken her life, is that correct?

A: That is correct. Appellant was convicted of voluntary mans laughter on July 11, 2003, and sentenced to nine years in prison on October 21, 2003. He f iled his notice of appeal on November 10, 2003.

II. ANALYSIS Appellant contends on appeal th at the trial court erred in denying his motion to suppress both the initial and post-Miranda confessions because: 1) he was in custody during the initial interrogation and was not given Miranda warnings, and 2) his later statement, given after he was placed under arrest and given Miranda warnings, was a product of the coercion of the pre-Miranda interrogation. Assuming, without deciding, that the trial co urt erred in denying appellant’s motion to suppress the interrogation transcript , we conclude that appellant’s testimony at trial waived his right to object to the same evidence on appeal, rendering any error harmless. Thus, we affirm. “Where an accused unsuccessfully objects to evidence which he considers improper and

then on his own behalf introdu ces testimony of the same char acter, he thereby waives his objection, and we cannot reverse for the alleged error.” Hubbard v. Commonwealth , 243 Va. 1,- 7 - 9, 413 S.E.2d 875, 879 (1992); see also Bynum v. Commonwealth , 28 Va. App. 451, 459, 506 S.E.2d 30, 34 (1998). At the suppression hearing, appellant objec ted to the Commonwea lth’s introduction of the interrogation transcripts, whic h contained his explanation of how his wife died. Later, during his case-in-chief, appellant testified to the same matters that were the subject of the earlier suppression hearing. On direct ex amination, he described the dete rioration of his marriage, his suspicions that his wife was ha ving an affair, his confrontation with his wife at Wells’ home, their argument later that night, the ensuing struggle, his choking his wife which resulted in her death, and that he put her body in a car and late r abandoned it. It was uncontroverted that appellant killed his wife. He admitted it in both his statement and in his testimony at trial. In both, he attempted to mitigate his culpability. We note, in fact, that his tactical decision to explain his actions effectively re duced his offense from murder to manslaughter. By presenting this evidence during his case-in-chief, he waived his objection to the evidence at the earlier suppression hearing. Thus, we cannot reverse for any alleged error.

We note that there are limitations on this wa iver rule. When “the objecting party elicits evidence of the same character either during cr oss-examination of a witness or in rebuttal testimony, a duly made objection is not wa ived.” Drinkard-Nuckols v. Andrews , 269 Va. 93, 102, 606 S.E.2d 813, 818 (2005). This limitation is inapp licable in the instant case. As we have stated, during his case-in-chief appellant testified at length concerning evidence of the same

character as that to which he objected at the suppressi on hearing. Appellant was the sole witness presented, and his testimony was sufficiently sim ilar to his testimony duri ng the interrogation to waive his objection to the same ev idence at the suppression hearing. For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.