COURT OF APPEALS OF VIRGINIA Present: Chief Judge Fitzpatr ick, Judges Benton and Clements Argued at Alexandria, Virginia

ALLAN LEIGH ROTHER MEMORANDUM OPINION * BY v. Record No. 2187-02-4 JUDGEJAMES W. BENTON, JR. DECEMBER 30, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY William D. Hamblen, Judge Robert F. Horan, III (Hart & Horan, on brief), for appellant. Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
A jury convicted Allan Leigh Rother of first-degree murder and sentenced him to life in prison. On appeal, Rother conten ds that the trial judge erred in (1) refusing to suppress statements he made to the police, (2) findingthe evidence sufficient to estab lish murder and premeditation and, thus, denying his motion to strike the evidence, and (3) overruling objections to the prosecutor’s closing statements. We affirm the conviction.
I. Rosemary Tascione and Rother were in a relationship for sixteen years and lived together in Prince William County. Tascione’s employment supervisor testified th at she left a telephone message at Tascione’s residence on Friday, November 3, 2000, askingher to come to work early on Monday. Tascione never returned her call. On Monday, Ro ther telephoned one of Tascione’s co-workers and Tascione’s supervisor. He said he had not seen Tascione and expressed concern for her. Rother went to his neig hbor’s house that same evening and told her that he was worried

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - because Tascione was missing. The neighbor descri bed Rother’s appearance as “pale as a ghost,” “shaking,” and “nervous,” and re called that Rother said several times “death comes in multiples of three.” On Tuesday, Rother arrived at work forty minuteslater than his usual time of ar rival. He told a co-worker that Tascione was missing an d showed him a paper w ith names of people he intended to contact in an effort to locate Tascione. That evening, Officer Granell went to Rother’s residence in response to a report from Rother about Tascione’s di sappearance. Roth er told him he last saw Tascione in bed when he left for work Monday morning. Rother said none of her clothing was missing, she did not have a car, and she woul d never leave home with out telling him. Rother also told Officer Granell that Tasc ione was under a doctor’s care for depression and that both he and Tascione were alcoholics. After interviewing Ro ther, Officer Granell ente red Tascione’s name into a law enforcement computer data base to alert other law enfor cement officials about Tascione’s disappearance. He later learned that Tascione’s body had been found in the District of Columbia before he spoke with Rother. At 3:00 a.m. on the morning of Tuesday, November 7, 2000, the same day Rother reported Tascione missing, the District of Columbia police disc overed her body in the alley behind her office. Tascione’s arms were bo und behind her back with duct ta pe and her breasts had been cut from her body. A plastic bag co vered the front of her torso. The grand jury indicted Rother for first-degree murder of Tascione in violation of Code § 18.2-32.
II. On appeal from the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). At the hearing- 3 - on Rother’s motion to supp ress evidence, Detective Paul Masterson testified that three days after the police found Tascione’s b ody he and two other det ectives went to Rother’s workplace and asked Rother if he would come to the police station to a ssist in the investigation. He did not tell Rother the police had found Tascione’s bo dy. Rother agreed to go to the station and drove his own car. Rother smoked a cigarette outsid e the police station, chatted with Detective Masterson, and then followed the detectives inside th e building to an interview room. Detective Masterson testified that he prepar ed a report of the discussion he had with Rother and that a videotape, which was of poor quality, indicated other statements were made. Detective Masterson testified he took four or fi ve breaks during their ta lk, leaving Rother alone in the room with the door closed while he spoke to detectives from the District of Columbia. Although Detective Masterson did not tell Rother he was free to leave, Ro ther was not restrained and the door to the interview room was not locked. In his testimony about the interview, Detectiv e Masterson said Rother talked extensively about Tascione. Rother said he thought Tascione may have done something to herself because she used antidepressants, had once before left a suicide note, and had “talked . . . about throwing herself in front of a train.” Rother said Tascio ne’s “finances were in pretty bad shape” and “she owed quite a bit of money back to the IRS.” Rother also said he a nd Tascione argued about finances the day before she disappeared. Detective Masterson asked Rother if he had b een in “serious trouble in the past.” Rother said he had, but could not remember what it i nvolved. As they talked, Detective Masterson learned that Rother had a knife and requested to see it. After he examined the knife, Detective Masterson returned it to Rother and left the room. When Detective Masterson returned and resumed the questioning, Rother smoked a cigarette, “appeared to be upset,” and said he had left- 4 - money in his car. Detective Mast erson told Rother that he woul d have a detective lock his car. Rother repeatedly said “something must be wrong” and exhibited discomfort. An hour after the discussion first began, Det ective Masterson told Rother the police had found the body of a woman in the District of Columbia. When Rother asked, “is she dead,” the detective said he believed she was. He told Rother that the police from the District of Columbia were coming to talk to him and falsely said the police had evidence that Rother had been in the District of Columbia when the body was put inthe alley. When the detective mentioned Rother’s argument with Tascione on Sunday, Rother said he would not hurt her. The detective testified he wanted “to press [Rother] a little b it harder to see if he did have any involvement in her disappearance.” As he began to do so, Roth er asked, “Can I call a lawyer?” Detective Masterson testified he told Rother he could ha ve a lawyer if he wanted one and continued questioning Rother. The detective told Rother he needed “to do the right th ing” and said he had proof Rother was in the area of the alley. Although not reflected in his notes, Detective Ma sterson testified that he repeatedly told Rother “to do the right thing by [Tascione]” and that he told Rother, “Not only did you hurt her, but you hurt her bad.” He said to Rother that something bad had happened to Tascione and that he needed Rother “to tell . . . what happene d.” Although not reflected in his notes of the discussion, Detective Masterson al so testified that he told Ro ther three or four times that Tascione’s nagging may have been the reason Rother hurt her, that Rother “need[ed] to tell [him] how it happened,” that he “want[ed] to make it look like [Rother was] forthcoming,” and that Rother would look like a “monster” if he did no t tell what happened. Detective Masterson also acknowledged that, although not cont ained in his notes, he had said Rother was the kind of person that thought of this every night.- 5 - In response to these comments, Rother told Detective Masterson that he found Tascione dead in his bed when he came home from work Monday evening. Rother said he was scared when he found her and did not know what to do. He told the detective that he put Tascione in his car and drove into the District of Columbia. Ro ther said Tascione was not cut or bleeding when he pulled her body from the vehicle in the alley. Detective Masterson left the room again. Wh en he returned, he retrieved the knife from Rother and read Rother Miranda rights. Wh ile Detective Masterson was reading the Miranda rights, Rother said he wanted a lawyer. Dete ctive Masterson testifie d that he then stopped questioning Rother and left the r oom briefly. When Detective Masterson returned, he sat across from Rother. He testified that Rother began saying, without any questions from him, “maybe I’m a monster,” “I’m a drunk,” “I’m a rotten pe rson,” and “I’m going to jail for twenty years.” Detective Masterson then brought into the roomDetective Garvey, a District of Columbia officer. Detective Masterson said that Detective Garvey told Rother that he could not talk to Rother because he was aware Rother had received Miranda warnings, but he wanted to let Rother know that he was available if Ro ther wanted to talk. Detec tive Masterson testified that, as Detective Garvey began to leave, Rother said he would talk withoutan attorney present. The prosecutor stipulated at the suppression hearing that st atements Rother made after Detective Garvey entered the room and began que stioning Rother were inadmissible. The trial judge ruled that those statements were inadmissibl e. They were not used at trial and are not at issue on appeal. The trial judge ruled, however, that Rother wa s not in custody until Detective Masterson read to him Miranda warnings. He al so ruled that statements Rother made after Detective Masterson read the Miranda warnings, and before Detective Garvey entered the room, were spontaneous and therefore admissible.- 6 - Rother concedes that he voluntarily went to the police station and th at initially he was not in custody. He contends, however, that as the interview progressed the circumstances of the interview became custodial and, therefore, the de tective should have read Miranda warnings to him earlier in the interview. Th e Commonwealth argues that Roth er was not in custody until the detective read to him Miranda warnings. In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court described the circumstances under which the administer ing of Miranda warnings applies: Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simplyby virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited. Id. at 495. The trial judge considered th e detective’s testimony and view ed the video tape of the interview. He found that Rother drove himself to the police station, that only one police officer was present during questioning, th at the interview room was not locked, that Rother was not restrained when the det ective left the room, and that the in terview lasted no more than an hour and forty-five minutes. The tr ial judge also found as follows: [O]ut of all the things and all of the factors that the Court needs to weigh and consider as to whethe r or not he was in custody during the interrogation the thing that wa s singly most impressive to the Court was the fact that . . . Rother, upon questioning admitted that he had a knife and actually gave the knife to the detective. The detective looked at the knife and gave it back to . . . Rother.- 7 - It seems to me that that was th e most striking suggestion that this was not a custodial interrogation because the very first thing at any type of arrest that an officer do es is secure the situation for his personal safety of the person who is subject to the arrest. So by returning a weapon to . . . Rother it was at least a good suggestion that this person wasn’t under any tradition arrest. The record supports these factual findings a nd the judge’s conclusion that Rother was not in custody until the Miranda warnings were read to him. Indeed, in view of the totality of the circumstances the judge reasonably could concl ude that Rother “vol untarily accompanied [Detective Masterson] to the police station in an effort to continue th e ruse” about Tascione’s unexplained disappearance. Bailey v. Commonwealth, 259 Va. 723, 746, 529 S.E.2d 570, 583 (2000). The record does not support Rother’s claim that as the interview progressed a reasonable person would believe he was in custody. Among the circumstances to be considered when making the determination of whether a suspect was “in custody” are (1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical rest raint, (5) the duration and character of the interrogation, and (6) 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, 565-66, 500 S.E.2d 257, 262 (1998). Rother asserts that the “small and window less interrogation room,” magnified the coercion. The Supreme Court has previously hel d, however, “it is the custodial nature rather than the location of the interrogation that tri ggers the necessity for giving Miranda warnings.” Coleman v. Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983). Although Rother argues that Detective Masterson failed to allow hi m to leave the room to smoke a cigarette and to lock his car, the record establishes that the poli ce did not restrain him in any way. Rother was not handcuffed, and the interview room was not lock ed. The detective did not tell him he could- 8 - not leave and did not otherwise pr event Rother from leaving the interview room. See California v. Beheler, 463 U.S. 1121, 1125 (1983) (holding that “the ultimate inquiry is simply ‘whether there is a formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest”). Indeed, during e ach of the four or five occasi ons Detective Masterson left the interview room, Rother was alone in the r oom and he remained in the unlocked room unrestrained. Although Detective Masterson misled Rother into believing he had evidence that placed Rother in the alley where Tascione’s body was f ound, “[t]he officer’s false statement . . . has nothing to do with whether [Rother] was in custody for purposes of the Miranda rule .” Mathiason, 429 U.S. at 495-96. Because Rother wa s not under arrest or in custody, his inquiry “Can I have a lawyer?” did not affect the ju dge’s conclusion. Evidence in the record also supports the trial judge’s ruling that Rother made spontaneous statements that were not the product of interrogation. Without being prompted by any questioning, Rother said “I am going to jail for twenty years,” “I was so scared, I didn’t know what to do,” and “Maybe I am a monster, I’m a drunk.” Although Rother requested an attorney before making these outbursts, “spontaneous admission[s] not indu ced or initiated by the police” ar e not in these circumstances inadmissible. Bradshaw v. Commonwealth, 228 Va. 484, 490, 323 S.E.2d 567, 570 (1984). We, therefore, affirm the trial judge’s ruling that Rother was not in custody prior to the Miranda warnings and that Rother’s spontaneous statements after the detective read those warnings were not the product of custodial interr ogation. Accordingly, the trial judge did not err in refusing to suppress these statements.
III. Rother contends the evidence was insuffici ent to prove beyond a reasonable doubt that he murdered Tascione. Alternatively, Rother cont ends that even if the evidence proved he- 9 - committed the killing, the evidence does not support a finding of premeditation. We hold that the trial judge did not err in denying Rother’s mo tion to strike and that the evidence supports the jury’s verdict. “Every malicious homicide is murder.” Barrett v. Commonwealth, 231 Va. 102, 105, 341 S.E.2d 190, 192 (1986). “Murder . . . by any willful , deliberate, and prem editated killing . . . is murder of the first degree . . . . All murder other than capital murder and murder in the first degree is murder of the s econd degree.” Code § 18.2-32. To premeditate means to adopt a sp ecific intent to kill, and that is what distinguishes first and second degree murder. The intent to kill must come into existence at some time before the killing; it need not exist for any particular length of time. . . . “[I]t is necessary that the killing shoul d have been done on purpose and not by accident or without design . . . .” The exact state of the defendant’s mind at the time of the killing is the crucial factor in determining intent. “It is th e will and purpose to kill, not necessarily the interval of time, which determine the grade of offense.” Smith v. Commonwealth, 220 Va. 696, 700-01, 261 S.E.2d 550, 553 (1980) (citations omitted). Richard Griffin, an evidence technician, de scribed the condition in which Tascione’s body was “lying posed in the alley” with her legs splayed. Her arms were bound behind her back with duct tape, and her torso was covered w ith a plastic bag. Tascione’s breasts had been removed and were not found. Griffin testified th at the absence of sprayed blood in the alley indicated that Tascione was killed somewhere else and that the body was dumped in the alley. Based on his examination of debris found on the body and a straight line of “kitty litter or sand debris,” Griffin concluded that her body had been dragged off a truc k or vehicle with a tailgate. Following Rother’s arrest, the police searched Rother’s trailer and his station wagon and seized various items, including several rolls of duct tape and several dark color plastic bags. Jennifer Gombos, a forensic examiner, determin ed that blood stains found on the floor inside Rother’s trailer and vehicle matched the blood sample taken from Tascione. She identified a- 10 - “whitish crystalline powder” that was found in the rear corner of Rother’s vehicle as a substance “similar to clay or kitty litter.” Gombos also “observed a very large red brown heavy spatter like pattern” on a bucket found in the vehicle. Gombos determined that the stain matched Tascione’s DNA and the “color and consistency” indicated th at it was blood. Gombos testified that there was no test that she could perform to determine how old the blood stains were. Although Rother did not say he killed Tascione , Rother did tell Detective Masterson that he put her body in an alley in the District of Columbia. The medical examiner, Wendy Gunther, could not give an accurate time of death, but sh e opined that “the body had not been dead for a day because it would have been a ll cold” and testified that Tascio ne had been dead “for a little while.” According to the autops y, Tascione had “two big fresh bruises on the forehead.” The condition of Tascione’s lower lip revealed that her mouth was probably struck from the outside. Gunther opined that the unusually pale color of Ta scione’s mouth when the rest of her face was purple “suggest[ed] . . . that there was someth ing pressing against her mouth” while she was dying. The injuries to Tascione’s neck indicate d “there may have been a gripping of the neck with the thumb and fingers pinching together in th e back.” Nine of Tascione’s ribs were broken prior to death. Based on the dislocation of Ta scione’s shoulders and her broken back, Gunther opined that Tascione’s “arms were pulled backward and perhaps some pressure applied across the mouth until the arms partly dislocated and the neck broke and the lower back broke.” Gunther testified that the comb ination of these injuries prev ented Tascione from getting oxygen to the heart and so she died “fai rly shortly after all those injuries were inflicted.” Gunther also testified that the neck and back broke at the same time and so may have the ribs. Gunther concluded that the cause of d eath was “blunt trauma to the head, neck and chest” causing Tascione to asphyxiate. Gunther found “traces of dirt and white powder on the body” and “a crystalline substance” in her lungs that was probably introduced into her system after she died.- 11 - Gunther also concluded that Ta scione’s breasts were remove d post-mortem using a knife by someone that was “fairly expert using a sharp blade.” The evidence was sufficient for the jury to find that Rother dumped Tascione’s body in an alley in the District of Columbia and attempted to conceal his actions by filing a missing person’s report with the police and telling friends and neighbors that he was looking for Tascione. When Officer Granell responded to Ro ther’s missing person’s re port, Rother told him that he last saw Tascione Monday morni ng and that she was undergoing treatment for depression. Later, Rother told Detective Master son that Tascione was suffering from financial problems and previously talked about committing suicide. Although Rother told his co-worker he was late for work because he voted, the county’s assistant registrar of voters testified that her records showed Rother did not vote that Tuesday. The evidence also proved that when Rother’s former neighbor told him the police had dug in hi s yard looking for Tascione’s breasts, Rother said, “I don’t care if they dig up the whole trailer park or all of D.C., they’re not going to find them.” The night before Tascione’s body was discovered, Rother also remarked to another neighbor that “death comes in multiples of three.” From the totality of this evidence, the jury could find beyond a reasonable doubt that Ro ther maliciously killed Tascione. Rother further contends the evidence doe s not support a finding that the murder was premeditated. Rother argues the absence of pr emeditation is demonstrable because the evidence does not establish that a murder weapon was us ed in the killing and the medical examiner’s testimony establishes that the fata l injuries to Tascione could ha ve resulted from a single act. We disagree. The Supreme Court has previously upheld convi ctions for first-degree murder where the issue was premeditation and no evidence proved a weapon was used in the killing. See Clozza v. Commonwealth, 228 Va. 124, 131, 321 S.E.2d 273, 277 ( 1984) (where a 13-year-old girl died- 12 - after several beatings about her head and face causing her to hemorrhage and aspirate blood); Smith, 220 Va. at 699, 261 S.E.2d at 552 (where a wo man died from a “large depressed skull fracture caused by blunt force applie d to the . . . head”). The ev idence in this case proved that Tascione died after having her neck, back and ribs broken. Although the evidence did not prove Rother used a weapon to kill Tasc ione, the evidence clearly indica tes that Tascione died after severe physical trauma was applied to her body. The absence of evidence that a weapon was used in the killing does not ne gate the jury’s finding that Roth er intended to kill Tascione. To further support his argument that the evid ence is insufficient to prove premeditation, Rother cites the Supreme Court’s holding in Rhodes v. Commonwealth, 238 Va. 480, 384 S.E.2d 95 (1989), that the defendant, who in flicted the injuries that caused her infant child to die, did not have the requisite intent to warrant a first-degree murder convicti on. As in the present case, the evidence of intent in Rhodes was based prim arily on circumstantial evidence. Noting that “premeditation and formation of an intent to kill seldom can be proved by direct evidence” the Supreme Court ruled that a “combination of circ umstantial evidence may be sufficient.” Id. at 486, 384 S.E.2d at 98. Indeed, the Court has held th at the type of evidence a jury may consider in deciding whether to elevate a homicide to fi rst-degree murder includes the following: [T]he jury may properly consider the brutality of the attack, and whether more than one blow was struck, the disparity in size and strength between the defendant and the victim, the concealment of the victim’s body, and the defendant’s lack of remorse and efforts to avoid detection. While motive is not an essential element of the crime, it is relevant and often mo st persuasive upon the question of the actor’s intent. Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 892-93 (1982). The evidence permitted the jury to find that Rother struck Tascione about the head and mouth, forcefully broke her neck, broke nine of Tascione’s ribs, and pulled her arms until he dislocated her shoulders and broke her back. Although Tascione’s fatal injuries may have- 13 - occurred simultaneously, the number of injuries suggests that her death was not the result of one quick, sudden act, but rather the result of “s ome prolonged physical effort by [Rother, which] coupled with the . . . facts which identified [Rother] as the criminal agent, were relevant to the determination whether [Rother] acted . . . with premeditation.” Beck v. Commonwealth, 2 Va. App. 170, 177, 342 S.E.2d 642, 646 (1986). The evidence also proved Rother made elaborate efforts to conceal his involvement in her murder. Although there is no evidence in the record about motive, all of Roth er’s “actions have been whollyinconsistent with a homicide committed accidentally, or unintentionally,” Smith, 220 Va. at 702, 261 S.E.2d at 554, and consistent with a homicide committed willfull y, deliberately and with premeditation. The principle is well established that premeditation n eed only exist a moment before the fatal act is committed. Epperly, 224 Va. at 231, 294 S.E.2d at 892. In summary, the evidence was sufficient to prove that Rother killed Tascione by breaking her neck, back, and ribs and causing injury to her head; that Rother performed acts of mutilation to Tascione’s body after she died; and that he tr ansported Tascione’s body to an alley and tried to mislead the police, friends and neighbors about he r whereabouts. The combination of all of the evidence supports the jury’s finding that Roth er maliciously killed Tascione willfully, deliberately, and with premeditation.
IV. Lastly, Rother contends that the prosecutor made improper statements during his closing argument to the jury regarding the reasonabl e doubt standard. Although Rother’s attorney objected to the remarks, he failed to request a cautionary instruction or a mistrial after the trial judge did not sustain the objection. “Unle ss a defendant has made a timely motion for a cautionary instruction or for a mistrial, we will not consider his assignments of error alleging that improper remarks were made by the prosecutor.” Schmitt v. Commonwealth, 262 Va. 127, 148,- 14 - 547 S.E.2d 186, 200 (2001). Thus, we hold that Ro ther failed to preserve for appeal his objection to the prosecuto r’s closing statements.
V. For these reasons, we affirm the trial judge’s refusal to suppress Rother’s statements to the police, and we affirm the conviction for first-degree murder. Affirmed.