Thomas v. Commonwealth

1

ELWOOD LEWIS THOMAS v. COMMONWEALTH OF VIRGINIA

No. 1429-22-4

Court of Appeals of Virginia

March 12, 2024

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Grace Burke Carroll ^[1] Judge

Bryan Kennedy, Senior Assistant Public Defender (Jessica Newton Assistant Public Defender, on briefs), for appellant.

Collin C. Crookenden, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.

Present: Judges Causey, Raphael and Senior Judge Clements Argued at Richmond, Virginia

MEMORANDUM OPINION ^[*]

JEAN HARRISON CLEMENTS, JUDGE

A jury convicted Elwood Lewis Thomas of two counts of rape, two counts of animate object sexual penetration, and two counts of aggravated sexual battery committed against A.R. See Circuit Court No. FE-2021-37. Subsequently, Thomas pleaded guilty to two unrelated counts of aggravated sexual battery for crimes against two other victims. See Circuit Court Nos. FE-2020-515; FE-2021-38. The trial court sentenced Thomas in all three cases at a joint sentencing hearing.

Thomas challenges his jury convictions on three grounds. First, he argues that the trial court erred by denying his motion to suppress incriminating statements he made to law enforcement during a custodial interrogation. Second, he argues that the trial court violated his due process right to present a defense by excluding his mother's testimony about facts that he contends would have shown those incriminating statements were false. Third, he argues that the trial court abused its discretion by allowing the Commonwealth to present expert testimony about delayed reporting and memory formation in child victims. Thomas also challenges his sentences in all cases on the ground that the trial court did not properly consider his mitigating evidence. We agree with Thomas that the trial court erred by not suppressing his incriminating statements. Accordingly, we reverse his jury convictions and remand for further proceedings. But we affirm Thomas's sentences for the aggravated sexual battery convictions arising from his guilty pleas.

BACKGROUND

We recite 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)). Doing so requires us to "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 to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)).

Thomas's grandmother operated a daycare at her house, where Thomas also lived. A.R. attended that daycare from 2008 to 2012, when she was between 4 and 8 years old and Thomas was between 24 and 28 years old.

Thomas "raped [A.R.] multiple times" at the daycare. On one occasion, he carried her downstairs, removed her pants, and put his penis in her vagina. A.R. testified that Thomas put his penis in her vagina "more than 20 times" from 2008 to 2012 but could not remember exactly how often he had done so. Thomas also inserted his finger into A.R.'s vagina on numerous occasions. A.R. described two such incidents as representative but again could not remember how often Thomas had abused her in that way. Thomas repeatedly told A.R. not to tell anybody about the abuse. A.R. did not disclose the abuse until July 2019, when she told her mother that Thomas had sexually abused her. A.R.'s mother contacted the police, who interviewed A.R. Child abuse forensic interviewer Anissa Tanksley also interviewed A.R. in July 2019. A.R. waited so long to disclose the abuse because she "felt scared" that "something was going to happen to" her if she reported Thomas.

A.R. was not Thomas's only victim at the daycare. In 2013, the trial court convicted him of aggravated sexual battery of a victim under 13 years old for an offense he committed in 2002 against a victim other than A.R. For that offense the trial court sentenced Thomas to 8 years in prison with 7 years suspended, conditioned upon 20 years of supervised probation. Thomas served his active sentence and began probation. The requirements of his probation included conditions related to his status as a sex offender as well as standard probation conditions, including that he follow his probation officer's instructions, be truthful and cooperative, and report as instructed.

Thomas's probation officer, Joseph Samluk, closely monitored Thomas's life for more than five years. He regulated Thomas's internet usage and prohibited him from visiting many public places. He also subjected Thomas to regular polygraph tests during which Thomas had to discuss intimate details about his life.

Based on A.R.'s delayed disclosures, Fairfax County police officers coordinated with Samluk to arrest Thomas at Samluk's office in September 2019. The police wanted to arrest Thomas at the probation office so that they could control the environment and minimize the risk to officer safety. Consistent with the plan, Samluk called Thomas and asked him to come to the probation office. When Thomas arrived for what he thought was a regular probation appointment, four law enforcement officers arrested him, searched him, and transported him to an interrogation room at the police headquarters.

Detective Steven Carter asked Samluk to introduce him and Detective Jerome Gadell, Jr., to Thomas. According to Samluk, the detectives wanted Thomas to "know that [Samluk] was there." After Thomas had waited in the interrogation room for about 25 minutes,^[2] Samluk entered with Carter and Gadell. Carter told Thomas that he wanted Samluk to introduce them to Thomas so they could "talk about some things." Samluk then told Thomas, "This is Detective Carter, Detective Gadell. They need to talk to you about some things. I'm going to be here for a little bit, but just go ahead and chat with them today, okay?" Samluk then left the room. The detectives did not ask Samluk to say those specific words. Both detectives admitted that they had never asked a suspect's probation officer to introduce them during a custodial interrogation.

After obtaining Thomas's basic information, Carter handed Thomas a Miranda consent form, saying that he was doing so because "we're the government and the government loves our forms." He also told Thomas, "I know you're going to have questions about everything, and I'm happy to talk about that stuff with you, but we have to go over this form first." When Carter told Thomas that he was writing "sexual assault" on the form, Thomas sighed loudly and buried his head in his hand. Carter then read the Miranda^[3] warnings from the consent form. He paused after each line on the form to ask if Thomas understood; Thomas sometimes nodded his head and sometimes sat silently. After reading each right, Carter asked Thomas if they all "ma[d]e sense." Thomas stated, "Yeah. I just can't believe this is happening again." Carter responded that he was more than willing to talk to Thomas about it and "clear up some things" but they needed to go through the form first.

Carter then stated that "the next part is I know what my rights are. I am willing to make a statement without a lawyer present. I understand and know what I am doing. No promises or threats have been made to me by anyone." Carter read that part of the form quickly without pausing between sentences. He then told Thomas that Thomas did not have to sign the form, that it would help the detectives if he did so, and that he could still agree to talk to the detectives even if he did not sign the form. Thomas signed the form.

Thomas made incriminating statements throughout the approximately three-hour interview. For example, he admitted to putting his mouth on A.R.'s vagina three or four times and fondling her six or seven times when she "was about maybe seven or eight" years old. At one point, Carter told Thomas that A.R. alleged that Thomas's "private part" had touched A.R.'s "private part." Thomas responded that he did not remember that happening but stated that if A.R. said it happened, it probably did. Carter suggested that maybe Thomas rubbed his penis against A.R.'s vagina without penetrating her. Thomas responded that he possibly did so. Thomas wrote a letter during the interview, stating, "Dear [A.R.] I hope you can find it in your heart to forgive me one day. I hope everything will be good with you. I hope you can still have a bless[ed] life and I want nothing but the best from and for you."

Before trial, Thomas moved to suppress the incriminating statements, arguing that they were involuntary because he had been forced to choose between waiving his Miranda rights and violating his probation conditions. At the suppression hearing, Detectives Gadell and Carter testified that Thomas had more than a dozen police contacts during the 2012 investigation and at one point provided a voluntary statement after being read his Miranda rights. Both detectives acknowledged that Thomas had been described as "mentally retarded" or "intellectually disabled" in a 1999 police report. Gadell knew that Thomas attended an alternative school and had a "mental health history" with the county government. Carter knew Thomas had attended an alternative school but was not aware whether Thomas had a mental health diagnosis.

The trial court denied Thomas's suppression motion, finding that he knowingly, intelligently, and voluntarily waived his Miranda rights. The court found that Thomas appeared to be in disbelief about what was happening to him but otherwise understood his circumstances and "appeared at ease." In finding that Thomas understood his rights, the court emphasized Thomas's prior experience with the...