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  • Norman A. Thomas

Secret v. Commonwealth: The Virginia Supreme Court Imposes Due Process Limitations Upon Two-Step Pol

On October 11, 2018, the Virginia Supreme Court unanimously decided Nicholas Charles Secret v. Commonwealth of Virginia, 2018 Va. LEXIS 136 (Record No. 170540). Justice Elizabeth A. McClanahan authored the Court’s to-be-published opinion. The decision affirmed Secret’s convictions for arson of an occupied structure and nine counts of attempted first-degree murder.

As a question of first impression, the Court addressed and imposed due process limitations upon the police tactic known as a “two-step” interrogation, or sometimes called a “question first” police strategy. The Court also resolved Secret’s sufficiency of the evidence challenge to his attempted first-degree murder convictions.

Secret was charged with setting an early morning fire on October 12, 2013, in “Heartwood,” the main dormitory and activity building of the Acorn Community ( in Louisa County. At the time, several persons occupied Heartwood, including some who were asleep. Hours later, a County Sheriff’s Deputy placed Secret into custody and transported him to the Sheriff’s Office for questioning by Special Agent Lazear of the Virginia State Police.

“After arriving at the Sheriff’s Office, Lazear did not discuss Secret’s status with anyone as he proceeded to the interview room, where he found Secret waiting alone[.]” There, Lazear questioned Secret “for approximately 30 minutes without specifically mentioning the fire. Lazear then asked Secret, ‘So what about Acorn made you start the fire in the kitchen this morning?’ About 12 minutes later, Secret admitted to starting the fire[.]” Only then did Lazear provide Secret with his Miranda warnings, which Secret verbally waived.

Lazear recommenced Secret’s interrogation within less than one minute. He did not seek a written Miranda waiver, pause to arrest Secret or admit anyone else to the room. He referred back to Secret’s pre-warning answers in the post-Miranda questioning to prompt Secret to repeat his previous answers. “Secret provided detailed inculpatory statements about his actions in setting fire to Heartwood. Secret was then arrested and subsequently indicted for arson and…attempted first degree murder.”

In the Louisa County Circuit Court (“trial court”), Secret moved to suppress both his pre-warnings and his post-warnings statements. As to his pre-warnings statements, Secret contended that they “were inadmissible because he had in fact been in police custody before Lazear arrived” to interrogate him. Following a suppression hearing, the trial court agreed “and ruled that Secret’s unwarned statements were inadmissible, and that ruling was not appealed by the Commonwealth.”

With respect to his post-warnings statements, Secret asserted that they were involuntary and inadmissible. “Secret claimed that Lazear elicited those statements by using a deliberate two-step interrogation strategy to circumvent Miranda, a tactic proscribed” in Missouri v. Seibert, 542 U.S. 600 (2004). “Alternatively, Secret asserted that his warned statements were inadmissible” under the voluntariness standard of Elstad v. Oregon, 470 U.S. 298 (1985), “in light of the totality of the circumstances involved in his interview with Lazear.”

At a suppression hearing Lazear testified that he did not know of Secret’s in-custody status when he arrived to interrogate him: “I did not feel he was in custody, and I did not feel he needed to be read his Miranda warnings at that time…Lazear also denied that he was aware of, or received training in, a so called ‘question first interrogation technique’ – like the one proscribed” in Seibert.

The trial court found Lazear credible and ruled that Secret’s post-warnings statements did not fall within Seibert’s Fifth Amendment-based prohibition against coercive use of the two-step interrogation tactic. See Seibert, 542 U.S. at 620-22 (Kennedy, J., concurring). The trial court further ruled that under Elstad’s voluntariness analysis, Secret’s post-warnings statements “were not the product of coercion, were knowingly and voluntarily made, and thus” were admissible in the Commonwealth’s case-in-chief.

Secret also challenged the sufficiency of the evidence as to his attempted first-degree murder convictions. At trial, he moved to strike the Commonwealth’s evidence on the charges. Inter alia, Secret argued that “the Commonwealth had failed to prove that Secret had the specific intent to kill anyone.” A specific intent to kill constitutes an element of the crime of attempted first-degree murder.

Although the trial court denied Secret’s motion to strike the charges on which the jury later convicted him, during those proceedings it found that “[W]e don’t have any evidence before the jury that [Secret] intended to kill any person individually.” The trial court then stated, “The only evidence the Court believes we have is that he basically intended to kill the people who were there” at Heartwood.

On appeal, Secret asserted the trial court here made irreconcilable findings. Secret argued that the trial court should have dismissed the attempted first-degree murder charges because he harbored no specific intent to kill the persons named in the indictments. He asserted that he acted, at most, with "general malevolence," which under Virginia law does not equate to a specific intent to kill. Moreover, with one exception, the Commonwealth’s evidence failed to establish that Secret had knowledge that any of those individuals were in Heartwood when he set the fire.

The Court of Appeals affirmed his convictions in an unpublished opinion. See Secret v. Commonwealth, 2017 Va. App. LEXIS 38 (Record No. 0853-15-2). Secret noted his appeal to the Supreme Court, which granted his Petition for Appeal.

The Court first discussed the voluntariness, and thus the admissibility of Secret’s post-warnings statements. It framed the issues as follows: “In both Elstad and Seibert, the United States Supreme Court addressed situations where a suspect, like Secret, while in police custody, made unwarned inculpatory statements in response to police questioning, and then after receiving and waiving Miranda rights made further inculpatory statements in response to additional questioning. The issue in each of those cases, as here, was whether the warned statements were voluntary for purposes of admission in the prosecution's case-in-chief at the defendant's criminal trial.”

Turning to Elstad, the Court summarized its holdings, stating that “‘absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement,’” quoting Elstad, 470 U.S. at 314. “‘[W]hile Miranda requires that an unwarned yet voluntary admission must be suppressed, ‘the admissibility of any subsequent [warned] statement should turn in these circumstances solely on whether it is knowingly and voluntarily made,’" Id., quoting 309.

The Court noted that while voluntariness constitutes a question of law subject to de novo review, “subsidiary factual questions…are entitled to a presumption of correctness.” Relying on the trial court’s findings, the Court considered “the entire course of police conduct with respect to” Secret. It found that the record supported the trial court’s conclusion that under the Elstad standard, Secret gave voluntary post-warnings statements to Lazear.

In so ruling, the Court did not address several federal and state cases cited by Secret. Those cases held that under Elstad analysis, such interrogative tactics as those employed by Lazear unduly exploited a Miranda waiver and constituted police coercion, thus rendering a post-warnings statement involuntary.

The Court expressly rejected the significance of Secret’s “altered mental state” during Lazear’s interrogation. Secret gave numerous “bizarre” responses to Lazear’s questions. The Sheriff’s deputy who initially placed Secret in custody described him akin to a “homeless” person who “may have been on some medication but not had it for awhile.” The record revealed that although Secret denied intoxication at the time of his interrogation, he was under the influence of a hallucinogenic during his interrogation.

As a matter of first impression, the Court adopted the legal test of Justice Kennedy’s concurrence in Seibert. In Seibert, a divided U.S. Supreme Court achieved a five-vote majority through a four-member plurality opinion and Justice Kennedy’s concurrence. “Under the Supreme Court's settled principles of stare decisis, ‘[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds'…Because Seibert is a plurality decision and Justice Kennedy concurred in the result on the narrowest grounds, it is his concurring opinion that provides the controlling law."

In Seibert, Justice Kennedy adopted a subjective test to evaluate constitutional challenges to two-step interrogations. In Secret, the Court interpreted the breadth of Justice Kennedy’s test as a very limited exception to Elstad, deeming it focused only “upon the ‘deliberate’ circumvention of Miranda,” citing Seibert, 542 U.S. at 622. “Justice Kennedy believed that the admissibility of post-warning statements ‘should continue to be governed by the principles of Elstad’ except ‘in the infrequent case…in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id., quoting 622.

The Court ruled the “deliberateness” determination to constitute a factual question. Thus, a trial court will not be reversed unless its deliberateness finding is plainly wrong or without evidence to support it. It noted further that Secret bore the burden “to establish that the denial of his reversal motion was reversible error.”

The Court concluded that the trial court’s “factual finding that Lazear did not deliberately use an improper two-step interrogation technique when interviewing Secret is neither plainly wrong nor without evidence to support it.” It rejected “Secret's central argument that Lazear's conduct falls within Seibert's proscription because Lazear allegedly chose ‘to remain willfully ignorant of the numerous objective, readily discernible facts indicating Secret's in-custody status.’ (Appellant's Br. 44). Such conduct, Secret asserts, equates with the employment of an intentional and coercive two-step interrogation tactic. Nothing in Justice Kennedy's concurrence in Seibert supports such an approach, where he indeed explicitly rejected the adoption of an ‘objective inquiry,’" citing Seibert, 542 U.S. at 621.

As to Secret’s challenge to the sufficiently of the evidence respecting an intent to kill, the Court likewise disallowed it. First, it found “nothing inconsistent” in the trial court’s above-quoted findings, ruling instead that they constituted “an accurate assessment of the evidence, which…satisfied the specific intent element of attempted murder.”

Second, the Court adopted California precedent to expressly reject Secret’s “related argument that there was insufficient evidence to prove that he possessed the requisite intent as to anyone…because there was no evidence that he was aware of the specific identity of anyone else within Heartwood at the time of the fire.” The Court held that such knowledge “was not required. That is because ‘[t]he mental state required for attempted murder is the intent to kill a human being, not a particular human being.’ People v. Stone, 46 Cal. 4th 131, 92 Cal. Rptr. 3d 362, 205 P.3d 272, 274 (Cal. 2009) (emphasis in original). Thus, it was enough, as the jury reasonably concluded…that he was aware that Heartwood was occupied…at the time he started the fire; and that the natural and probable consequence of his actions was that all of them—whomever they happened to be—would be killed by the fire.”

The Court cited no other precedent to support this evidence sufficiency holding. It thus answered yet another question of first impression presented by Secret’s appeal. In so doing, it expansively interpreted the “specific intent to kill” element of common law attempted first-degree murder.


In Secret, the Court broadly defined the circumstances in which the police may utilize a two-step interrogation. Under a subjective test, the tactic is constitutionally proscribed only when the police deliberately employ it to undermine a suspect’s Fifth Amendment entitlement to Miranda warnings. In all other instances, a suspect’s post-warnings statements will be evaluated under Elstad’s totality of the circumstances voluntariness analysis.

With respect to attempted first-degree murder, the element of “specific intent to kill” now is fulfilled so long as the actor harbored an “intent to kill a human being,” as opposed to a specific person or collective of persons as the target of his intent. This new and expansive elemental standard holds true notwithstanding an indictment’s naming of a particular, i.e., a specifically named human being in its charging language.

As always, I invite your comments.

Norman Thomas

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