(a) The court did not err in granting Jerry's motion to suppress the statements because the detectives violated his 5th Amendment right against self-incrimination by employing an impermissible "question first, warn later" strategy.

The 5th Amendment of the United States Constitution guarantees citizens the right against self- incrimination. The right attaches whenever the suspect is subjected to a custodial interrogation. A suspect is in custody if he or she does not feel free to leave, due to statements or conduct by the police or other surrounding circumstances. An interrogation occurs where police engage in direct questionning or any manifestation that would reasonably elicit an incriminating response. Before questionning in a custodial interrogation, officers must engage in certain procedural safeguards, including providing the suspect with the warnings created by the Supreme Court of the United States in Miranda v. Arizona. These include that the suspect has the right to remain silent, that anything said can and will be used against him or her in a court of law, that the suspect has a right to have an attorney present, and that an attorney will be appointed for the suspect if he or she cannot afford one. A suspect must also affirmatively invoke his right to remain silent in order for questionning to cease, and failure to assert the right may constitute a waiver. Failure to provide the warnings makes any confession in response to police questionning inadmissible in a later trial.

In this case, Jerry was subject to a custodial interrogation during both rounds of questionning by the officers. The facts indicate that he was taken into police custody, handcuffed and placed in an interrogation room. No reasonable person would have thought they were free to leave in these circumstances. Further, the detectives "interrogated" Jerry while he was in custody, asking direct questions about his involvement in the crime. Thus, Jerry's 5th Amendment rights attached during both rounds of questionning, and accordingly Miranda warnings were required. It is clear that Jerry's first confession was given in violation of his 5th Amendment rights, and is thus inadmissible. His second confession may be admissible in certain circumstances though.

Although a suspect may effectively waive his 5th Amendment right by voluntarily speaking to officers after being given Miranda warnings, such waiver must be voluntary and not the product of police misconduct. Where officers employ what is known as a "question first, warn later" strategy where two rounds of questionning are designed to elicit a confession from a suspect, in order to have later incriminating statements admitted there must be a fresh set of warnings provided in the later interrogation. Courts will also look at the amount of time between questionnings, continuity of personnel asking the questions, the demeanor of officers, and the environment in which the suspect is questionned in order to determing whether the second round is merely a continuation of the first round or a separate interrogation. If officers purposefully use this strategy in order to obtain a confession in violation of the defendants constitutional rights, such confession will almost never be admissible.

The facts here indicate that the officers purposefully did not advise Jerry of his Miranda rights during the first round of questionning. Although Jerry was given Miranda warnings before being questionned the second time, and was questionned by a different officer, Detective Lee told Jerry that he had heard his confession, and that he knew Jerry had committed the crime. Although federal courts have rejected a "cat out of the bag theory," these circumstances indicate that Jerry's confession was not given voluntarily, and that the officers intentionally used the strategy to circumvent his constitutional rights. As such, both of Jerry's confessions were properly suppressed.

(b) The evidence presented was sufficient to support Jerry's embezzlement conviction.

Despite the suppression of Jerry's confessions, his conviction may still have been supported if the prosecution presented separate and sufficient evidence to convict him. In order to be found guilty, the Commonwealth must prove all elements of the crime beyond a reasonable doubt. A defendant may be convicted with direct evidence, or entirely by circumstantial evidence.

The crime of embezzlement is proven where the defendant has misappropriated property of another with the intent to permanently deprive him of the property and has been entrusted with the property, such as in an employer-employee relationship. Here, the prosecution properly presented authenticated direct evidence that Jerry took money from the cash register in the form of the video showing Jerry committing the act. Jerry, as cashier, was an employee of the store entrusted to take care of the money in the cash register. The prosecution also submitted the manger's testimony that the money was in fact missing, and of his personal knowledge of the content of the video. Neither of these forms of evidence were "fruit of the poisonous tree" attributable to the confessions given by Jerry. Thus, this evidence sufficiently proves beyond a resaonable doubt that Jerry committed the crime of embezzlement.

(c) The evidence presented was insufficient to support Jerry's conspiracy conviction.

Under Virginia law, conspiracy is an inchoate crime where two or more people make an agreement to commit a felony. No overt act is required in furtherance of the conspiracy in Virginia; rather, the crime is complete upon making the agreement. Again, the prosecution may prove the elements of a crime by direct or circumstantial evidence, but must prove the elements beyond a reasonable doubt.

Here, Jerry's statements regarding his plan with Bob were properly suppressed. The prosecution presented no other evidence of their agreement or of Bob's involvement in the crime. The video did not show Bob participating or agreeing to participate with Jerry, and the manager testified that he did not see Bob and that he attributed the noise to something else. Thus, there is not even circumstantial evidence that Bob agreed to assist Jerry in the embezzlement, and thus Jerry's conviction for conspiracy is improper.

      (a) The Court did not err by granting Jerry's motion to suppress the statements he made to the detectives. In order to present evidence that was gained through a custodial interrogation, the police conducting the interrogation must first provide the accused with his Miranda rights prior to starting the interrogation. A custodial interrogation also requires that the accused be in police custody, such as under arrest.
      In this case, Jerry, the accused, was in police custody because he was arrested, and the facts make clear that the first detective, Detective Wilson, conducted an interrogation. However, Detective Wilson purposely did not provide Jerry with his Miranda rights. Providing Miranda rights is intended to protect the accused from coercive tactics often used by the police, and going through police interrogation is automatically considered to be coercive. Had Jerry provided his confession before entering into custody, then it would have been considered a voluntary statement and therefore admissible against him at trial.
      The statement that Jerry made to Detective Lee is also inadmissible because Lee simply repeated the same procedure that Detective Wilson had undergone, but this time corrected the mistake for the previous lack of Miranda rights warning. Even by providing the Miranda rights at the start of the interrogation in order to correct for a prior (willful) violation of the accused's right against compelled self-incrimination, police conducting interrogations cannot remedy the error unless it was harmless. Furthermore, the accused has already confessed to the crime, and therefore will not likely understand that he has the right not to provide the same information as was provided under the previous interrogation. In this case, Jerry already provided his confession to Detective Wilson, and therefore his confession to Detective Lee is also inadmissible because he already provided his confession and explained the plan of the conspiracy beforehand.
      Because the detectives failed to properly give Jerry his Miranda warnings, and the provision of another set of Miranda warnings could not correct for the prior confession, the Court did not err in granting the accused's motion to suppress the statements made.

       (b) The evidence presented by the Commonwealth was sufficient to support Jerry's conviction for embezzlement. In the Commonwealth of Virginia, the elements that the prosecution must prove in order to sustain a conviction for embezzlement include a person in a position of trust using property within his custody unlawfully and without permission of the person entrusting him, with the intent to permanently deprive.
      In this case, Jerry was in a position of trust as a store employee. The money in the cash register was in his custody, and he could only access it using his personal security code. He removed the $1,250 from the register with the intent to deprive the store manager (and the store in general) of that money permanently, as evidenced by his walking out of the store with the money and subsequently denying to the manager that he had taken the money.
      In order to convict a defendant of a crime, the Commonwealth must prove his guilt beyond a reasonable doubt as to each of the elements of the crime. The testimony provided by the store manager, along with the video footage provided by the surveillance system, was sufficient to establish all of the elements of embezzlement. Jerry could not have accessed the cash register were he not in possession of the personal security code, meaning that he was in a position of trust, with the money in the cash register in his custody, and he converted that money into his own possession without permission of the store owner with the intent to permanently deprive, all of which was shown through the video footage and through the store manager's testimony.
       The Court therefore could convict Jerry of embezzlement because the evidence demonstrated his guilt of all of the elements of the crime beyond a reasonable doubt.

      (c) The evidence presented by the Commonwealth was insufficient to support Jerry's conviction for conspiracy. In the Commonwealth of Virginia, in order to convict a defendant of conspiracy, the attorney for the Commonwealth must prove that the defendant was engaged in an express agreement to commit a crime with another and a member of the conspiracy must undertake an overt act in furtherance of the conspiracy.
      In this case, Jerry did conspire with Bob to comit the crime of embezzlement. The two of them had an agreement to steal from the convenience store, and they even concocted a plan of how to execute this theft and how to split the profits. Jerry also undertook an overt act in furtherance of the conspiracy by stealing the money from the register. There was also a meeting of the minds between the two men as to how the conspiracy should be executed. Even Bob's fleeing from the area after Jerry's arrest could be an indication of his complicity in the conspiracy.
      However, with the suppression of the confessions by the Court, including the explanation of the conspiracy, the Commonwealth does not have sufficient evidence to convict Jerry beyond a reasonable doubt. The testimony from the manager contained no indication of Bob's participation in the crime, nor did he make any mention of an agreement between Jerry and Bob. Furthermore, Bob was not available to testify on behalf of the prosecution or the defense as to the existence of an agreement between the two men. The only evidence that the Commonwealth could provide during the trial, then, was for the commission of the theft of the money from the cash register, not for conspiracy.
      Because the Commonwealth was unable to establish that there was an agreement between two parties that led to the commission of the crime as a result of the suppression of the statements that Jerry provided to the detectives, and with no further evidence provided to establish the elements of conspiracy, there is insufficient support for a conspiracy conviction.