Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Lacy, S.J.
COMMONWEALTH OF VIRGINIA
v. Record No. 081645 OPINION BY JUSTICE DONALD W. LEMONS
June 4, 2009
MICHAEL RAY FERGUSON, JR.
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether statements made by
Michael Ray Ferguson (“Ferguson”) during a custodial
interrogation should have been suppressed because of police
failure to honor his invocation of the right to counsel.
I. Facts and Proceedings Below
On July 27, 2005, Pittsylvania County Deputy Sheriff
Kenneth Glass responded to a report of a residential burglary
and received a description of a vehicle seen leaving the
residence as a “black, small Talon Eagle with blue stripes on
it.” The description of this car was dispatched to the
surrounding jurisdictions for a “be on the lookout.”
Subsequently, an officer from the Altavista town police
department in Campbell County stopped a vehicle meeting the
description and driven by Ferguson. Altavista officers
notified Investigator Jerry A. Hagerman from Pittsylvania
County and Chief Brian Marr from the Town of Hurt in
Pittsylvania County that they had stopped Ferguson. Both
Hagerman and Marr soon arrived at the scene of the stop.
After conferring with the other officers, Hagerman asked
Ferguson to follow him to the Town of Hurt police station.
Ferguson testified that at the station he was put in a
conference room along with four police officers. Ferguson was
told that he was being questioned about a breaking and
entering, and Hagerman asked for permission to search his car.
Ferguson refused permission. Hagerman turned on a tape
recorder, told Ferguson again he was being questioned about a
breaking and entering and asked Ferguson to repeat his answer
to the search request, to which Ferguson responded, “Nah, I
want a lawyer, you know what I’m saying?”
After Ferguson requested a lawyer, Hagerman read Ferguson
his Miranda rights and asked Ferguson if he understood his
rights. Ferguson said he did. Then Hagerman asked if
Ferguson wanted to speak about the offense, to which Ferguson
replied, “Uh, My Moma [sic] said that if I get in any more
trouble I need a lawyer.” Hagerman immediately responded,
“You don’t have to talk with me. Let me talk to you now.”
Then Hagerman told Ferguson that he had a “positive
identification of your car as it was pulling out of that house
yesterday,” and that he knew the amount of goods stolen.
Specifically, Hagerman attempted to get Ferguson to talk to
him by saying, “[i]f you want to go ahead and talk to me about
this fine, if you don’t, you know you’re in trouble right now.
2
Uh, I’m not, I’m not playing with you.” Hagerman continued
asking Ferguson questions such as “[W]here was you at
yesterday? . . . Who was with you yesterday? . . . What kind
of work do you do?” and asked about Ferguson’s source of
money.
At 1:32 p.m., Hagerman stated “okay, I am going to let
you sit here a for a few minutes. The time is now 1:32
[p.m.]. This concludes the interview.” Then he turned off
the recorder. After the recorder was turned off, Ferguson
testified that Hagerman said, “he would bring the wrath of
Hell on [Ferguson].” Marr confirmed that the threat was made
and added that Hagerman said “if you ever come back to
Pittsylvania County he would put him in jail.” Hagerman
instructed Marr to remain in the room with Ferguson while he
went to obtain a search warrant for Ferguson’s car. Marr
stated that once Hagerman left the room, he and Ferguson were
in the room “waiting on Investigator Hagerman to come back.”
Marr knew Ferguson and Ferguson’s mother. After sitting
silently for “[a] couple minutes” Ferguson testified he said,
“I don’t want to go to jail.” Marr testified that they sat in
the room in silence “for several minutes” and then Ferguson
said, “I messed up”, or “this is messed up.”
Once Ferguson and Marr started talking, Ferguson
testified that Marr told him to “own up to what [he] did” and
3
to think of his daughter and that Marr “would try to help
[him] as much as he could.” Marr stated that he and Ferguson
“just talked in general” about Ferguson’s family and needing a
job and that Ferguson “needed to help his self [sic].” Marr
conceded that he was trying to get Ferguson to admit to the
crime. After Marr and Ferguson spoke, he read Ferguson his
Miranda rights again and asked Ferguson if he would prefer
speaking with him rather than with Detective Hagerman.
Ferguson stated he preferred talking with Marr.
At 2:00 p.m., the tape recorder was turned on again, and
Ferguson gave consent for a search of the car. After being
read his Miranda rights again, Ferguson “waived” his rights
and confessed to the crime of breaking and entering. Ferguson
signed an “Advice of Rights” form, which indicates his
statement began at 2:04 p.m. and ended at 2:20 p.m. Prior to
the second recorded statement, Ferguson had not admitted to
the crime.
At trial, Ferguson moved to suppress all statements made
after he said “I want a lawyer” as well as the resulting
evidence, as violative of his Fifth Amendment right to
counsel. Based on its finding that Ferguson had “reinitiated
the conversation,” the trial court denied the motion.
Ferguson entered a conditional guilty plea, preserving his
right to appeal the denial of his motion to suppress. Both a
4
panel of the Court of Appeals and the Court of Appeals sitting
en banc reversed Ferguson’s conviction. Ferguson v.
Commonwealth, 51 Va. App. 48, 69, 654 S.E.2d 328, 338 (2007)
(panel); 52 Va. App. 324, 329-30, 348, 663 S.E.2d 505, 507-08,
516 (2008) (en banc). We awarded the Commonwealth an appeal.
II. Analysis
On appeal, the Commonwealth concedes that Ferguson
properly asserted his right to counsel in a custodial
interrogation setting. The Commonwealth assigns error to the
judgment of the Court of Appeals as follows:
1. The Court of Appeals erred in ruling that Ferguson’s
confession was not admissible.
2. The Court of Appeals erred in finding the
interrogation never ceased.
3. The Court of Appeals erred in failing to find that
Ferguson reinitiated the dialogue with police, that his
subsequent waiver was knowing and voluntary, and that his
confession [was] therefore admissible.
As we noted in Zektaw v. Commonwealth, 278 Va. ___, ___,
___ S.E.2d ___, ___ (2009) (this day decided), “[t]he right to
have counsel present during a custodial interrogation is an
axiom of American law expressed in Miranda v. Arizona, 384 U.S.
436 (1966) and its progeny.” In Miranda, the United States
Supreme Court established that “[i]f the individual states that
he wants an attorney, the interrogation must cease until an
attorney is present.” 384 U.S. at 474. The United States
5
Supreme Court has further held “that an accused, . . . having
expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the
authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police.” Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981) (footnote omitted).
Further,
the prophylactic protections that the Miranda
warnings provide to counteract the “inherently
compelling pressures” of custodial interrogation
and to “permit a full opportunity to exercise the
privilege against self-incrimination,” 384 U.S.
at 467, are implemented by the application of the
Edwards corollary that if a suspect believes that
he is not capable of undergoing such questioning
without advice of counsel, then it is presumed
that any subsequent waiver that has come at the
authorities’ behest, and not at the suspect’s own
instigation, is itself the product of the
“inherently compelling pressures” and not the
purely voluntary choice of the suspect.
Arizona v. Roberson, 486 U.S. 675, 681 (1988).
Even without the concession of the Commonwealth, we have
no difficulty holding that Ferguson clearly, unambiguously and
unequivocally asserted his right to counsel during a custodial
interrogation. Part of the interrogation was tape-recorded.
Having been placed in a conference room with four police
officers, Ferguson was told that he was being questioned about
a breaking and entering offense. He immediately stated “Nah,
6
I want a lawyer, you know what I’m saying?” One cannot imagine
a clearer invocation of the right to counsel. But police did
not honor this invocation. Instead, Hagerman alternately
threatened and attempted to cajole Ferguson into cooperation.
After the invocation of the right to counsel, Hagerman
continued to read Miranda rights from a form prompting
Ferguson to say, “My Moma [sic] said that if I get in any more
trouble I need a lawyer.” Undeterred, Hagerman pressed on
with the interrogation. “[T]he term ‘interrogation’ under
Miranda refers not only to express questioning, but also to
any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v.
Innis, 446 U.S. 291, 301 (1980) (footnote omitted).
Hagerman’s statements and the totality of circumstances
surrounding this interrogation were clearly “designed to
elicit an incriminating response.”
Hagerman told Ferguson about the evidence that he had
including “positive identification of your car as it was
pulling out of that house yesterday.” Hagerman’s intent to
cause Ferguson to change his mind about having a lawyer was
clear from his own statements to Ferguson:
7
If you’re willing to talk. If you want to go
ahead and talk to me about this fine, if you
don’t, you know you’re in trouble right now. Uh,
I’m not, I’m not playing with you. . . . The
only hope you’ve got right now is to come as
clean as you can get.
Hagerman continued questioning seeking to have Ferguson
incriminate himself. He asked “Where was you at yesterday”
and “who was with you yesterday?” Hagerman continued
questioning by asking Ferguson about the source of his money.
Hagerman turned off the tape recorder, but the threats and
coercive techniques continued, all in blatant disregard of
Ferguson’s invocation of his right to counsel. According to
Marr, after the tape recorder was turned off, Hagerman told
Ferguson that “the wrath of Hell is going to come down on you”
and “if you ever come back to Pittsylvania County he would put
him in jail.”
Hagerman stated to Ferguson, “I am going to let you sit
here for a few minutes,” and directed Marr to stay in the
conference room with Ferguson. Hagerman left to seek the
assistance of a Commonwealth’s Attorney in obtaining a search
warrant for Ferguson’s vehicle. Marr stated that he and
Ferguson were “waiting on Investigator Hagerman to come back.”
According to Marr, they sat in silence alone for “several
minutes.” According to Ferguson, they sat in silence for “[a]
couple minutes.” The silence was broken when the coercive
8
environment, the threats, the cajoling, the promises of
assistance in return for cooperation, and the failure to honor
Ferguson’s request for counsel had its intended effect.
According to Ferguson, he broke the silence by saying “man I
don’t want to go to jail.” According to Marr, Ferguson said
“this is messed up” or “I messed up.” Whatever Ferguson said
was immediately followed by Marr’s further conversation and
questioning. Marr read Miranda warnings to Ferguson again and
thereafter obtained a confession.
The Commonwealth contends that when Ferguson broke his
silence in the very few minutes alone with Marr, he
reinitiated communication with police under the rule in
Edwards and consequently, further interrogation was
permissible. Whatever the significance of Ferguson’s comments
that broke the silence, they were the product of the coercive
interrogation and environment created by police. Surely,
police may not use the product of such techniques as proof of
a voluntary reinitiation of communication and subsequent
waiver of the right to counsel. Even if Ferguson’s comments
qualified as reinitiation of communication under Edwards,
where reinterrogation follows, the burden
remains upon the prosecution to show that
subsequent events indicated a waiver of the
Fifth Amendment right to have counsel present
during the interrogation . . . the question
would be whether a valid waiver of the right to
counsel and the right to silence had occurred,
9
that is, whether the purported waiver was
knowing and intelligent and found to be so under
the totality of the circumstances.
Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983) (emphasis
and internal quotation marks omitted). Under the totality of
the circumstances, we hold that this encounter was one
continuous custodial interrogation conducted in such a manner
as to deliberately disregard a clear, unambiguous and
unequivocal invocation of the right to counsel and coerce
Ferguson to incriminate himself. The person subject to
interrogation does not have to repeat his invocation of the
right to counsel – once is enough if it is clear, unambiguous
and unequivocal as it is in this case.
III. Conclusion
For the reasons stated, we hold that Ferguson’s
statements should have been suppressed because he clearly,
unambiguously, and unequivocally invoked his right to counsel.
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
10