Commonwealth v. Redmond

Present: Carrico, C.J., Lacy, Hassell, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

COMMONWEALTH OF VIRGINIA

v. Record No. 012447 OPINION BY JUSTICE LEROY R. HASSELL, SR.
September 13, 2002

TORIE DEVON REDMOND

FROM THE COURT OF APPEALS OF VIRGINIA

I.

In this appeal, we consider whether the Court of Appeals

of Virginia erred in holding that a criminal defendant clearly

and unambiguously invoked his right to counsel during a

custodial interrogation.

II.

A grand jury in the City of Virginia Beach indicted Torie

Devon Redmond for first-degree murder as defined in Code

§ 18.2-32. In a pretrial motion to suppress, the defendant

alleged that a confession he had made during a custodial

interrogation was inadmissible because he claimed that he had

invoked his right to counsel. The circuit court denied the

defendant's motion and at a trial the jury convicted him of

first-degree murder and fixed his punishment at 60 years

imprisonment. The circuit court entered a judgment confirming

the verdict, and the defendant appealed to the Court of

Appeals.
 A panel of the Court of Appeals, in an unpublished

opinion, held that the defendant made a clear and unambiguous

request for counsel during the custodial interrogation and,

therefore, the circuit court erred in denying his motion to

suppress the confession. Redmond v. Commonwealth, Record No.

0762-00-1 (May 2001). Upon a rehearing, the Court of Appeals,

en banc, in an unpublished opinion reversed the judgment of

the circuit court and remanded the case for a new trial.

Redmond v. Commonwealth, Record No. 0762-00-1 (October 2001).

The Commonwealth appeals.

III.

In May 1999, Virginia Beach City police officers arrested

the defendant for the murder of Gattis Bowling, Jr. Detective

Christopher C. Molleen interrogated the defendant, who was in

custody, in an interview room at the police station. After

Molleen made some prefatory remarks to the defendant, Molleen

advised the defendant of his Miranda rights, and the defendant

stated that he understood those rights.

During the interrogation, which was recorded on a

videotape that was made a part of the record, the following

exchange occurred:

"DETECTIVE MOLLEEN: I'm telling you. I could
not slap these cuffs on you if I didn't have enough
evidence to prove this crime. The big thing is,
you're the one that's in trouble. Okay? I ain't
going to take no notes because we're sitting talking

2
about it. I don't want you to put your foot in your
mouth and mess the rest of your life up. But you're
the only one here that can do something good for
yourself. If you can't admit that you made a
mistake, if you can't admit that things went awry,
there ain't nobody going to look out for you. . . .
This ain't the first time this has ever happened.
Something innocent started off like that and then it
just turned bad. Maybe not exactly your fault.
Maybe not exactly his fault. Things just go bad
sometimes. The point is if you can't admit that
something bad happened, then nobody should help you.
Maybe, you know, maybe you are a monster. I don't
know. Okay. But you have to tell the truth and if
you don't try to hide something, I'm going to prove
you're hiding it. And, ultimately, you know, you're
the one that's going to suffer the consequences, not
me.

"REDMOND: I don't want to seem arrogant or
nothing like that.

"DETECTIVE MOLLEEN: I don't want, Torie.

"REDMOND: These are some pretty deep charges.

"DETECTIVE MOLLEEN: Listen to what I got to
say. I don't think. I don't want you to seem
arrogant. Okay. I don't want you to seem arrogant.
I want you to do the best thing for yourself. And
the best thing for yourself is you need to take some
of the heat off your back. Yeah, they are very
serious charges. This is the only opportunity
you're ever going to talk and give your side.
Period. This is . . .

"REDMOND: Can I speak to my lawyer? I can't
even talk to lawyer before I make any kinds of
comments or anything?

"DETECTIVE MOLLEEN: You can do anything you
like, but I'm telling, I'm telling you like this.
You have the freedom to do anything you want. You
have the freedom to go to sleep right now if you
want to do that. Okay? You have the freedom to sit
here and talk to me. Okay? The point is and what
I'm trying to tell you is, this is your opportunity;

3
 this is your time. There ain't tomorrow, there
ain't later. Okay? There's not later. There is no
later. And I'm trying, I'm trying to give you
because you are a 24 year old man the opportunity to
help yourself out a little bit. You got a lot of
years to live. Okay. You got a lot of people
probably around you who really care for you. A lot
of people over in the area talked highly of you. A
couple of detectives talked highly of you last
night. Okay. And I don't think in my mind, and I
can't really prove that you went over there with
intentions of doing anything wrong. But sometimes
bad things can happen."

Approximately two hours after Detective Molleen had

initiated his interview of the defendant, another police

officer, Detective Gallagher, entered the interrogation room

and began to question the defendant about an unrelated robbery

investigation. When Detective Gallagher began to question the

defendant about this robbery, the defendant stated: "I would

like to speak to a lawyer on this one." Detective Gallagher

terminated his interrogation of the defendant.

IV.

The Commonwealth contends that the Court of Appeals erred

by failing to approve the circuit court's "factual

determination that the defendant did not unequivocally invoke

his right to counsel." The Commonwealth argues that the

circuit court made a factual determination that Redmond's

statements did not reflect an unambiguous, unequivocal

invocation of his right to counsel and that the Court of

Appeals should have applied a clearly erroneous standard when

4
reviewing the circuit court's ruling. Responding, the

defendant asserts that his statements were sufficient to

invoke his right to counsel.

A.

Initially, we observe that we disagree with the

Commonwealth's contention that this Court must apply the

clearly erroneous standard of review to determine whether the

circuit court properly concluded that the defendant's

assertion of his right to counsel was ambiguous. We are of

opinion that the issue whether a defendant clearly requested

an attorney during a custodial interrogation is a mixed

question of law and fact and, as the Supreme Court has

explained in a different context, this issue ultimately "calls

for the application of a constitutional standard to the facts

of a particular case, and in this context de novo review of

that question is appropriate." United States v. Bajakajian,

524 U.S. 321, 336-37 n.10 (1998). This standard of review,

which also has been described by the Supreme Court as

independent appellate review, "tends to unify precedent and

will come closer to providing law enforcement officers with a

defined 'set of rules' " that will, in most instances, enable

these officers to honor an accused's constitutional rights.

Ornelas v. United States, 517 U.S. 690, 697 (1996) (quoting

New York v. Belton, 453 U.S. 454, 458 (1981)); accord United

5
States v. Arvizu, 534 U.S. 266, ___, 122 S.Ct. 744, 751

(2002); Cooper Industries Inc. v. Leatherman Tool Group, Inc.,

532 U.S. 424, 436 (2001).

However, in conducting its independent review, an

appellate court must review the circuit court's findings of

historical fact only for clear error, and the appellate court

must give due weight to inferences drawn from those factual

findings. See Ornelas, 517 U.S. at 699; accord Arvizu, 534

U.S. at ___, 122 S.Ct. at 751; Cooper Industries, 532 U.S. at

435; Bajakajian, 524 U.S. at 336-37 n.10.

Thus, in applying independent appellate review of the

mixed question of law and fact whether a defendant clearly

requested an attorney during a custodial interrogation, "the

determination of what [the defendant] actually said is a

question of fact that we review only for clear error. . . .

Whether those words are sufficient to invoke the right to

counsel is a legal determination that we review de novo."

United States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir.

1993).

B.

The Commonwealth argues that in making a determination

whether the defendant made a clear assertion of his right to

counsel, we must consider the police interrogation of the

defendant in its entirety, including statements in the

6
interrogation that the defendant made after his purported

request for counsel. The Commonwealth contends that these

subsequent statements indicate that the defendant knew how to

clearly assert his right to counsel when he desired to do so.

We decline the Commonwealth's request to consider whether

the defendant invoked his right to counsel by relying upon

subsequent responses that he made to questions asked by police

officers. As the Supreme Court has held, an accused's

subsequent statements are not relevant to the question whether

he invoked his right to counsel. A statement either asserts

or fails to assert an accused's right to counsel. Smith v.

Illinois, 469 U.S. 91, 97-98 (1984) (per curiam).

C.

The Supreme Court held in Miranda v. Arizona, 384 U.S.

436, 469-73 (1966), that the police must inform a suspect, who

is subject to a custodial interrogation, of his right to an

attorney and his right to have that attorney present during

the interrogation. The police must explain these rights to

the suspect before the interrogation begins. If a suspect

waives his right to counsel after he has received Miranda

warnings, the police officers are free to interrogate him, but

if the suspect requests counsel at any time during the

interrogation, the interrogation must cease until an attorney

has been made available to the suspect or the suspect

7
reinitiates the interrogation. Edwards v. Arizona, 451 U.S.

477, 484-85 (1981); accord Davis v. United States, 512 U.S.

452, 458 (1994); McNeil v. Wisconsin, 501 U.S. 171, 176-77

(1991); Minnick v. Mississippi, 498 U.S. 146, 150 (1990);

Patterson v. Illinois, 487 U.S. 285, 291 (1988); Arizona v.

Roberson, 486 U.S. 675, 680-81 (1988).

In Davis, 512 U.S. at 458-59, the Supreme Court stated

the following principles which we must apply in this appeal:

"The applicability of the '"rigid" prophylactic
rule' of Edwards requires courts to 'determine
whether the accused actually invoked his right to
counsel.' Smith v. Illinois, [469 U.S. at 95]
(emphasis added), quoting Fare v. Michael C., 442
U.S. 707, 719 (1979). To avoid difficulties of
proof and to provide guidance to officers conducting
interrogations, this is an objective inquiry. See
Connecticut v. Barrett, [479 U.S. 523, 529 (1987)].
Invocation of the Miranda right to counsel
'requires, at a minimum, some statement that can
reasonably be construed to be an expression of a
desire for the assistance of an attorney.' McNeil
v. Wisconsin, 501 U.S. at 178. But if a suspect
makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light
of the circumstances would have understood only that
the suspect might be invoking the right to counsel,
our precedents do not require the cessation of
questioning. . . .
"Rather, the suspect must unambiguously request
counsel. As we have observed, 'a statement either
is such an assertion of the right to counsel or it
is not.' Smith v. Illinois, 469 U.S. at 97-98
. . . . Although a suspect need not 'speak with the
discrimination of an Oxford don,' . . . he must
articulate his desire to have counsel present
sufficiently clearly that a reasonable police
officer in the circumstances would understand the
statement to be a request for an attorney. If the
statement fails to meet the requisite level of

8
 clarity, Edwards does not require that the officers
stop questioning the suspect."

Explaining the rationale underlying these principles, the

Supreme Court stated:

"In considering how a suspect must invoke the
right to counsel, we must consider the other side of
the Miranda equation: the need for effective law
enforcement. Although the courts ensure compliance
with the Miranda requirements through the
exclusionary rule, it is police officers who must
actually decide whether . . . they can question a
suspect. The Edwards rule – questioning must cease
if the suspect asks for a lawyer – provides a bright
line that can be applied by officers in the real
world of investigation and interrogation without
unduly hampering the gathering of information. But
if we were to require questioning to cease if a
suspect makes a statement that might be a request
for an attorney, this clarity and ease of
application would be lost. Police officers would be
forced to make difficult judgment calls about
whether the suspect in fact wants a lawyer even
though he has not said so, with the threat of
suppression if they guess wrong. We therefore hold
that, after a knowing and voluntary waiver of the
Miranda rights, law enforcement officers may
continue questioning until and unless the suspect
clearly requests an attorney."

Davis, 512 U.S. at 461.

Prior to the Supreme Court's decision in Davis, this

Court consistently held that a clear and unambiguous assertion

of the right to counsel is necessary to invoke the rule

established in Edwards. See Mueller v. Commonwealth, 244 Va.

386, 396, 422 S.E.2d 380, 387 (1992) (defendant's question

"Do you think I need an attorney here?" not a clear assertion

of right to counsel), cert. denied, 507 U.S. 1043 (1993);

9
Eaton v. Commonwealth, 240 Va. 236, 250, 252-54, 397 S.E.2d

385, 393, 395-96 (1990) (defendant's question "You did say I

could have an attorney if I wanted one?" not a clear assertion

of right to an attorney), cert. denied, 502 U.S. 824 (1991);

Poyner v. Commonwealth, 229 Va. 401, 410, 329 S.E.2d 815, 823

(defendant's question "Didn't you say I have the right to an

attorney?" not a clear assertion of right to counsel), cert.

denied, 474 U.S. 865 (1985). And, this Court applied Davis in

Midkiff v. Commonwealth, 250 Va. 262, 266-67, 462 S.E.2d 112,

115 (1995) (defendant's statement "I'll be honest with you,

I'm scared to say anything without talking to a lawyer" not a

clear assertion of right to counsel).

Applying the correct standard of review, as well as the

substantive principles articulated by the Supreme Court and

this Court's precedent, we hold that the defendant failed to

make a clear and unambiguous assertion of his right to

counsel. Upon our independent review of the record that

includes a videotape of the custodial interrogation, and

giving due weight to the inferences drawn from the historical

facts therein, we conclude that the defendant's questions,

"Can I speak to my lawyer? I can't even talk to [a] lawyer

before I make any kinds of comments or anything?," were not a

clear and unambiguous assertion of his right to counsel. Even

though the circuit court in this instance did not make

10
specific factual findings, the historical facts such as the

context of the defendant's questions, the tone of his voice,

his voice inflections, and his demeanor support the conclusion

that this defendant did not make a clear assertion of his

right to counsel.

At best, the defendant's questions may be construed as a

desire on his part to obtain more information about his

Miranda rights. However, the police officers had given the

defendant his Miranda rights, and the defendant stated during

the interrogation that he understood those rights.

Additionally, the Supreme Court pointed out in Davis that

"when a suspect makes an ambiguous or equivocal statement it

will often be good police practice for the interviewing

officers to clarify whether [the suspect] actually wants an

attorney. . . . But we decline to adopt a rule requiring

officers to ask clarifying questions. If the suspect's

statement is not an unambiguous or unequivocal request for

counsel, the officers have no obligation to stop questioning

him." 512 U.S. at 461-62. We hold that a reasonable police

officer, in light of the circumstances surrounding the

defendant's questions, would have concluded that the defendant

did not invoke his right to counsel during the custodial

interrogation.

V.

11
 We will reverse the judgment of the Court of Appeals, and

we will reinstate the judgment of the circuit court here.

Reversed and final judgment.

JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE LEMONS
join, concurring in the result.

While I agree that the judgment of the Court of Appeals

should be reversed, I write separately because I conclude that

it is not necessary, under the facts and circumstances of this

case, to decide whether the defendant unequivocally invoked

his right to counsel. Even if we assume, without deciding,

that the defendant did invoke his right to counsel, and that

the trial court thus erred in denying the motion to suppress

the defendant’s confession, the overwhelming weight of the

remaining evidence renders any such error harmless beyond a

reasonable doubt.

“ ‘[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it

was harmless beyond a reasonable doubt;’ otherwise the

conviction under review must be set aside.” Lilly v.

Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999)

(quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

In making that determination, the reviewing court is to
consider a host of factors, including the importance of
the tainted evidence in the prosecution's case, whether
that evidence was cumulative, the presence or absence of
evidence corroborating or contradicting the tainted

12
 evidence on material points, and the overall strength of
the prosecution’s case.

Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986)). See also Pitt v. Commonwealth, 260 Va. 692, 695, 539

S.E.2d 77, 78 (2000), cert. denied, 532 U.S. 978 (2001).

At the trial in this case, the Commonwealth presented

substantial incriminating evidence independent of the

defendant’s confession. In a separate non-custodial

statement, the defendant admitted to being at the victim’s

apartment building on the morning of the murder but claimed

that he did not go inside. However, he stated that the victim

owed him five dollars from a card game. The serrated knife

used to kill the victim was found in a wooded area between the

victim’s apartment and the apartment where the defendant was

living with his grandmother. A gray T-shirt stained with

blood was found in a clothes hamper in the apartment where the

defendant resided. 1 Forensic testing confirmed that the DNA

profile extracted from the blood swabbed from the knife blade

and the blood on the gray T-shirt were both consistent with

the victim’s DNA profile, to a statistical probability of 1 in

160 million in the Caucasian population, 1 in 620 million in

the black population, and 1 in 79 million in the Hispanic

1
In his non-custodial statement to the police, the
defendant admitted that he was wearing a gray sweatshirt on
the morning that he was at the victim’s apartment building.

13
population. 2 Given these facts, even without consideration of

the challenged confession, the jury was presented with

“ ‘overwhelming evidence’ ” that the defendant is the person

who committed this crime. Jenkins v. Commonwealth, 244 Va.

445, 454, 423 S.E.2d 360, 366 (1992) (quoting Milton v.

Wainwright, 407 U.S. 371, 372-73 (1972)), cert. denied, 507

U.S. 1036 (1993).

As to the question whether the confession could have been

used by the jury to elevate the offense to first degree

murder, I conclude that it could not have played a role in

that determination. Nothing in the defendant’s confession

establishes that he acted with premeditation. Instead, his

confession would have supported a theory of self-defense.

Furthermore, there is compelling evidence, independent of

the defendant’s confession, that he murdered the victim with

premeditation. The forensic pathologist who performed the

autopsy identified multiple incised wounds on the victim’s

neck, upper chest, chin, and upper back, estimated to be at

least 16 separate wounds. Although the pathologist could not

determine whether the neck wounds were inflicted by someone

standing in front of or behind the victim, the pathologist

opined that the knife had to have been held against the neck

long enough and hard enough to create certain parallel

2
The victim was a 57-year-old white male.

14
scratches that he found on the victim’s neck. See Remington

v. Commonwealth, 262 Va. 333, 353, 551 S.E.2d 620, 632 (2001)

(stabbing victim eight to ten times established specific

intent to kill), cert. denied, 122 S.Ct. 1928 (2002). Also,

the victim had several underlying medical conditions. He had

a tracheotomy tube in place (commonly referred to as a

breathing tube), suffered from emphysema of the lungs, and

usually ambulated by using a “walker.”

Thus, I am convinced that, even if the admission of the

defendant’s statement was error, such error in this case was

harmless beyond a reasonable doubt. For this reason, I would

reverse the judgment of the Court of Appeals and reinstate the

defendant’s conviction.

JUSTICE KOONTZ, dissenting.

I respectfully dissent. This is not a complicated case;

the pertinent historical facts are not disputed and the legal

principles applicable to the resolution of the issue presented

are well established. Torie Devon Redmond was arrested for

the murder of Gattis Bowling, Jr., and subsequently

interrogated regarding that crime by Detective Christopher C.

Molleen while held in custody at the City of Virginia Beach

Police Department. Detective Molleen advised Redmond of his

Miranda rights, and several minutes later Redmond stated “Can

15
I speak to my lawyer?” However, Detective Molleen continued

to interrogate Redmond in the absence of a lawyer until

Redmond ultimately confessed to stabbing Bowling with a

serrated butcher knife. The issue presented is simply whether

a reasonable police officer in these circumstances would have

understood Redmond’s statement to be a request for an

attorney. If so, then Detective Molleen was required to cease

the interrogation until a lawyer was provided to Redmond as

mandated by the Supreme Court’s decisions in Miranda v.

Arizona, 384 U.S. 436, 469-73 (1966), Edwards v. Arizona, 451

U.S. 477, 484-85 (1981), and Davis v. United States, 512 U.S.

452, 458 (1994).

It is difficult to find ambiguity in the statement “Can I

speak to my lawyer?” Objectively, such a statement would be

readily understood and commonly accepted as a request for

counsel. However, a plurality of the Court, in an opinion

authored by JUSTICE HASSELL, rejects this clear and

unambiguous assertion of the constitutional right to counsel

by relying, in large part, upon its subjective interpretation

of Redmond’s “tone of [] voice, his voice inflections, and his

demeanor” after reviewing the videotape of Redmond’s

confession. These unparticularized mannerisms are at best

peculiar to Redmond. Moreover, they shed little light, if

any, upon the objective inquiry of what a reasonable police

16
officer would have understood from what Redmond actually

stated.

Finally, the plurality concludes that Redmond’s statement

and the additional statement “I can’t even talk to [my] lawyer

before I make any kinds of comments or anything?” may be

construed as “a desire on his part to obtain more information

about his Miranda rights.” * In my view, the additional

statement emphasizes Redmond’s desire to have the benefit of

counsel before the interrogation continued. More importantly,

when considered in context there can be no doubt that a

reasonable police officer would have understood that Redmond

was requesting counsel rather than merely a further

explanation of his Miranda rights. Redmond had indicated that

he understood his right to have a lawyer present during the

interrogation and that he could exercise that right at any

time and not answer any questions or make any statements.

Redmond’s statements were entirely consistent with Redmond’s

*
The plurality’s reliance on Mueller v. Commonwealth, 244
Va. 386, 422 S.E.2d 380 (1992), Eaton v. Commonwealth, 240 Va.
236, 397 S.E.2d 385 (1990), and Poyner v. Commonwealth, 229
Va. 401, 329 S.E.2d 815 (1985), to support this conclusion is,
in my view, unpersuasive. In Eaton and Poyner, the
defendants’ statements were objectively requests for
clarification of their Miranda rights. See Eaton, 240 Va. at
250, 397 S.E.2d at 393 (“You did say I could have an attorney
if I wanted one?”); Poyner, 229 Va. at 405, 329 S.E.2d at 820
(“Didn’t you tell me I had the right to an attorney?”). In
Mueller, the defendant asked the detective, “Do you think I

17
understanding of his right to do so. It requires an almost

total disregard for human experience to conclude that in such

circumstances a reasonable police officer would not have

understood that Redmond was requesting counsel, even if

Detective Molleen subjectively did not understand Redmond’s

statements to be such a request.

Because Redmond was denied his constitutional right to

counsel, his subsequent confession was constitutionally infirm

and inadmissible in evidence at his trial. The Commonwealth

contends that even if the trial court erred in admitting

Redmond’s confession, the error was harmless because of the

“overwhelming” independent evidence of Redmond’s guilt.

Jenkins v. Commonwealth, 244 Va. 445, 454, 423 S.E.2d 360, 366

(1992). A different plurality of the Court, in an opinion

authored by JUSTICE KINSER, declines to address the merits of

Redmond’s claim that he was denied his right to counsel, and

instead adopts the harmless error argument asserted by the

Commonwealth.

We have applied the harmless error doctrine in a case

involving a confession admitted in violation of the Fifth and

Sixth Amendments in Pearson v. Commonwealth, 221 Va. 936, 945,

275 S.E.2d 893, 899 (1981). Where constitutional error

need an attorney here?” Mueller, 244 Va. at 396, 422 S.E.2d
at 387.

18
occurs, we are required to assess whether that error was

harmless beyond a reasonable doubt. Thus, we must determine

“whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.”

Chapman v. California, 386 U.S. 18, 23 (1967). “In making

that determination, the reviewing court is to consider a host

of factors, including the importance of the tainted evidence

in the prosecution’s case, whether that evidence was

cumulative, the presence or absence of evidence corroborating

or contradicting the tainted evidence on material points, and

the overall strength of the prosecution’s case.” Lilly v.

Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999).

Applying this standard, I cannot agree with the

determination that the erroneous admission of Redmond’s

confession was harmless. Redmond’s confession included his

statement that he stabbed the victim and the circumstances

under which that occurred. No other independent evidence

established the circumstances under which the stabbing

occurred. Thus, while there is ample independent evidence

incriminating Redmond, there is insufficient evidence to

establish that Redmond was guilty of the first degree murder

of the victim. Under such circumstances, it cannot be

concluded beyond a reasonable doubt that the erroneous

admission of Redmond’s confession did not contribute to his

19
conviction of first degree murder by the jury. Cf. id. at

552, 523 S.E.2d at 209 (holding that improperly admitted

evidence corroborating defendant’s role as triggerman in

capital murder was not harmless error where evidence otherwise

would have supported conviction for first degree murder).

For these reasons, I would affirm the judgment of the

Court of Appeals of Virginia reversing the judgment of the

trial court and remanding the case for a new trial.

20