Midkiff v. Commonwealth

Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.

THOMAS JEFFERSON MIDKIFF

v. Record No. 941716 OPINION BY JUSTICE ELIZABETH B. LACY
September 15, 1995
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

I.

Thomas Jefferson Midkiff was convicted by a jury in the

Circuit Court of Carroll County of two counts of first degree

murder and one count of arson. He received a sentence of life

imprisonment for each murder conviction and 10 years'

imprisonment and a fine of $15,000 for the arson conviction.
On appeal to the Court of Appeals, Midkiff challenged the

admissibility of a confession he made during a police

interrogation. Midkiff contended that during the course of the

questioning, he effectively invoked his constitutional right to

counsel and his right to remain silent and that the exercise of

these rights was not honored by his interrogators.

Additionally, Midkiff maintained that, considering the totality

of the circumstances, his confession was involuntary.

The Court of Appeals denied Midkiff's petition for appeal,

concluding that under the totality of the circumstances Midkiff

voluntarily answered questions from the officers and that his

statement, "I'm scared to say anything without talking to a

lawyer," was not a clear and unambiguous invocation of either
1
Justice Whiting participated in the hearing and decision of
this case prior to the effective date of his retirement on
August 12, 1995.
his right to counsel or his right to remain silent. We granted

Midkiff's petition for appeal on these same issues and will

affirm the judgment of the Court of Appeals.

II.

At 8:00 p.m. on December 3, 1991, the Hillsville Volunteer

Fire Department was dispatched to the scene of a fire at a

Carroll County residence. Inside, fire fighters found the

bodies of Sheila Marie Ring and her two-year-old daughter,

Jasmine Sutphin. Although the bodies were badly burned,

subsequent autopsies revealed that both victims died from

wounds inflicted prior to the fire. The cause of Ring's death

was determined to be multiple stab wounds. Sutphin died from a

single cut to her throat.
During the course of the investigation, Ring's landlord,

Rhudy Lineberry, told investigators that he had seen a man on

the porch of Ring's residence around 5:30 p.m. on the evening

of the fire. Lineberry later identified this man as Midkiff.

After being informed by his brother-in-law that he was a

suspect, Midkiff voluntarily went to the sheriff's office for

questioning on December 5, 1991, at 10:40 p.m. Midkiff was

read his Miranda rights before being questioned. After

approximately 20 minutes of questioning, Midkiff agreed to go

to the state police headquarters in Wytheville for a polygraph

examination and further interrogation. Although he initially

denied any involvement with the murders and the arson, during

- 2 -
the course of questioning at Wytheville Midkiff orally

confessed to both murders and signed two written confessions.

He was given his Miranda rights twice more at Wytheville, once

prior to taking three polygraph examinations and again before

signing the written confessions.

III.

Midkiff relies on two exchanges during the course of his

interrogation in Wytheville to sustain his contention that he

invoked his constitutional rights. During post-polygraph

questioning by State Police Special Agent T.S. Svard, the

following conversation transpired:
MR. SVARD: This is the only job I've had in twenty-
three (23) years where I can actually help people.
You can't help them in uniform. You can't help them
out there. Here, I can help them, help them. So I
want you to tell me what happened.

MR. MIDKIFF: I'll be honest with you, I'm scared to
say anything without talking to a lawyer.

MR. SVARD: Well, that's entirely up to you, but,
but . . .

MR. MIDKIFF: Because I, I got hoodooed big time back
in, when I was in, now, don't get me wrong, I ain't
. . .

(recorder is turned off)

After the recorder was turned back on, Sheriff Carrico

began questioning Midkiff.
SHERIFF CARRICO: Let's talk about it. Be up front
with me. I'll be up front with you. I'll get you
every bit of help I can. Was you over there? Talk
to me, T.J.

MR. MIDKIFF: I don't got to answer that, Dick, you
know.

- 3 -
 SHERIFF CARRICO: No. You've got to tell me. I
can't just up and say T.J., I got to, I got to listen
to you. You've got to tell me and the only way that
I can get you help is for you to tell me.

A.

Midkiff relies on the statement, "I'll be honest with you,

I'm scared to say anything without talking to a lawyer," to

support the contention that his confession should be suppressed

because he invoked his right to counsel. Since the United

States Supreme Court's decision in Miranda v. Arizona, 384 U.S.

436, 474 (1966), courts have recognized that the assertion of

the right to counsel is a significant event and that thereafter

all questioning must be suspended until an attorney is present.

In the years since Miranda, it has become well established

that once an accused expresses a desire to exercise his right

to counsel, authorities may not further interrogate the accused

until counsel is present unless the accused initiates further

conversation or exchanges with the authorities. Edwards v.
Arizona, 451 U.S. 477, 484-85 (1981). Miranda and its progeny

do not permit the police to continue to interrogate an accused

in custody if he has "clearly asserted his right to counsel."

Edwards, 451 U.S. at 485.

This Court has consistently held that a clear and

unambiguous assertion of the right to counsel is necessary to

invoke the Edwards rule. See Mueller v. Commonwealth, 244 Va.

386, 422 S.E.2d 380 (1992), cert. denied, 507 U.S. ___, 113

- 4 -
S.Ct. 1880 (1993); King v. Commonwealth, 243 Va. 353, 416

S.E.2d 669, cert. denied, 506 U.S. ___, 113 S.Ct. 417 (1992);

Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385 (1990),

cert. denied, 502 U.S. 824 (1991). Recently, the United States

Supreme Court, while recognizing that good practice suggests

that the police should attempt to clarify ambiguous statements,

nevertheless held that, after a voluntary and knowing waiver of

Miranda rights, officers may continue questioning until the

suspect clearly and unequivocally requests an attorney. Davis

v. United States, ___ U.S. ___, ___, 114 S.Ct. 2350, 2356-57

(1994). Therefore, the issue is whether the statement, "I'll

be honest with you, I'm scared to say anything without talking

to a lawyer," was a clear and unambiguous assertion by Midkiff

of his right to counsel.

In prior decisions, we have been faced with the task of

evaluating statements similar to the one that Midkiff asserts

is a clear invocation of his right to counsel. We have held

that defendants' questions, "Do you think I need an attorney

here?," Mueller, 244 Va. at 396, 422 S.E.2d at 387, "You did
say I could have an attorney if I wanted one?," Eaton, 240 Va.

at 250, 397 S.E.2d at 393, and "Didn't you say I have the right

to an attorney?," Poyner v. Commonwealth, 229 Va. 401, 410, 329

S.E.2d 815, 823, cert. denied, 474 U.S. 865 (1985), fell short

of being clear assertions of the right to counsel. Further,

the United States Supreme Court recently held that the

- 5 -
statement, "Maybe I should talk to a lawyer," was not an

invocation of the right to counsel and, therefore, subsequent

statements by the accused did not need to be suppressed.

Davis, ___ U.S. at ___, 114 S.Ct. at 2357.

Midkiff's statement falls within the category of

statements which do not clearly and unambiguously request an

attorney. The statement, "I'm scared to say anything without

talking to a lawyer," expresses his reservation about the

wisdom of continuing the interrogation without consulting a

lawyer; however, it does not clearly and unambiguously

communicate a desire to invoke his right to counsel. Midkiff's

statement, similar to those of the defendants in Mueller,
Eaton, and Poyner, fell short of requesting counsel in a clear

and unambiguous manner.

B.

Similar considerations are raised by Midkiff's argument

concerning his right to remain silent. Relying on the

statements, "I'll be honest with you, I'm scared to say

anything without talking to a lawyer" and "I don't got to

answer that, Dick, you know," Midkiff maintains that he invoked

his right to remain silent. Miranda recognized that if a

suspect "indicates in any manner, at any time prior to or

during questioning, that he wishes to remain silent, the

interrogation must cease." Miranda, 384 U.S. at 473-74.

However, this Court has stated that "Miranda should not be read

- 6 -
so strictly as to require the police to accept as conclusive

any statement, no matter how ambiguous, as a sign that the

suspect desires to cut off questioning." Lamb v. Commonwealth,

217 Va. 307, 312, 227 S.E.2d 737, 741 (1976).

Considering Midkiff's statements in context, it is clear

that both are statements expressing reservations about

discussing the case but do not invoke his right to remain

silent. The transcript of the interrogation session excerpted

above shows that Midkiff was interrupted by Agent Svard. When

Midkiff's statement is examined without Svard's interjection,

"I'll be honest with you, I'm scared to say anything without

talking to a lawyer . . . [b]ecause I, I got hoodooed big time

back in, when I was in, now, don't get me wrong . . .," it is

clear that Midkiff merely expressed his reservations about

answering questions based on his past experience with the

criminal justice system. As we noted recently, "[i]t is true

that [the defendant's] statements can be perceived as a

reservation about the wisdom of continuing the interrogation.

However, in spite of whatever reservations he may have had, he

elected to proceed with the interrogation and failed to

exercise his right to terminate questioning." Burket v.

Commonwealth, 248 Va. 596, 610, 450 S.E.2d 124, 132 (1994),

cert. denied, ___ U.S. ___, 115 S.Ct. 1433 (1995).

Similarly, the second statement, "I don't got to answer

that, Dick, you know," is simply an affirmation that Midkiff

- 7 -
understood his right to remain silent. Nothing within that

statement connotes a desire to cease all questioning. Here

again, we decline to read Miranda so narrowly as to compel

police interrogators to accept any statement, no matter how

equivocal, as an invocation of the right to remain silent. As

we noted in Akers v. Commonwealth, 216 Va. 40, 46, 216 S.E.2d

28, 32 (1975), had Midkiff wished to terminate the questioning

he could have simply said "I do not want to answer any more

questions."
IV.

Midkiff's last contention is that his confession was

involuntary. The standard of review for determining whether a

defendant's confession was voluntary is well established.
"Whether a statement is voluntary is ultimately a
legal rather than factual question. See Miller v.
Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 450 (1985).
Subsidiary factual questions, however, are entitled
to a presumption of correctness. Id. at 112, 106
S.Ct. at 451. The test to be applied in determining
voluntariness is whether the statement is the
'product of an essentially free and unconstrained
choice by its maker,' or whether the maker's will
'has been overborne and his capacity for self-
determination critically impaired.' Schneckloth v.
Bustamonte, 412 U.S. 218, 225 (1973). In determining
whether a defendant's will has been overborne, courts
look to 'the totality of all the surrounding
circumstances,' id. at 226, including the defendant's
background and experience and the conduct of the
police, Correll v. Commonwealth, 232 Va. 454, 464,
352 S.E.2d 352, 357 (1987); Stockton, 227 Va. at 140,
314 S.E.2d at 381."

Burket v. Commonwealth, 248 Va. at 611, 450 S.E.2d at 132

(citations omitted). If the suspect's "will has been overborne

- 8 -
and his capacity for self-determination critically impaired,"

the confession is considered involuntary and its use is

unconstitutional. Schneckloth v. Bustamonte, 412 U.S. 218, 225

(1973). Voluntariness is a question of law, subject to

independent appellate review. Harrison v. Commonwealth, 244

Va. 576, 581, 423 S.E.2d 160, 163 (1992). The test of

voluntariness is whether, considering the totality of the

circumstances, the confession was "the product of an

essentially free and unconstrained choice by its maker."
Schneckloth, 412 U.S. at 225. In assessing the surrounding

circumstances, courts will consider the defendant's background

and the details of the interrogation. Gray v. Commonwealth,

233 Va. 313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S.

873 (1987).

The record in this case indicates that Midkiff's will was

not overborne and his capacity for self-determination was not

impaired. Although Midkiff and Sheriff Carrico were friends,

there is no evidence that Sheriff Carrico used any undue

influence to get Midkiff to discuss the crimes during

interrogation. Sheriff Carrico's offer to get Midkiff "help"

if he talked to him about the murders cannot be considered

coercion or inducement. Midkiff's confession was not any less

a "free and unconstrained choice" by virtue of this friendship.

Furthermore, Midkiff is no stranger to the criminal justice

system. Prior to the contested charges, Midkiff had been

- 9 -
convicted of five felonies, starting at the age of eighteen.

He was 27 years old at the time of the murders in this case.

It is apparent that Midkiff has experienced several prior

police interrogations.

Additionally, while the interrogation process lasted well

into the early morning hours of December 6, 1991, and took

place at a location approximately 40 miles from Midkiff's home,

these factors are not sufficient to establish that his will was

overborne. All police interviews of suspects have coercive

aspects to them by virtue of the fact that the interrogating

officer is part of a system which may ultimately charge the

suspect with a crime. Oregon v. Mathiason, 429 U.S. 492, 495

(1977). With regard to the investigation in this case, Midkiff

voluntarily went to the sheriff's office for questioning after

learning from his brother-in-law that Sheriff Carrico wanted to

talk to him. In fact, when he was initially given his Miranda

rights at the sheriff's office, Sheriff Carrico testified that

Midkiff said something to the effect that "he didn't need to

know them, that he already knew them." Later, Midkiff

willingly went to the state police station to submit to

polygraph examinations and was again given his Miranda rights
before the polygraphs and before signing two written

confessions. In Midkiff's second statement, he acknowledged

that he "freely" waived his rights. The evidence demonstrates

that Midkiff voluntarily, knowingly, and intelligently waived

- 10 -
his Miranda rights and agreed to submit to questioning.

Viewing the totality of the circumstances, the evidence simply

does not suggest any other conclusion.

V.

In conclusion, we find no reversible error in the judgment

of the Court of Appeals. Midkiff did not clearly and

unambiguously invoke his constitutional right to counsel or his

right to remain silent. Under the totality of the

circumstances, his confession was voluntary. Therefore, for

the reasons set forth, we will affirm the judgment of the Court

of Appeals.
Affirmed.

- 11 -